Opinion of the Advocate General — ECLI:EU:C:1998:162
Date: 1998-04-02
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 Judgmen t 
Approximation of Laws — Public procurement procedures in the water, energy, transport and tele­
communications sectors — Directive 92/13 — Provision requiring Member States to establish 
review bodies — Non-transposition — Consequences — Power for the review bodies having com­
petence 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) 
I -5411 
SUMMARY — CASE C-111/97 
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 appli­
cation of Community rules on the procure­
ment procedures of entities operating in the 
water, energy, transport and telecommunica­
tions sectors cannot be interpreted as meaning 
that, where the directive has not been trans­
posed by the end of the period prescribed for 
that purpose, the review bodies of the Member 
States having competence in relation to pro­
cedures for the award of public works con­
tracts and public supply contracts may also 
hear applications for review relating to pro­
cedures for the award of public contracts in 
the water, energy, transport and telecommu­
nications sectors. However, in order to observe 
the requirement that domestic law be inter­
preted in conformity with Directive 92//13 
and the requirement that the rights of indi­
viduals be protected effectively, the national 
court must determine whether the relevant 
provisions of its domestic law allow recogni­
tion 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 exer­
cised before the same bodies as those estab­
lished to hear applications for review con­
cerning the award of public supply contracts 
and public works contracts. 
If the provisions of domestic law are inca­
pable of being interpreted in conformity with 
Directive 92/13, the persons concerned may, 
in accordance with the appropriate proce­
dures under domestic law, claim compensa­
tion for damage suffered as a result of the 
failure to transpose the directive within the 
prescribed time-limit. 
I - 5412