Case C-314/01

Siemens AG Österreich and ARGE Telekom & Partner

v

Hauptverband der österreichischen Sozialversicherungsträger

(Reference for a preliminary ruling from the Bundesvergabeamt (Austria))

(Public contracts – Directive 89/665/EEC – Review procedures concerning the award of public contracts – Effects of a decision by the body responsible for review procedures annulling the decision by the contracting authority not to revoke the procedure by which a contract was awarded – Restriction on the use of subcontracting)

Summary of the Judgment

1. Preliminary rulings – Jurisdiction of the Court – Limits – General or hypothetical questions – Determination by the Court as to whether it has jurisdiction

(Art. 234 EC)

2. Approximation of laws – Review procedures concerning the award of public supply and public works contracts – Directive 89/665 – Obligation on Member States to provide for review procedures – Clause in an invitation to tender incompatible with Community rules – Obligation to make it possible to rely on that incompatibility in a review procedure

(Council Directive 89/665, Arts 1(1) and 2(7))

1. The procedure provided for by Article 234 EC is an instrument of cooperation between the Court of Justice and national courts. In the context of that cooperation, the national court or tribunal seised of the dispute, which alone has direct knowledge of the facts giving rise to the dispute and must assume responsibility for the subsequent judicial decision, is best placed to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court.

The fact none the less remains that it is for the Court, if need be, to examine the circumstances in which the case was referred to it by the national court or tribunal, in order to assess whether it has jurisdiction and in particular to determine whether the interpretation of Community law which is requested bears any relation to the actual nature and subject-matter of the main proceedings, in order that the Court will not be required to give opinions on general or hypothetical questions. If it should appear that the question raised is manifestly irrelevant for the purposes of deciding the case, the Court must declare that there is no need to proceed to judgment.

(see paras 33-35)

2. Directive 89/665 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 92/50 relating to the coordination of procedures for the award of public service contracts, and in particular Articles 1(1) and 2(7) thereof, must be construed as meaning that, in the case where a clause in an invitation to tender is incompatible with Community rules on public contracts, the national legal systems of the Member States must provide for the possibility of relying on that incompatibility in the review procedures referred to in Directive 89/665.

(see para. 50, operative part)

JUDGMENT OF THE COURT (Sixth Chamber) 18 March 2004 (1)

(Public contracts – Directive 89/665/EEC – Review procedures concerning the award of public contracts – Effects of a decision by the body responsible for review procedures annulling the decision by the contracting authority not to revoke the procedure by which a contract was awarded – Restriction on the use of subcontracting)

In Case C-314/01,

REFERENCE to the Court under Article 234 EC by the Bundesvergabeamt (Austria) for a preliminary ruling in the proceedings pending before that tribunal between

and

on the interpretation of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33), as amended by Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1),

THE COURT (Sixth Chamber),,

composed of: V. Skouris, acting for the President of the Sixth Chamber, C. Gulmann, J.-P. Puissochet, R. Schintgen (Rapporteur) and N. Colneric, Judges,

Advocate General: L.A. Geelhoed,

after considering the written observations submitted on behalf of:

after hearing the oral observations of Hauptverband der österreichischen Sozialversicherungsträger, represented by T. Hamerl, Rechtsanwalt; of the Austrian Government, represented by M. Fruhmann; and the Commission, represented by M. Nolin, assisted by R. Roniger, at the hearing on 18 September 2003,

after hearing the Opinion of the Advocate General at the sitting on 20 November 2003,

gives the following

‘The Member States shall take the measures necessary to ensure that, as regards contract award procedures falling within the scope of Directives 71/305/EEC, 77/62/EEC and 92/50/EEC, decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the provisions set out in the following articles and, in particular, Article 2(7), on the grounds that such decisions have infringed Community law in the field of public procurement or national rules implementing that law.’

‘1.

(a)

(b)

(c)

…

6.Furthermore, except where a decision must be set aside prior to the award of damages, a Member State may provide that, after the conclusion of a contract following its award, the powers of the body responsible for the review procedures shall be limited to awarding damages to any person harmed by an infringement.

7.‘In the contract documents, the contracting authority may ask the tenderer to indicate in his tender any share of the contract he may intend to subcontract to third parties.

This indication shall be without prejudice to the question of the principal service provider’s liability.’

‘1.

2.…

(c)

…

(h)

3.…’

‘1.

2.‘During the tendering period the invitation to tender may be withdrawn for compelling reasons, especially if before the end of the tendering period circumstances become known which, had they been known earlier, would not have led to an invitation to tender or would have led to an invitation to tender essentially different in substance.’

‘Before the contracting authority proceeds to the selection of the tender qualifying for the award of the contract, it should immediately eliminate the following tenders on the basis of the results of the assessment:

…

(9)

...’.

‘2.

(1)

(2)

3.‘1.

(1)

(2)

...

3.‘A contract shall be null and void if it infringes a statutory prohibition or is contrary to acceptable moral values.’

‘A maximum of 30% of the services may be subcontracted, provided that the characteristic parts of the contract, namely, project management, system design, development, construction, delivery and management of the central components of the overall system specific to the project development, delivery and management of the life-cycle of the cards and development and delivery of the terminals remain with the tenderer or tender consortium’.

(1)

(2)

(3)

(4a)

(4b)

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the Bundesvergabeamt by order of 11 July 2001, hereby rules:

Skouris

Gulman

Puissochet

Schintgen

Colneric

Delivered in open court in Luxembourg on 18 March 2004.

R. Grass

V. Skouris

Registrar

President