Opinion of the Advocate General — ECLI:EU:C:2002:573
Date: 2002-10-10
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Austria

SUMMARY — CASE C-315/01 
Summary of the Judgment 
1. Approximation of laws — Review procedures in respect of the award of public supply 
and public works contracts — Directive 89/665 — Power of the body responsible for 
review procedures to consider of its own motion any unlawfulness of a decision 
awarding a contract — Whether permissible — Power to dismiss an application by 
reason of the unlawfulness raised of its own motion — Excluded 
(Council Directive 89/665) 
2. Approximation of laws — Procedures for the award of public supply contracts — 
Directive 93/36 — Award of contracts — Award criteria — Account taken of a list 
of principal deliveries effected previously — Not permissible 
(Council Directive 93/36, Arts 23(1) and 26(1» 
3. Approximation of laws — Procedures for the award of public supply contracts — 
Directive 93/36 — Award of contracts — Award criteria — Requirement that the 
product which is the subject of the tenders should be available for inspection by the 
contracting authority within a radius of a specific number of kilometres — Not 
permissible 
(Council Directive 93/36, Arts 23(1) and 26(1)) 
1. Directive 89/665 on the coordination 
of the laws, regulations and adminis­
trative provisions relating to the appli­
cation of review procedures to the 
award of public supply and public 
works contracts, as amended by Direc­
tive 92/50 relating to the coordination 
of procedures for the award of public 
service contracts, does not preclude the 
court responsible for hearing review 
procedures, in an action brought by a 
tenderer, with the ultimate aim of 
obtaining damages, for a declaration 
that the decision to award a public 
contract is unlawful, from raising of its 
own motion the unlawfulness of a 
decision of the contracting authority 
other than the one contested by the 
tenderer. On the other hand, the direc­
tive does preclude the court from dis­
missing an application by a tenderer on 
the ground that, owing to the unlawful­
ness raised of its own motion, the 
award procedure was in any event 
unlawful and that the harm which the 
tenderer may have suffered would 
therefore have been caused even in 
the absence of the unlawfulness alleged 
by the tenderer. 
(see para. 56, operative part 1) 
2. Directive 93/36 coordinating pro­
cedures for the award of public supply 
contracts precludes the contracting 
authority, in a procedure to award a 
public supply contract, from taking 
account of the number of references 
relating to the products offered by the 
tenderers to other customers not as a 
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criterion for establishing their suitabil­
ity for carrying out the contract but as 
a criterion for awarding the contract. 
The submission of a list of the principal 
deliveries effected in the past three 
years, stating the sums, dates and 
recipients, public or private, involved 
is expressly included among the refer­
ences or evidence which, under 
Article 23(1)(a) of that directive, may 
be required to establish the suppliers' 
technical capacity. Furthermore, a 
simple list of references, which con­
tains only the names and number of the 
suppliers' previous customers without 
other details relating to the deliveries 
effected to those customers, cannot 
provide any information to identify 
the offer which is the most economi­
cally advantageous within the meaning 
of Article 26(1)(b) of Directive 93/36, 
and therefore cannot in any event 
constitute an award criterion within 
the meaning of that provision. 
(see paras 65-67, operative part 2) 
3. Directive 93/36 coordinating pro­
cedures for the award of public supply 
contracts precludes, in a procedure to 
award a public supply contract, the 
requirement that the products which 
are the subject of the tenders be avail­
able for inspection by the contracting 
authority within a radius of a specific 
number of kilometres of the authority 
as a criterion for the award of the 
contract. 
F i rs t ly , it is a p p a r e n t from 
Article 23(1)(d) of that directive that 
for public supply contracts the con­
tracting authorities may require the 
submission of samples, descriptions 
and/or photographs of the products to 
be supplied as references or evidence of 
the suppliers' technical capacity to 
carry out the contract concerned. Sec­
ondly, such a criterion cannot serve to 
identify the most economically advan­
tageous offer within the meaning of 
Article 26(1)(b) of that directive and 
therefore cannot, in any event, con­
stitute an award criterion within the 
meaning of that provision. 
(see paras 71-72, 74, operative part 3) 
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