Dorsch Consult Ingenieurgesellschaft mbH contra Bundesbaugesellschaft Berlin mbH.

• Jurisdiction: European Union
• Celex Number: 61996CJ0054
• ECLI: ECLI:EU:C:1997:413
• Docket Number: C-54/96
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 17 September 1997

Avis juridique important

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61996J0054

Judgment of the Court of 17 September 1997. - Dorsch Consult Ingenieurgesellschaft mbH v Bundesbaugesellschaft Berlin mbH. - Reference for a preliminary ruling: Vergabeüberwachungsausschuß des Bundes - Germany. - Meaning of 'national court or tribunal' for the purposes of Article 177 of the Treaty - Procedures for the award of public service contracts - Directive 92/50/EEC - National review body. - Case C-54/96.

European Court reports 1997 Page I-04961

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

1 Preliminary rulings - Reference to the Court - National court or tribunal within the meaning of Article 177 of the Treaty - Definition - Body competent to hear appeals concerning the award of public contracts

(EC Treaty, Art. 177)

2 Approximation of laws - Procedures for the award of public service contracts - Directive 92/50 - Provision requiring Member States to set up appeal bodies - Non-transposition - Consequences - Power of appeal bodies having competence in relation to procedures for the award of public works contracts and public supply contracts to hear appeals relating to procedures for the award of public service contracts as well - Not a necessary consequence - Obligation for the national courts to determine whether the national law in force provides a possibility of appeal

(Council Directive 92/50, Art. 41)

Summary

3 In order to determine whether a body making a reference to the Court of Justice is a court or tribunal for the purposes of Article 177 of the Treaty, which is a question governed by Community law alone, a number of factors must be taken into account, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent. The German Federal Public Procurement Awards Supervisory Board, which is established by law as the only body competent to determine, upon application of rules of law and after hearing the parties, whether lower review bodies have committed an infringement of the provisions applicable to procedures for the award of public contracts, whose decisions are binding and which carries out its task independently and under its own responsibility, satisfies those criteria.

4 It does not follow from Article 41 of Directive 92/50, relating to the coordination of procedures for the award of public service contracts, which requires Member States to ensure that decisions taken by contract-awarding authorities can be reviewed effectively, that, where the directive has not been transposed by the end of the period laid down for that purpose, the appeal bodies of the Member States having competence in relation to procedures for the award of public works contracts and public supply contracts may also hear appeals relating to procedures for the award of public service contracts. However, in order to observe the requirement that domestic law must be interpreted in conformity with the directive and the requirement that the rights of individuals must be protected effectively, the national court must determine whether the relevant provisions of its domestic law allow recognition of a right for individuals to bring an appeal in relation to awards of public service contracts. In this regard, the national court may be required in particular to determine whether such a right of appeal may be exercised before the same bodies as those established to hear appeals concerning the award of public supply contracts and public works contracts.

Parties

In Case C-54/96,

REFERENCE to the Court under Article 177 of the EC Treaty by the Vergabeüberwachungsausschuß des Bundes (Germany) for a preliminary ruling in the proceedings pending before that body between

Dorsch Consult Ingenieurgesellschaft mbH

and

Bundesbaugesellschaft Berlin mbH

on the interpretation of Article 41 of 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,

composed of: G.C. Rodríguez Iglesias, President, G.F. Mancini, J.C. Moitinho de Almeida, J.L. Murray and L. Sevón (Presidents of Chambers), C.N. Kakouris, P.J.G. Kapteyn, C. Gulmann, D.A.O. Edward, J.-P. Puissochet, G. Hirsch, P. Jann (Rapporteur), H. Ragnemalm, M. Wathelet and R. Schintgen, Judges,

Advocate General: G. Tesauro,

Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

- Dorsch Consult Ingenieurgesellschaft mbH, by Franz Günter Siebeck, Rechsanwalt, Munich,

- the German Government, by Ernst Röder, Ministerialrat at the Federal Ministry for Economic Affairs, and Bernd Kloke, Oberregierungsrat at the same ministry, acting as Agents,

- the Commission of the European Communities, by Hendrik van Lier, Legal Adviser, and Claudia Schmidt, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Dorsch Consult Ingenieurgesellschaft mbH, of the German Government and of the Commission at the hearing on 28 January 1997,

after hearing the Opinion of the Advocate General at the sitting on 15 May 1997,

gives the following

Judgment

Grounds

1 By order of 5 February 1996, received at the Court on 21 February 1996, the Vergabeüberwachungsausschuß des Bundes (Federal Public Procurement Awards Supervisory Board, hereinafter `the Federal Supervisory Board') referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a question on the interpretation of Article 41 of 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).

2 The question has been raised in proceedings between Dorsch Consult Ingenieurgesellschaft mbH (hereinafter `Dorsch Consult') and Bundesbaugesellschaft Berlin mbH (hereinafter `the awarding authority') concerning a procedure for the award of a service contract.

3 On 28 June 1995 the awarding authority published in the Official Journal of the European Communities a notice advertising the award of a contract for architectural and construction engineering services. On 25 August 1995 Dorsch Consult submitted its tender to the awarding authority. In all, 18 tenders were received, of which seven, including that of Dorsch Consult, were chosen for further consideration. On 30 November 1995, two companies, together with an architect, were chosen to form a working party to perform the services which were the subject of the contract. The contract itself was signed on 12 January 1996. Dorsch Consult was informed on 25 January 1996 that its tender was not the most advantageous economically.

4 Having learned that the awarding authority had not chosen it for the contract but before its tender was formally rejected, Dorsch Consult had applied, on 14 December 1995, to the Bundesministerium für Raumordnung, Bauwesen und Städtebau (Federal Ministry for Regional Planning, Building and Urban Planning), as the body responsible for reviewing public procurement awards (Vergabeprüfstelle), seeking to have the contract-awarding procedure stopped and the contract awarded to it. It considered that, in concluding the contract with another undertaking, the awarding authority had acted in breach of both Directive 92/50 and Paragraph 57a(1) of the Haushaltsgrundsätzegesetz (Budget Principles Law, hereinafter `the HGrG'). By decision of 20 December 1995, the review body held that it had no competence in the matter on the ground that, under Paragraphs 57a and 57b of the HGrG, it had no power to review the award of contracts when they related to services.

5 In those circumstances, on 27 December 1995 Dorsch Consult lodged an application for a...