EvoBus Austria GmbH contra Niederösterreichische Verkehrsorganisations GmbH (Növog).

• Jurisdiction: European Union
• Celex Number: 61997CJ0111
• ECLI: ECLI:EU:C:1998:434
• Docket Number: C-111/97
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 24 September 1998

Avis juridique important

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61997J0111

Judgment of the Court (Sixth Chamber) of 24 September 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

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

Approximation of laws - Public procurement procedures in the water, energy, transport and telecommunications sectors - Directive 92/13 - Provision requiring Member States to establish review bodies - Non-transposition - Consequences - Power for the review bodies having competence in relation to public works contracts and public supply contracts also to hear applications for review in the water, energy, transport and telecommunications sectors - Not a necessary consequence - Obligation on the part of national courts to determine whether it is possible to bring review proceedings under domestic law

(Council Directive 92/13)

Summary

Article 1(1) to (3), Article 2(1), and (7) to (9) and the other provisions of Council Directive 92/13 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 cannot be interpreted as meaning that, where the directive has not been transposed by the end of the period prescribed for that purpose, the review 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 applications for review relating to procedures for the award of public contracts in the water, energy, transport and telecommunications sectors. However, in order to observe the requirement that domestic law be interpreted in conformity with Directive 92//13 and the requirement that the rights of individuals 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 review proceedings in relation to awards of public contracts in the water, energy, transport and telecommunications sectors. The national court must, in particular, verify whether that right to bring review proceedings can be exercised before the same bodies as those established to hear applications for review concerning the award of public supply contracts and public works contracts.

If the provisions of domestic law are incapable of being interpreted in conformity with Directive 92/13, the persons concerned may, in accordance with the appropriate procedures under domestic law, claim compensation for damage suffered as a result of the failure to transpose the directive within the prescribed time-limit.

Parties

In Case C-111/97,

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

EvoBus Austria GmbH

and

Niederösterreichische Verkehrsorganisations GmbH (Növog)

"on the interpretation 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 (OJ 1992 L 76, p. 14),

THE COURT

(Sixth Chamber),

composed of: H. Ragnemalm, President of the Chamber, G.F. Mancini, P.J.G. Kapteyn (Rapporteur), J.L. Murray and K.M. Ioannou, Judges,

Advocate General: N. Fennelly,

Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

- the Austrian Government, by Wolf Okresek, Ministerialrat in the Constitutional Affairs Service of the Federal Chancellor's Office, acting as Agent,

- 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 the Niederösterreichische Verkehrsorganisations GmbH (Növog), represented by Claus Casati, trainee lawyer, Vienna, the Austrian Government, represented by Michael Fruhmann, of the Federal Ministry of Foreign Affairs, acting as Agent, and the Commission, represented by Hendrik van Lier and Claudia Schmidt, at the hearing on 12 February 1998,

after hearing the Opinion of the Advocate General at the sitting on 2 April 1998,

gives the following

Judgment

Grounds

1 By order of 25 November 1996, received at the Court on 17 March 1997, the Bundesvergabeamt (Federal Procurement Office) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty three questions on the interpretation 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 (OJ 1992 L 76, p. 14).

2 Those questions were raised in proceedings between EvoBus Austria GmbH (hereinafter `EvoBus') and the Niederösterreichische Verkehrsorganisations GmbH (hereinafter `Növog') relating to the award of a public supply contract in respect of buses.

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