Opinion of the Advocate General — ECLI:EU:C:1997:245
Date: 1997-05-15
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Provisions governing the Institutions;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 
1. Preliminary rulings — Reference to the Court — National court or tribunal within the mean­
ing of Article 177 of the Treaty — Definition — Body competent to hear appeals concerning 
the award of public contracts 
(EC Treaty, Art. 177) 
2. Approximation of Uws — Procedures for the award of public service contracts — Directive 
92/50 — Provision requiring Member States to set up appeal bodies — Non-transposition — 
Consequences — Power of appeal bodies having competence in reUtion to procedures for the 
award of public works contracts and public supply contracts to hear appeals reUting to pro­
cedures for the award of public service contracts as well — Not a necessary consequence — 
Obligation for the national courts to determine whether the national law in force provides a 
possibility of appeal 
(Council Directive 92/50, Art. 41) 
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SUMMARY — CASE C-54/96 
1. In order to determine whether a body 
making a reference to the Court of Justice 
is a court or tribunal for the purposes of 
Article 177 of the Treaty, which is a ques­
tion governed by Community law alone, 
a number of factors must be taken into 
account, such as whether the body is 
established by law, whether it is perma­
nent, whether its jurisdiction is compul­
sory, whether its procedure is inter partes, 
whether it applies rules of law and 
whether it is independent. The German 
Federal Public Procurement Awards 
Supervisory Board, which is established 
by law as the only body competent to 
determine, upon application of rules of 
law and after hearing the parties, whether 
lower review bodies have committed an 
infringement of the provisions applicable 
to procedures for the award of public 
contracts, whose decisions are binding 
and which carries out its task indepen­
dently and under its own responsibility, 
satisfies those criteria. 
2. It does not follow from Article 41 of 
Directive 92/50, relating to the coordina­
tion of procedures for the award of pub­
lic service contracts, which requires 
Member States to ensure that decisions 
taken by contract-awarding authorities 
can be reviewed effectively, that, where 
the directive has not been transposed by 
the end of the period laid down for that 
purpose, the appeal bodies of the Member 
States having competence in relation to 
procedures for the award of public works 
contracts and public supply contracts 
may also hear appeals relating to proce­
dures for the award of public service con­
tracts. However, in order to observe the 
requirement that domestic law must be 
interpreted in conformity with the direc­
tive and the requirement that the rights of 
individuals must be protected effectively, 
the national court must determine 
whether the relevant provisions of its 
domestic law allow recognition of a right 
for individuals to bring an appeal in rela­
tion to awards of public service contracts. 
In this regard, the national court may be 
required in particular to determine 
whether such a right of appeal may be 
exercised before the same bodies as those 
established to hear appeals concerning the 
award of public supply contracts and 
public works contracts. 
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