# C_2008183EN.01000901.xml

| 19.7.2008 | EN | Official Journal of the European Union | C 183/9 |
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19.7.2008

EN

Official Journal of the European Union

C 183/9

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Reference for a preliminary ruling from the Fővárosi Ítélőtábla (Hungary) lodged on 7 April 2008 — Hochtief AG, Linde-Kca-Dresden GmbH v Közbeszerzések Tanácsa Közbeszerzési Döntőbizottság

(Case C-138/08)

(2008/C 183/16)

Language of the case: Hungarian

Referring court

Fővárosi Ítélőtábla (Hungary)

Parties to the main proceedings

Applicant: Hochtief AG, Linde-Kca-Dresden GmbH

Applicant:

Defendant: Közbeszerzések Tanácsa Közbeszerzési Döntőbizottság

Defendant:

Intervener: Budapest Főváros Önkormányzata

Intervener:

Questions referred

| 1. | Is the procedure laid down in Article 44(3) of Directive 2004/18/EC, which replaced Article 22 of Council Directive 93/37/EEC (1) concerning the coordination of procedures for the award of public works contracts, applicable where the procurement procedure was initiated at a time when Directive 2004/18/EC (2) had already entered into force, but the time-limit granted to Member States for implementing that directive had not yet expired, so that the directive had not been incorporated into national law? |
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1.

Is the procedure laid down in Article 44(3) of Directive 2004/18/EC, which replaced Article 22 of Council Directive 93/37/EEC (1) concerning the coordination of procedures for the award of public works contracts, applicable where the procurement procedure was initiated at a time when Directive 2004/18/EC (2) had already entered into force, but the time-limit granted to Member States for implementing that directive had not yet expired, so that the directive had not been incorporated into national law?

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| 2. | If the answer to the first question is in the affirmative, this court further asks whether, in the case of negotiated procedures with publication of a contract notice, — having regard to the fact that Article 44(3) of Directive 2004/18/EC provides that ‘[i]n any event the number of candidates invited shall be sufficient to ensure genuine competition’ — the limitation of the number of suitable candidates should be interpreted as meaning that in the second stage — that of awarding the contract — there must invariably be a minimum number of candidates (three)? |
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2.

If the answer to the first question is in the affirmative, this court further asks whether, in the case of negotiated procedures with publication of a contract notice, — having regard to the fact that Article 44(3) of Directive 2004/18/EC provides that ‘[i]n any event the number of candidates invited shall be sufficient to ensure genuine competition’ — the limitation of the number of suitable candidates should be interpreted as meaning that in the second stage — that of awarding the contract — there must invariably be a minimum number of candidates (three)?

| 3. | If the answer to the first question is in the negative, this court further asks the Court of Justice whether the requirement that ‘there be a sufficient number of suitable candidates’, under Article 22(3) of Council Directive 93/37/EEC concerning the coordination of procedures for the award of public works contracts (‘Directive 93/37’), should be interpreted as meaning that where the minimum number of suitable candidates invited to take part is not reached (three), the procedure cannot continue to the stage of invitation to tender? |
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3.

If the answer to the first question is in the negative, this court further asks the Court of Justice whether the requirement that ‘there be a sufficient number of suitable candidates’, under Article 22(3) of Council Directive 93/37/EEC concerning the coordination of procedures for the award of public works contracts (‘Directive 93/37’), should be interpreted as meaning that where the minimum number of suitable candidates invited to take part is not reached (three), the procedure cannot continue to the stage of invitation to tender?

| 4. | If the Court of Justice replies to the third question in the negative, this court further asks whether the second paragraph of Article 22(2) of Directive 93/37 — in the rules on restricted procedures, according to which ‘[i]n any event, the number of candidates invited to tender shall be sufficient to ensure genuine competition’ — is applicable to two-stage negotiated procedures, governed by Article 22(3)? |
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4.

If the Court of Justice replies to the third question in the negative, this court further asks whether the second paragraph of Article 22(2) of Directive 93/37 — in the rules on restricted procedures, according to which ‘[i]n any event, the number of candidates invited to tender shall be sufficient to ensure genuine competition’ — is applicable to two-stage negotiated procedures, governed by Article 22(3)?

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(1)  OJ 1993 L 199, p. 54.

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(2)  OJ 2004 L 134, p. 114.

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