Opinion of the Advocate General — ECLI:EU:C:2003:628
Date: 2003-11-20
Language of the case: German
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. Preliminary rulings – Jurisdiction of the Court – Limits – General or hypothetical questions – Determination by the Court as to whether it has jurisdiction (Art. 234 EC) 2. Approximation of laws – Review procedures concerning the award of public supply and public works contracts – Directive 89/665 – Obligation on Member States to provide for review procedures – Clause in an invitation to tender incompatible with Community rules – Obligation to make it possible to rely on that incompatibility in a review procedure (Council Directive 89/665, Arts 1(1) and 2(7)) 1. The procedure provided for by Article 234 EC is an instrument of cooperation between the Court of Justice and national courts. In the context of that cooperation, the national court or tribunal seised of the dispute, which alone has direct knowledge of the facts giving rise to the dispute and must assume responsibility for the subsequent judicial decision, is best placed to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. The fact none the less remains that it is for the Court, if need be, to examine the circumstances in which the case was referred to it by the national court or tribunal, in order to assess whether it has jurisdiction and in particular to determine whether the interpretation of Community law which is requested bears any relation to the actual nature and subject-matter of the main proceedings, in order that the Court will not be required to give opinions on general or hypothetical questions. If it should appear that the question raised is manifestly irrelevant for the purposes of deciding the case, the Court must declare that there is no need to proceed to judgment. (see paras 33-35) 2. 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 coordination of procedures for the award of public service contracts, and in particular Articles 1(1) and 2(7) thereof, must be construed as meaning that, in the case where a clause in an invitation to tender is incompatible with Community rules on public contracts, the national legal systems of the Member States must provide for the possibility of relying on that incompatibility in the review procedures referred to in Directive 89/665. (see para. 50, operative part)