Opinion of the Advocate General — ECLI:EU:C:2003:103
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 of the Judgment 
1. Approximation of laws — Review procedures relating to the award of public supply 
and public works contracts — Directive 89/665 — Member States under an 
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SUMMARY — CASE C-249/01 
obligation to provide for review procedures — Access to review procedures limited to 
persons who have been or risk being harmed by the alleged infringements — Whether 
permissible 
(Council Directive 89/665, Art. 1(3)) 
2. Approximation of laws — Review procedures relating to the award of public supply 
and public works contracts — Directive 89/665 — Member States under an obli­
gation to provide for review procedures — Tenderer whose bid should have been 
eliminated before the selection — Access to review procedures refused because the 
tenderer neither has been nor risks being harmed — Not permissible 
(Council Directive 89/665, Art. 1(3)) 
1. Article 1(3) 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, does not pre­
clude the review procedures laid down 
by the directive being available to 
persons wishing to obtain a particular 
public contract only if they have been 
or risk being harmed by the infringe­
ment they allege. 
(see para. 19, operative part 1) 
2. Article 1(3) 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, does not per­
mit a tenderer to be refused access to 
the review procedures laid down by the 
directive to contest the lawfulness of 
the decision of the contracting auth­
ority not to consider his bid as the best 
bid, on the ground that his bid should 
have been eliminated at the outset by 
the contracting authority for other 
reasons and that therefore he neither 
has been nor risks being harmed by the 
unlawfulness which he alleges. In the 
review procedure thus open to the 
tenderer, he must be allowed to chal­
lenge the ground of exclusion on the 
basis of which the review body intends 
to conclude that he neither has been 
nor risks being harmed by the decision 
he alleges to be unlawful. 
(see para. 29, operative part 2) 
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