Universale-Bau AG, Bietergemeinschaft: 1) Hinteregger & Söhne Bauges.m.b.H. Salzburg, 2) ÖSTÜ-STETTIN Hoch- und Tiefbau GmbH v Entsorgungsbetriebe Simmering GmbH.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Skouris
• ECLI: ECLI:EU:C:2002:746
• Date: 12 December 2002
• Docket Number: C-470/99
• Procedure Type: Reference for a preliminary ruling

Case C-470/99


Universale-Bau AG
and
Bietergemeinschaft:
Hinteregger & Söhne Bauges.mbH Salzburg,
ÖSTÜ-STETTIN Hoch- und Tiefbau GmbH

v
Entsorgungsbetriebe Simmering GmbH


(Reference for a preliminary ruling from the Vergabekontrollsenat des Landes Wien)

«(Directive 93/37/EEC – Public works contracts – Definition of contracting authority – Body governed by public law – Restricted procedure – Rules for weighting of criteria for selecting candidates invited to tender – Advertisement – Directive 89/665/EEC – Review procedures relating to public procurement – Time-limits for review)»

Opinion of Advocate General Alber delivered on 8 November 2001

I - 0000

Judgment of the Court (Sixth Chamber), 12 December 2002

I - 0000

Summary of the Judgment

1..

Approximation of laws – Procedures for the award of public works contracts – Directive 93/37 – Contracting authorities – Body governed by public law – Definition – Body which was not established to satisfy specific needs in the general interest not having an industrial or commercial character, but in the meantime satisfying such needs – Covered

(Council Directive 93/37, Art. 1(b), second subpara.)

2..

Approximation of laws – Review procedures relating to the award of public supply and public works contracts – Directive 89/665 – Time-limit for contesting decisions of contracting authorities and for raising any allegedly unlawful measures – Whether permissible

(Council Directive 89/665)

3..

Approximation of laws – Procedures for the award of public works contracts – Directive 93/37 – Restricted procedure – Rules laid down in advance for weighting the criteria for selecting the candidates invited to tender – Publication required

(Council Directive 93/37)

1.

The first indent of the second subparagraph of Article 1(b) of Directive 93/37 concerning the coordination of procedures for the award of public works contracts provides that a body governed by public law means a body established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character. For the purposes of deciding whether a body satisfies that condition, it is necessary to consider the activities which it actually carries on. It follows that a body which was not established to satisfy specific needs in the general interest not having an industrial or commercial character, but which has subsequently taken responsibility for such needs, which it has since satisfied, fulfils that condition provided that the assumption of responsibility for the satisfaction of those needs can be established objectively. see paras 56, 63, operative part 1

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, does not preclude national legislation which provides that any application for review of a contracting authority's decision must be commenced within a time-limit laid down to that effect and that any irregularity in the award procedure relied upon in support of such application must be raised within the same period, if it is not to be out of time, with the result that, when that period has passed, it is no longer possible to challenge such a decision or to raise such an irregularity, provided that the time-limit in question is reasonable. First, the full implementation of the objective sought by Directive 89/665 would be undermined if candidates and tenderers were allowed to invoke, at any stage of the award procedure, infringement of the rules of public procurement, thus obliging the contracting authority to restart the entire procedure in order to correct such infringements. Second, the setting of reasonable limitation periods for bringing proceedings must be regarded as satisfying, in principle, the requirement of effectiveness under Directive 89/665, since it is an application of the fundamental principle of legal certainty.see paras 75-76, operative part 2

3.

Directive 93/37 concerning the coordination of procedures for the award of public works contracts is to be interpreted as meaning that where, in the context of a restricted procedure, the contracting authority has laid down in advance the rules for weighting the criteria for selecting the candidates who will be invited to tender, it is obliged to state them in the contract notice or tender documents. Such an interpretation is the only one which is apt to guarantee an appropriate level of transparency and, therefore, compliance with the principle of equal treatment in the procedures for awarding contracts to which that directive applies. see paras 99-100, operative part 3

JUDGMENT OF THE COURT (Sixth Chamber)
12 December 2002 (1)

((Directive 93/37/EEC – Public works contracts – Definition of contracting authority – Body governed by public law – Restricted procedure – Rules for weighting of criteria for selecting candidates invited to tender – Advertisement – Directive 89/665/EEC – Review procedures relating to public procurement – Time-limits for review))

In Case C-470/99, REFERENCE to the Court under Article 234 EC by the Vergabekontrollsenat des Landes Wien (Austria) for a preliminary ruling in the proceedings pending before that court between Universale-Bau AG, Bietergemeinschaft: 1. Hinteregger & Söhne Bauges.mbH Salzburg, 2. ÖSTU-STETTIN Hoch- und Tiefbau GmbH,

and

Entsorgungsbetriebe Simmering GesmbH, on the interpretation of Article 1(a), (b) and (c) of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54), and 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: J.-P. Puissochet, President of the Chamber, R. Schintgen, C. Gulmann, V. Skouris (Rapporteur), and F. Macken, Judges, Advocate General: S. Alber,
Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

─

Universale-Bau AG, by M. Neidhart, Direktor der Rechtsabteilung, and J. Mauch, Vorstandsdirektor Ingenieur,

─

the Bietergemeinschaft 1. Hinteregger & Söhne Bauges.mbH Salzburg, 2. ÖSTU-STETTIN Hoch- und Tiefbau GmbH, by J. Olischar and M. Kratky, Rechtsanwälte,

─

Entsorgungsbetriebe Simmering GesmbH, by T. Wenger, Rechtsanwalt,

─

the Austrian Government, by H. Dossi, acting as Agent,

─

the Netherlands Government, by M. Fierstra, acting as Agent,

─

the Commission of the European Communities, by M. Nolin, acting as Agent, and by R. Roniger, Rechtsanwalt,

having regard to the Report for the Hearing,

after hearing the oral observations of Entsorgungsbetriebe Simmering GmbH, represented by C. Casati, Rechtsanwalt, of the Austrian Government, represented by M. Fruhmann, acting as Agent, and of the Commission, represented by H. van Lier, acting as Agent, assisted by R. Roniger, at the hearing on 12 September 2001,

after hearing the Opinion of the Advocate General at the sitting on 8 November 2001,

gives the following

Judgment

1

By order of 12 November 1999, received at the Court on 7 December 1999, the Vergabekontrollsenat des Landes Wien (Public Procurement Review Chamber of the Land of Vienna) referred to the Court for a preliminary ruling under Article 234 EC four questions on the interpretation of Article 1(a), (b) and (c) of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54), and 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, hereinafter Directive 89/665).

2

Those questions were raised in the course of proceedings between Universale-Bau AG (hereinafter Universale), and the consortium of undertakings ( Bietergemeinschaft) formed by Hinteregger & Söhne Bauges.mbH and ÖSTU-STETTIN Hoch- und Tiefbau GmbH (hereinafter the consortium), and Entsorgungsbetriebe Simmering GesmbH (hereinafter EBS), concerning a procedure for the award of a public works contract.

Relevant provisions

Community legislation

3

It is apparent from the first and second recitals in the preamble to Directive 89/665 that the mechanisms, which existed at the date of its adoption at both national and Community levels, for ensuring the effective application of Community directives in relation to public procurement, were not always adequate to ensure compliance with the relevant Community provisions, particularly at a stage when infringements could still be corrected.

4

In the terms of the third recital in the preamble to that directive, the opening-up of public procurement to Community competition necessitates a substantial increase in the guarantees of transparency and non-discrimination and ... for it to have tangible...