EvoBus Austria GmbH v Niederösterreichische Verkehrsorganisations GmbH (Növog).

• Jurisdiction: European Union
• Celex Number: 61997CC0111
• ECLI: ECLI:EU:C:1998:162
• Date: 02 April 1998
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-111/97

Important legal notice

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61997C0111

Opinion of Mr Advocate General Fennelly delivered on 2 April 1998. - EvoBus Austria GmbH v Niederösterreichische Verkehrsorganisations GmbH (Növog). - Reference for a preliminary ruling: Bundesvergabeamt - Austria. - Public procurement in the water, energy, transport and telecommunications sectors - Effect of a directive which has not been transposed. - Case C-111/97.

European Court reports 1998 Page I-05411

Opinion of the Advocate-General

I - Introduction

1 This case relates to the award of a contract for the supply of buses for a regular inter-urban express bus service in Austria. It raises, in particular, questions regarding the bodies competent to review such contracts, the availability of remedies and the application of national time-limits for bringing proceedings where the relevant Community directive has not been implemented in time.

II - Legal and factual context

A - Community law

2 Article 1 of Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (1) (hereinafter referred to as `the Utilities Review Directive'), as amended, provides as follows:

`(1) The Member States shall take the measures necessary to ensure that decisions taken by contracting entities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in the following Articles and, in particular, Article 2(8), on the grounds that such decisions have infringed Community law in the field of (2) procurement or national rules implementing that law as regards:

(a) contract award procedures falling within the scope of Council Directive 93/38/EEC; (3) and

(b) compliance with Article 3(2)(a) of that Directive in the case of the contracting entities to which that provision applies.

(2) Member States shall ensure that there is no discrimination between undertakings likely to make a claim for injury in the context of a procedure for the award of a contract as a result of the distinction made by this Directive between national rules implementing Community law and other national rules.

(3) The Member States shall ensure that the review procedures are available, under detailed rules which the Member States may establish, at least to any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement. In particular, the Member States may require that the person seeking the review must have previously notified the contracting entity of the alleged infringement and of his intention to seek review.'

Article 2 of the Utilities Review Directive provides, in relevant part, as follows:

`(1) The Member States shall ensure that the measures taken concerning the review procedures specified in Article 1 include provision for the powers:

either

(a) to take, at the earliest opportunity and by way of interlocutory procedure, interim measures with the aim of correcting the alleged infringement of preventing further injury to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a contract or the implementation of any decision taken by the contracting entity; and

(b) to set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discriminatory technical, economic or financial specifications in the notice of contract, the periodic indicative notice, the notice on the existence of a system of qualification, the invitation to tender, the contract documents or in any other document relating to the contract award procedure in question;

or

(c) to take, at the earliest opportunity, if possible by way of interlocutory procedures and if necessary by a final procedure on the substance, measures other than those provided for in points (a) and (b) with the aim of correcting any identified infringement and preventing injury to the interests concerned; in particular, making an order for the payment of a particular sum, in cases where the infringement has not been corrected or prevented.

Member States may take this choice either for all contracting entities or for categories of entities defined on the basis of objective criteria, in any event preserving the effectiveness of the measures laid down in order to prevent injury being caused to the interests concerned;

(d) and, in both of the above cases, to award damages to persons injured by the infringement.

Where damages are claimed on the grounds that a decision has been taken unlawfully, Member States may, where their system of internal law so requires and provides bodies having the necessary powers for that purpose, provide that the contested decision must first be set aside or declared illegal.

(2) The powers referred to in paragraph 1 may be conferred on separate bodies responsible for different aspects of the review procedure.

...

(8) The Member States shall ensure that decisions taken by bodies responsible for review procedures can be effectively enforced.

(9) Where (4) bodies responsible for review procedures are not judicial in character, written reasons for their decisions shall always be given. Furthermore, in such a case, provision must be made to guarantee procedures whereby any allegedly illegal measure taken by the review body or any alleged defect in the exercise of the powers conferred on it can be the subject of judicial review or review by another body which is a court or tribunal within the meaning of Article 177 of the Treaty and independent of both the contracting entity and the review body.

The members of the independent body referred to in the first paragraph shall be appointed and leave office under the same conditions as members of the judiciary as regards the authority responsible for their appointment, their period of office, and their removal. At least the President of this independent body shall have the same legal and professional qualifications as members of the judiciary. The independent body shall take its decisions following a procedure in which both sides are heard, and these decisions shall, by means determined by each Member State, be legally binding.'

3 Article 2 of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (5) (hereinafter `the Utilities Directive') provides, in relevant part, as follows:

`(1) This Directive shall apply to contracting entities which:

(a) are public authorities or public undertakings and exercise one of the activities referred to in paragraph 2;

(b) when they are not public authorities or public undertakings, have as one of their activities any of those referred to in paragraph 2 or any combination thereof and operate on the basis of special or exclusive rights granted by a competent authority of a Member State.

(2) Relevant activities for the purposes of this Directive shall be:

...

(c) the operation of networks providing a service to the public in the field of transport by railway, automated systems, tramway, trolley bus, bus or cable.

As regards transport services, a network shall be considered to exist where the service is provided under operating conditions laid down by a competent authority of a Member State, such as conditions on the routes to be served, the capacity to be made available or the frequency of the service; ... .'

B - Implementation in national law

4 By virtue of Article 65 of and Annex XVI to the Agreement on the European Economic Area signed at Oporto on 2 May 1992, the Republic of Austria was...