Opinion of the Advocate General — ECLI:EU:C:1998:433
Date: 1998-09-24
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment
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 con­
cerning the award of public contracts
(EC Treaty, Art. 177)
I-551
SUMMARY — CASE C-103/97
2. Approximation of laws — Review procedures concerning the award of public supply and public
works contracts — Directive 89/665 — Bodies responsible for review procedures — Applica­
bility of the guarantee provisions of the second subparagraph of Article 2(8) of the directive —
Conditions — Bodies of a judicial character — Not applicable
(Council Directive 89/665, Art. 2(8), second subpara.)
1. In order to determine whether a body
making a reference for a preliminary ruling
is a court or tribunal within the meaning
of Article 177 of the Treaty, which is a
question governed by Community law
alone, account must be taken of a number
of factors, such as whether the body is
established by law, whether it is perma­
nent, whether its jurisdiction is compul­
sory, whether its procedure is inter partes,
whether it applies rules of law and whether
it is independent. Those criteria are satis­
fied by the Tiroler Landesvergabeamt
(Public Procurement Office of the Land
of Tyrol), established by the Law of the
Land of Tyrol on the Award of Contracts
to review procedures for the award of
public contracts.
It is apparent from the provisions on its
composition and functioning that that body
complies with the first five criteria, and
that the independence of its members is
guaranteed by the application of the Gen­
eral Law on Administrative Procedure,
which contains very specific provisions on
the circumstances in which members of
the body in question must withdraw, failure
to comply with that obligation consti­
tuting a procedural defect which may be
challenged by the parties concerned. In
addition, under the Land law, the giving
of instructions to members of the Tiroler
Landesvergabeamt in the performance of
their duties is prohibited.
2. The conditions set out in Article 2(8) of
Council Directive 89/665 on the coordi­
nation of the laws, regulations and admin­
istrative provisions relating to the applica­
tion of review procedures to the award of
public supply and public works contracts
do not apply to provisions such as those
governing the composition and functioning
of the Tiroler Landesvergabeamt, since the
guarantee provisions in that article do not
apply to a body responsible for review
procedures which is of a judicial character.
It is only if Member States have chosen to
give jurisdiction over such reviews to
bodies which are not of a judicial char­
acter that their decisions must be capable
of being the subject of judicial review or
of review by another body which must
satisfy the particular requirements of
Article 2(8) of the directive, so as to guar­
antee an adequate review.
I-552