Opinion of the Advocate General — ECLI:EU:C:2003:230
Date: 2003-04-10
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: Austria

Summary of the Judgment 
1. Preliminary rulings — Jurisdiction of the Court — Extraction of the relevant points 
of Community law — Jurisdiction of the national courts — Establishment and 
evaluation of the facts — Application of provisions interpreted by the Court 
(Art. 234 EC) 
I - 11941 
SUMMARY — CASE C-421/01 
2. Approximation of laws — Procedures for the award of public works contracts — 
Directive 93/37 — Award of contracts — Variants submitted by tenderers — 
Obligation to set out in the contract documents the minimum specifications to be 
complied with — Scope — Reference to a provision of national legislation — Not 
permissible 
(Council Directive 93/37, Art. 19) 
3. Approximation of laws — Procedures for the award of public works contracts — 
Directive 93/37 — Award of contracts — Application of the criteria for the award of 
contracts only to variants properly taken into consideration by the contracting 
authority 
(Council Directive 93/37, Arts 19 and 30) 
1. Under Article 234 EC, which is based 
on a clear separation of functions 
between national courts and tribunals 
and the Court of Justice, the latter is 
empowered to rule on the interpre­
tation or validity of Community provi­
sions only on the basis of the facts 
which the national court or tribunal 
puts before it. However, it is for the 
national court or tribunal to apply the 
rules of Community law to a specific 
case. No such application is possible 
without a comprehensive appraisal of 
the facts of the case. The Court there­
fore has no jurisdiction to give a ruling 
on the facts in the main proceedings or 
to apply the rules of Community law 
which it has interpreted to national 
measures or situations, since those 
questions are matters for the exclusive 
jurisdiction of the national court or 
tribunal. 
(see para. 21) 
2. Article 19 of Directive 93/37 concern­
ing the coordination of procedures for 
the award of public works contracts is 
to be interpreted as meaning that the 
obligation to set out the minimum 
specifications required by a contracting 
authority in order to take variants into 
consideration is not satisfied where the 
contract documents merely refer to a 
provision of national legislation requir­
ing an alternative tender to ensure the 
performance of work which is quali­
tatively equivalent to that for which 
tenders are invited. 
Tenderers may be deemed to be 
informed in the same way of the 
minimum specifications with which 
their variants must comply in order to 
be considered by the contracting auth­
ority only where those specifications 
are set out in the contract documents. 
This involves an obligation of trans­
parency designed to ensure compliance 
I - 11942 
TRAUNFELLNER 
with the principle of equal treatment of 
tenderers, which must be complied 
with in any procurement procedure 
governed by the Directive. 
(see paras 29-30, operative part 1) 
3. Article 30 of Directive 93/37 concern­
ing the coordination of procedures for 
the award of public works contracts, 
which lays down the permissible crite­
ria for the award of contracts, can 
apply only to variants which have been 
properly taken into consideration by 
the contracting authority in accordance 
with Article 19 of that directive. Vari­
ants may not, in that regard, be 
properly taken into consideration, even 
if they have not been declared inad­
missible in the tender notice as pro­
vided for in the second paragraph of 
Article 19, where the contracting auth­
ority has failed to comply with the 
requirements laid down in that provi­
sion with respect to the statement of 
the minimum specifications with which 
those variants must comply. 
(see paras 31-34, operative part 2) 
I - 11943