Opinion of the Advocate General — ECLI:EU:C:2003:559
Date: 2003-10-16
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. Approximation of laws — Review procedures concerning the award of public supply 
and public works contracts — Directive 89/665 — Member States under an obli-
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SUMMARY — CASE C-230/02 
gation to provide for review procedures — Access to review procedures — Failure by 
an undertaking to participate in the contracts award procedure because of allegedly 
discriminatory specifications — Failure to seek a review of those specifications — 
Excluded from access to review procedures — Whether permissible 
(Council Directive 89/665, Arts 1(3) and 2(1)(b)) 
2. Approximation of laws — Review procedures concerning the award of public supply 
and public works contracts — Directive 89/665 — Member States under an obli­
gation to provide for review procedures — Access to review procedures — Interest in 
obtaining the contract lost because no application to a conciliation commission was 
made first — Not permissible 
(Council Directive 89/665, Art. 1 (3)) 
1. Articles 1(3) and 2(1)(b) of Directive 
89/665 on the coordination of the laws, 
regulations and administrative provi­
sions relating to the application of 
review procedures to the award of 
publ ic supply and publ ic works 
contracts, as amended by Directive 
92/50 relating to the coordination of 
procedures for the award of public 
service contracts, must be interpreted 
as not precluding a person from being 
regarded, once a public contract has 
been awarded, as having lost his right 
of access to the review procedures 
provided for by the directive if he did 
not participate in the award procedure 
for that contract on the ground that he 
was not in a position to supply all the 
services for which bids were invited, 
because there were allegedly discrimi­
natory specifications in the documents 
relating to the invitation to tender, but 
he did not seek review of those specifi­
ca t ions before the con t r ac t was 
awarded. 
As regards the failure to participate in 
the contracts award procedure, it 
would indeed be too much to require 
an undertaking allegedly harmed by 
discriminatory clauses in the docu­
ments relating to the invitation to 
tender to submit a tender, before being 
able to avail itself of the review pro­
cedures provided for by Directive 
89/665 against such specifications, in 
the award procedure for the contract at 
issue, even though its chances of being 
awarded the contract are non-existent 
by reason of the existence of those 
specifications. It would, therefore, in 
those circumstances, be entitled to seek 
review of those specifications directly, 
even before the procedure for awarding 
the contract concerned is terminated. 
However, the fact that a person does 
not seek such a review but awaits 
notification of the decision awarding 
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GROSSMANN AIR SERVICE 
the contract and then challenges it 
before the body responsible, on the 
ground specifically that those specifi­
cations are discriminatory, is not in 
keeping with the objectives of speed 
and effectiveness of Directive 89/665. 
The refusal, in those circumstances, to 
acknowledge the interest in obtaining 
the contract in question and, therefore, 
the right of access to the review pro­
cedures provided for by Directive 
89/665 does not impair the effective­
ness of that directive. 
(see paras 28-29, 37, 39-40, 
operative part 1) 
2. Even though Article 1(3) of Directive 
89/665 on the coordination of the laws, 
regulations and administrative provi­
sions relating to the application of 
review procedures to the award of 
publ ic supply and publ ic works 
contracts, as amended by Directive 
92/50 relating to the coordination of 
procedures for the award of public 
contracts, expressly allows Member 
States to determine the detailed rules 
according to which they must make the 
review procedures provided for in that 
directive available to any person hav­
ing or having had an interest in obtain­
ing a particular public contract and 
who has been or risks being harmed by 
an alleged infringement, it none the less 
does not authorise them to give the 
term 'interest in obtaining a public 
contract' an interpretation which may 
limit the effectiveness of that directive. 
The fact that access to the review 
procedures provided for by the direc­
tive is made subject to prior referral to 
a conciliation committee would be 
contrary to the objectives of speed 
and effectiveness of that directive. 
Accordingly, that provision must be 
interpreted as precluding a person who 
has participated in a contract award 
procedure from being regarded as hav­
ing lost his interest in obtaining the 
contract on the ground that, before 
seeking the review provided for by the 
directive, he failed to refer the case to a 
conciliation committee. 
(see paras 42-43, operative part 2) 
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