Opinion of the Advocate General — ECLI:EU:C:2002:90
Date: 2002-02-07
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Human rights;Approximation of laws;Fundamental rights
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment 
Approximation of laws — Review procedures relating to the award of public supply and 
public works contracts — Directive 89/665 — Application by a tenderer for review of a 
contracting authority's decision excluding it from a tendering procedure — Plea alleging 
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SUMMARY — CASE C-327/00 
incompatibility with Community law of a notice of invitation to tender — Admissible 
notwithstanding the expiry of the period prescribed for bringing proceedings for review of 
that notice — Condition — Conduct of the contracting authority aimed at depriving the 
tenderer of the rights conferred by the Community legal order 
(Council Directive 89/665) 
Directive 89/665 on the coordination of the 
laws, regulations and administrative provi­
sions 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, must be interpreted as 
imposing on the competent national courts, 
where it is established that, by its conduct, 
a contracting authority has rendered 
impossible or excessively difficult the exer­
cise of the rights conferred by the Commu­
nity legal order on a national of the Union 
who has been harmed by a decision of that 
contracting authority to exclude him from 
a tendering procedure, an obligation to 
allow as admissible pleas in law alleging 
that the notice of invitation to tender is 
incompatible with Community law, which 
are put forward in support of an appli­
cation for review of that decision, by 
availing itself, where appropriate, of the 
possibility afforded by national law of 
disapplying national rules on limitation 
periods, under which, when the period 
prescribed for bringing proceedings for 
review of the notice of invitation to tender 
has expired, it is no longer possible to plead 
such incompatibility. 
(see para. 66, operative part) 
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