Opinion of the Advocate General — ECLI:EU:C:1999:295
Date: 1999-06-10
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. Approximation of laws — Review procedures relating to the award of public supply 
and public works contracts — Directive 89/665 — Decision awarding contracts — 
Member States under an obligation to provide full legal protection for tenderers 
(Council Directive 89/665, Art. 2(1)(a) and (b) and Art. 2(6), second subpara.) 
I - 7671 
SUMMARY — CASE C-81/98 
2. Approximation of laws — Review procedures relating to the award of public supply 
and public works contracts — Directive 89/665 — Member States under an obligation 
to provide for review procedures in respect of decisions awarding contracts — Where 
national legislation does not enable the protection provided for by the Directive to be 
ensured — Obligation to remedy damage to individuals where it is not possible to 
interpret national law consistently with the Directive 
(Council Directive 89/665, Art. 2(1)(a) and (b)) 
1. The combined provisions of Arti­
cle 2(l)(a) and (b) and the second 
subparagraph of Article 2(6) of Direc­
tive 89/665 on the coordination of the 
laws, regulations and administrative 
provisions relating to the application 
of review procedures to the award of 
public supply and public works con­
tracts must be interpreted as meaning 
that the Member States are required to 
ensure that the contracting authority's 
decision prior to the conclusion of the 
contract as to the bidder in a tender 
procedure with which it will conclude 
the contract is in all cases open to 
review under a procedure whereby 
unsuccessful tenderers may have that 
decision set aside if the relevant condi­
tions are met, notwithstanding the 
possibility, once the contract has been 
concluded, of obtaining an award of 
damages. 
2. Article 2(1 )(a) and (b) of Directive 
89/665 on the coordination of the 
laws, regulations and administrative 
provisions relating to the application 
of review procedures to the award of 
public supply and public works con­
tracts cannot be interpreted to the 
effect that, even where there is no 
award decision which may be the 
subject of an application to have it set 
aside, the bodies in the Member States 
having power to review public procure­
ment procedures may hear applications 
under the conditions laid down in that 
provision. 
In such circumstances, if provisions of 
national law cannot be interpreted in a 
manner consistent with Directive 
89/665, those concerned may seek 
compensation, in accordance with the 
appropriate procedures under national 
law, for the damage suffered by reason 
of the failure to transpose the Directive 
within the prescribed period. 
I - 7672