Opinion of the Advocate General — ECLI:EU:C:1998:457
Date: 1998-10-01
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. Approximation of laws — Review procedures in relation to the award of public supply and 
public works contracts — Directive 89/665 — Bodies with jurisdiction to review procedures 
— Applicability of the conditions laid down in Article 2(8), second subparagraph, of Directive 
89/665 — Conditions — 'Courts or tribunals' — Not applicable 
(Council Directive 89/665, Art. 2(8), second subpara.) 
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SUMMARY — CASE C-258/97 
2. Approximation of laws — Procedures for the award of public service contracts — Directive 
92/50 — Provision requiring Member States to establish bodies with jurisdiction to review 
procedures — Failure to transpose the Directive — Consequences — Whether possible for 
bodies with jurisdiction in rehtion to public supply and public works contracts also to hear 
appeals concerning public service contracts — Not axiomatic — National courts required to 
determine whether appeals are possible on the basis of the domestic hw in force 
(Council Directives 89/665, Art. 2(8), and 92/50, Art. 41) 
3. Approximation of laws — Procedure for the award of public service contracts — Directive 
92/50 — Scope — Engineering services, including planning, consultancy and studies relating 
to the running of a hospital — Covered — Falling within Category No 12 of Annex IA 
(Council Directive 92/50, Annex I A) 
4. Approximation of laws — Procedures for the award of public service contracts — Directive 
92/50 — Direct effect 
(Council Directive 92/50) 
1. The conditions laid down in Article 2(8) 
of Council Directive 89/665 on the coor­
dination of the laws, regulations and 
administrative provisions relating to the 
application of review procedures to the 
award of public supply and public works 
contracts do not apply to authorities whose 
composition and functioning are governed 
by rules such as those governing the Unab­
hängiger Verwaltungssenat für Kärnten (an 
independent administrative authority 
responsible for verifying the legality of 
administrative measures adopted by the 
Land of Carinthia), which displays all the 
characteristics required for it to be recog­
nised as a court or tribunal within the 
meaning of Article 177 of the Treaty. 
2. Neither Article 2(8) nor any other 
provisions of 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 may be interpreted as meaning 
that, if Directive 92/50 relating to the 
coordination of procedures for the award 
of public service contracts has not been 
transposed by the end of the period pre­
scribed for that purpose, the review bodies 
in the Member States — established under 
Article 2(8) of Directive 89/665 — with 
jurisdiction to review procedures for the 
award of public supply and public works 
contracts may also hear appeals concerning 
procedures for the award of public service 
contracts. 
However, in order to observe the require­
ment that domestic law must be inter­
preted in conformity with Directive 92/50 
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HI v LANDESKRANKENANSTALTEN-BETlUUllSGESULLSCHAn· 
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 relation to awards of 
public service contracts. The national court 
must determine in particular 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 con­
tracts, 
3. Services relating to a number of engi­
neering services, including planning, con­
sultancy and studies for various medical 
facilities, and concerning tasks relating to 
the preparation and execution of projects 
for the construction of a paediatric clinic 
in a hospital and the corresponding medical 
facilities, fall within Category N o 12 of 
Annex I A to Directive 92/50 relating to 
the coordination of procedures for the 
award of public service contracts. 
4. The provisions of Titles I and II of Direc­
tive 92/50 may be relied upon directly by 
individuals before national courts. The 
provisions of Titles III to VI may also be 
relied upon by an individual before a 
national court if it is clear from an indi­
vidual examination of their wording that 
they are unconditional and sufficiently 
clear and precise. 
The detailed provisions of Titles III to VI 
of Directive 92/50 on the choice of award 
procedures and the rules applicable to com­
petitions, common technical and adver­
tising rules, and participation and selec­
tion and award criteria, arc, subject to 
exceptions and qualifications which arc 
apparent from their terms, unconditional 
and sufficiently clear and precise to be 
relied on by service providers before 
national courts. 
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