Opinion of the Advocate General — ECLI:EU:C:2003:104
Date: 2003-02-25
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-410/01 
Summary of the Judgment 
Approximation of laws — Review procedures relating to the award of public supply and 
public works contracts — Directive 89/665 — Member States under an obligation 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)) 
The fact that Article 1(3) of Directive 
89/665 on the coordination of the laws, 
regulations and administrative provisions 
relating to the application of review pro­
cedures to the award of public supply and 
public works contracts, as amended by 
Directive 92/50 relating to the coordination 
of procedures for the award of public 
service contracts, expressly allows Member 
States to determine the detailed rules 
according to which they must make the 
review procedures provided for by that 
directive available to any person having or 
having had an interest in obtaining a 
particular public contract and who has 
been or risks being harmed by an alleged 
infringement none the less does not auth­
orise them to give the term 'interest in 
obtaining a public contract' an interpre­
tation which may limit the effectiveness of 
that directive. 
That provision therefore precludes an 
undertaking which has participated in a 
public procurement procedure from being 
regarded as having lost its interest in 
obtaining that contract on the ground that, 
before bringing a review procedure under 
that directive, it failed to apply to a 
conciliation commission. 
First, prior application to such a concili­
ation commission inevitably has the effect 
of delaying the introduction of the review 
procedures and, second, a mere conciliation 
commission has none of the powers which 
Directive 89/665 requires Member States to 
grant the bodies responsible for carrying 
out those review procedures, so that refer­
ral to it does not ensure the effective 
application of the Community directives 
on public procurement. 
(see paras 32-35, operative part) 
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