Opinion of the Advocate General — ECLI:EU:C:2001:600
Date: 2001-11-08
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 — CASE C-470/99 
Summary of the Judgment 
1. Approximation of laws — Procedures for the award of public works contracts — 
Directive 93/37 — Contracting authorities — Body governed by public law — 
Definition — Body which was not established to satisfy specific needs in the general 
interest not having an industrial or commercial character, but in the meantime 
satisfying such needs — Covered 
(Council Directive 93/37, Art. 1(b), second subpara.) 
2 . Approximation of laws — Review procedures relating to the award of public supply 
and public works contracts — Directive 89/665 — Time-limit for contesting 
decisions of contracting authorities and for raising any allegedly unlawful meas­
ures — Whether permissible 
(Council Directive 89/665) 
3. Approximation of laws — Procedures for the award of public works contracts — 
Directive 93/37 — Restricted procedure — Rules laid down in advance for weighting 
the criteria for selecting the candidates invited to tender — Publication required 
(Council Directive 93/37) 
1. The first indent of the second subpara­
graph of Article 1(b) of Directive 93/37 
concerning the coordination of pro­
cedures for the award of public works 
contracts provides that a 'body gov­
erned by public law' means a body 
established for the specific purpose of 
meeting needs in the general interest, 
not having an industrial or commercial 
character. For the purposes of deciding 
whether a body satisfies that condition, 
it is necessary to consider the activities 
which it actually carries on. 
It follows that a body which was not 
established to satisfy specific needs in 
the general interest not having an 
industrial or commercial character, 
but which has subsequently taken 
responsibility for such needs, which it 
has since satisfied, fulfils that condition 
provided that the assumption of 
responsibility for the satisfaction of 
those needs can be established objec­
tively. 
(see paras 56, 63, operative part 1) 
2. 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-
I -11618 
UNIVERSALE-BAU AND OTHERS 
tive 92/50 relating to the coordination 
of procedures for the award of public 
service contracts, does not preclude 
national legislation which provides that 
any application for review of a con­
tracting authority's decision must be 
commenced within a time-limit laid 
down to that effect and that any 
irregularity in the award procedure 
relied upon in support of such appli­
cation must be raised within the same 
period, if it is not to be out of time, 
with the result that, when that period 
has passed, it is no longer possible to 
challenge such a decision or to raise 
such an irregularity, provided that the 
time-limit in question is reasonable. 
First, the full implementation of the 
objective sought by Directive 89/665 
would be undermined if candidates and 
tenderers were allowed to invoke, at 
any stage of the award procedure, 
infringement of the rules of public 
procurement, thus obliging the con­
tracting authority to restart the entire 
procedure in order to correct such 
infringements. Second, the setting of 
reasonable limitation periods for bring­
ing proceedings must be regarded as 
satisfying, in principle, the requirement 
of effectiveness under Directive 89/665, 
since it is an application of the funda­
mental principle of legal certainty. 
(see paras 75-76, operative part 2) 
3. Directive 93/37 concerning the coor­
dination of procedures for the award of 
public works contracts is to be inter­
preted as meaning that where, in the 
context of a restricted procedure, the 
contracting authority has laid down in 
advance the rules for weighting the 
criteria for selecting the candidates 
who will be invited to tender, it is 
obliged to state them in the contract 
notice or tender documents. 
Such an interpretation is the only one 
which is apt to guarantee an appropri­
ate level of transparency and, there­
fore, compliance with the principle of 
equal treatment in the procedures for 
awarding contracts to which that direc­
tive applies. 
(see paras 99-100, operative part 3) 
I -11619