Opinion of the Advocate General — ECLI:EU:C:2005:171
Date: 2005-03-15
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment Approximation of laws — Review procedures concerning the award of public supply and public works contracts — Directive 89/665 — Obligation of the Member States to provide for a review procedure — Availability of review procedures — National legislation prohibiting members of a tendering consortium which has no legal personality from bringing an action individually — Whether permissible (Council Directive 89/665, Art. 1) Article 1 of Council 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 Council Directive 92/50 relating to the coordination of procedures for the award of public service contracts, is to be interpreted as not precluding national law from providing that only the members of a consortium without legal personality which has participated, as such, in a procedure for the award of a public contract and has not been awarded that contract, acting together, may bring an action against the decision awarding the contract and not just one of its members individually. The same is true if all the members of such a consortium act together but the application of one of its members is held inadmissible. In both cases, the national rules require only that applicants comply with the conditions relating to representation in legal proceedings in accordance with the legal form which the members have themselves chosen. Such requirements are general in application and do not limit the efficacy and availability of review procedures to tenderers in a manner contrary to Directive 89/665. (see paras 28-29, operative part)