Opinion of the Advocate General — ECLI:EU:C:2004:553
Date: 2004-09-23
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Approximation of laws – Review procedures relating to the award of public supply and public works contracts – Directive 89/665 – Obligation of the Member States to provide for review procedures – Reviewable decisions – Meaning – Decisions taken outside a formal award procedure and prior to a formal call for tenders – Included – Access to review procedures – Conditions – Requirement for procedure to have reached a particular stage – Not permissible (Council Directives 89/665, Art. 1(1), and 92/50) 2. Approximation of laws – Award procedures for public service contracts – Directive 92/50 – Scope – Contracting authority having a holding in the capital of a company legally distinct from it together with one or more private undertakings – Contract concluded by the contracting authority with that company – Included (Council Directive 92/50) 1. Article 1(1) 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 contracts, as amended by Directive 92/50 relating to the coordination of procedures for the award of public service contracts, itself amended by Directive 97/52, must be interpreted as meaning that the obligation of the Member States to ensure that effective and rapid remedies are available against decisions taken by contracting authorities extends also to decisions taken outside a formal award procedure and decisions prior to a formal call for tenders, in particular the decision on whether a particular contract falls within the personal and material scope of Directive 92/50, as amended. That possibility of review is available to any person having or having had an interest in obtaining the contract in question who has been or risks being harmed by an alleged infringement, from the time when the contracting authority has expressed its will in a manner capable of producing legal effects. The Member States are not therefore authorised to make the possibility of review subject to the fact that the public procurement procedure in question has formally reached a particular stage. (see para. 41, operative part 1) 2. Where a contracting authority intends to conclude a contract for pecuniary interest relating to services within the material scope of Directive 92/50 relating to the coordination of procedures for the award of public service contracts, as amended by Directive 97/52, with a company legally distinct from it, in whose capital it has a holding together with one or more private undertakings, the public award procedures laid down by that directive must always be applied, even if the holding is a majority one. (see para. 52, operative part 2)