Opinion of the Advocate General — ECLI:EU:C:2001:367
Date: 2001-06-28
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 — Reference to the Court — National court or tribunal within 
the meaning of Article 234 EC — Definition — Body competent to hear appeals 
concerning the award of public contracts 
(Art. 234 EC) 
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SUMMARY — CASE C-92/00 
2. Approximation of laws — Review procedures relating to the award of public supply 
and public works contracts — Directives 89/665 and 92/50 — Withdrawal of an 
invitation to tender — Member States under an obligation to provide for review 
procedures — Limitation of the extent of the review of the legality of the decision — 
None — Determination of the time to be taken into consideration for assessing the 
legality of the decision — jurisdiction of the national court — Limits 
(Council Directives 89/665, Art. 1(1), and 92/50) 
1. In order to determine whether a body 
making a reference for a preliminary 
ruling is a court or tribunal within the 
meaning of Article 234 EC, which is a 
question governed by Community law 
alone, the Court takes account of a 
number of factors, such as whether the 
body is established by law, whether it is 
permanent, whether its jurisdiction is 
compulsory, whether its procedure is 
inter partes, whether it applies rules of 
law and whether it is independent 
Those criteria are satisfied by the Ver¬ 
gabekontrollsenat des Landes Wien 
(Public-Procurement Review Chamber 
of the Vienna Region), which is estab­
lished by the Viennese law on public 
procurement as a body with jurisdic­
tion to rule, applying rules of law, 
following an inter partes procedure, 
and by decision with binding force, on 
review proceedings concerning pro­
cedures for the award of contracts. 
Moreover, the provisions governing the 
composition and functioning of that 
body guarantee its permanence and 
independence. 
(see paras 25-27) 
2. Article 1(1) 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, as amended by 
Directive 92/50 relating to the coor­
dination of procedures for the award of 
public service contracts, requires the 
decision of the contracting authority to 
withdraw the invitation to tender for a 
public service contract to be open to a 
review procedure, and to be capable of 
being annulled where appropriate, on 
the ground that it has infringed Com­
munity law on public contracts or 
national rules implementing that law. 
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HI 
That decision is subject to fundamental 
rules of Community law, and in par­
ticular to the principles laid down by 
the Treaty on the right of establishment 
and the freedom to provide services. It 
also falls within the rules laid down by 
Directive 89/665 in order to ensure 
compliance with the rules of Commu­
nity law on public contracts. 
In the context of such a review pro­
cedure, Directive 89/665, as amended 
by Directive 92/50, precludes national 
legislation from limiting review of the 
legality of the withdrawal of an invi­
tation to tender to mere examination of 
whether it was arbitrary. 
Determination of the time to be taken 
into consideration for assessing the 
legality of the decision by the contract­
ing authority to withdraw an invitation 
to tender is a matter for national law, 
provided that the relevant national 
rules are not less favourable than those 
governing similar domestic actions and 
that they do not make it practically 
impossible or excessively difficult to 
exercise rights conferred by Commu­
nity law. 
(see paras 42, 48, 55, 64, 68, 
operative parts 1-3) 
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