Judgment — ECLI:EU:C:2008:351
Date: 2008-06-19
Language of the case: German
Court formation: Third Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Concepts: Concept of award
Procedure: Reference for a preliminary ruling
Origin: Austria

summary the answer to the fourth question may be stated thus: A public contract for services may be awarded as a single contract under a negotiated procedure without prior publication of a contract notice, if the contract is predominantly for non-priority services and an exclusive right as referred to in Article 11(3)(b) of Directive 92/50 subsists not for all but only for certain of the services to be provided, unless the individual services were assembled into a single contract for services arbitrarily or in order to circumvent procurement provisions. 2. Fifth question 131. By its fifth question the Federal Procurement Office would essentially like to know whether an undertaking may demonstrate its standing to perform a public contract by the mere assertion that another undertaking is obliged under Article 82 EC to make certain data available to it on reasonable conditions. 132. The background to this question is the fact that the provision of news agency services, as sought in this case by the Austrian federal authorities, presupposes access to a comprehensive archive from which inter alia historical information and texts may be obtained. According to the information in the order for reference, PN does not have anything like a historical data archive which would be comparable to that held by APA. Moreover, APA does not grant its competitors access to its archives, in any event not for the purpose of selling on the data obtainable there. It must now be clarified whether PN may contend as proof of its standing within the meaning of Article 31 of Directive 92/50 that it has legal entitlement to access the APA archives, in particular the APADok database. 133. This is an allusion to the doctrine of competition law known as the ‘essential facilities doctrine’. Under the relevant case-law, it may be regarded as an abuse under Article 82 EC – albeit only under exceptional circumstances – for a market-dominant undertaking to refuse another undertaking access to essential goods, services or data (‘essential facilities’). (69) In such cases Article 82 EC may found a mandatory requirement on the part of the market-dominant undertaking to enter into a contract. 134. However, in the present case it may remain open whether a database such as the APADok archive operated by APA contains data essential to its competitors, that is to say is an ‘essential facility’, and whether there are exceptional circumstances which would require APA to grant its competitors access on reasonable conditions to its archives. 135. For a service provider which, in regard to its admission to an award procedure, wishes to refer to the resources of other establishments or undertakings has to prove that it can actually avail itself of those resources. (70) Otherwise the contracting authority will have before it no persuasive comparison of that service provider’s standing with that of other possible service providers. If the contracting authority merely were to trust in the potential ability of the service provider to avail itself of those resources, the authority would be running the risk of awarding the contract to an undertaking whose standing would prove, in retrospect, to be deficient, that is in the event of difficulties arising in regard to accessing the requisite resources. At the same time it might be withholding the contract from another undertaking with actual standing. Such conduct would be in keeping neither with the notion of equality as between all possible service providers nor with the principle of efficacy in the award procedure. 136. A news agency such as PN cannot therefore merely assert that it is entitled to access the archives of APA but must specifically prove that such access will actually be granted to it, for instance in the form of an express assurance to that effect or in the form of a licence agreement already entered into. Otherwise it cannot successfully demonstrate its standing in an award procedure by a reference to APA’s archives. 137. The often brief time-limits within which a decision must be reached in the award procedure are inimical to clarification, which is frequently time-consuming, of complex legal questions in connection with Article 82 EC and the ‘essential facilities doctrine’. The undertaking concerned must bring any dispute on these matters to a conclusion before applying for a public contract. 138. Accordingly, as to the fifth question, I conclude that an undertaking cannot demonstrate its standing to perform a public contract for services by the mere assertion that another undertaking is obliged under Article 82 EC to make certain data available to it on reasonable conditions. C – Sixth and seventh questions 139. In its sixth and seventh questions the Federal Procurement Office seeks information about the extent of legal protection to be afforded to an undertaking not taken into consideration by a contracting authority. The logical assumption underlying these questions too is that transactions such as those in 2000, 2001 and 2005 are to be regarded as awards of public contracts for services. This is also conceded by the Federal Procurement Office in its order for reference. 140. On the basis of the information available to the Court, I am, as already mentioned, of the opinion that none of these transactions constituted such an award. (71) Accordingly, I am examining the sixth and seventh questions only in the alternative. 1. Sixth question 141. The sixth question referred by the Federal Procurement Office concerns the interpretation of the concept of ‘harm’ in Article 1(3) and Article 2(1)(c) of Directive 89/665. As already mentioned, (72) this question is admissible only in relation to Article 1(3) of the directive. 142. By its question the Federal Procurement Office is essentially seeking to ascertain whether a review procedure is to be carried out where the applicant claims that it missed the opportunity of participating in an award procedure owing to the fact that there was an unlawful failure to publish a contract notice or whether the applicant must in addition prove its own standing to perform the relevant public contract. Accordingly, it is necessary to elucidate further the question as to who is entitled to apply for a review. 143. Article 1(3) of Directive 89/665 permits the Member States to restrict the right to bring an application in relation to a review procedure for the award of public contracts in two respects: (73) on the one hand, through the requirement that the applicant should have an interest in the relevant public contract and, on the other, through the requirement of existing or imminent harm to the applicant. In this way public interest actions and actions brought by applicants with no prospect of success may be excluded. 144. However, that must not affect the practical effectiveness of the directive. (74) The restrictions on the entitlement to bring an action must therefore be construed in the light of the twofold aim of the directive: on the one hand, the individual must be afforded an effective legal remedy in connection with the award of public contracts and, on the other, the requisite review of the lawfulness of the decisions by contracting authorities must be facilitated. 145. For, as is apparent from the first and second recitals in its preamble, Directive 89/665 seeks to strengthen the means available at national and Community levels in order to secure the actual application of the Community directives in the sphere of public procurement. To that end the Member States are obliged under Article 1(1) of the directive to ensure that unlawful decisions by contracting authorities can be reviewed effectively and as swiftly as possible. (75) 146. Against that background, entitlement to bring an action in procurement review proceedings may not be restricted disproportionately. In particular the admissibility of an application for review must not be subject to the same requirements as apply in regard to whether it is well founded. (76) 147. It cannot therefore be the case that already at the stage of lodgement of the application the person concerned is required to produce specific evidence of actual harm or that such harm is imminent. In order for there to be entitlement to make an application for review, it must be sufficient that, in addition to the infringement of the law by the contracting authority, the person concerned persuasively asserts an interest in the contract at issue and the possibility of the occurrence of damage. 148. The possibility of harm to the person concerned must be presumed where it is not manifestly excluded that the applicant would have received the award if the legal infringement alleged had not occurred. Where, as in the present case, the public contract is awarded directly (77) without prior contract notice, it follows from the fact that the person concerned is – allegedly unlawfully – precluded from participating in the award procedure that he may have lost a contract and thus suffered loss. (78) 149. Nor may actual proof of standing be required of the person concerned at the stage of an application for review; in the same way, he cannot be required to provide evidence that he would have received the award if the alleged infringement had not taken place. (79) Otherwise access to the review procedure would be rendered impossible in practice or at any rate excessively difficult. (80) In particular in cases of direct awards such as the present case, it would be barely possible for the person concerned to provide actual proof of standing, since he would have no accurate information about the requirements laid down by the contracting authority because of the lack of a prior contract notice. 150. Only by way of exception may an application for review be rejected as inadmissible ab initio by reference to a lack of standing on the part of the person concerned, namely where that lack of standing is so plainly obvious at the time of the application as to require no further examination. Everything else is a question of the merits of the application. 151. On the sixth question I therefore conclude that an application for review under Article 1(3) of Directive 89/665 is admissible if the applicant persuasively asserts an interest in the public contract, the existence of a legal error and the possible harm suffered or about to be suffered. If the contract was awarded without prior publication of a contract notice, it follows from the fact that the person concerned was precluded from participating in the award procedure that he may have suffered harm unless there is a manifest lack of standing on its part. 2. Seventh question 152. By its seventh question the Federal Procurement Office essentially seeks to ascertain whether it is consistent with the principles of equivalence and effectiveness for national law to provide, in the case of an application, in a matter of procurement law, for a declaration of illegality which is a mandatory requirement of a subsequent claim for damages, a limitation period of no more than six months from the date of the award that is alleged to be contrary to procurement law. The Federal Procurement Office also questions whether the principle of effectiveness requires any additional periods in which there was no effective remedy under national law to be added to the abovementioned period of six months. 153. The background to this question is that PN made its applications for review to the Federal Procurement Office only in July 2006, that is to say within six months of the entry into force of the new procedural provisions in Paragraph 331 of the BVergG 2006 on 1 February 2006, yet more than six months after the matters at dispute in this case that date back to 2000, 2001 and 2005. According to the Federal Procurement Office, direct awards (‘de facto awards’) can be ‘proceeded against effectively’ in Austria only since the date of entry into force of Paragraph 331 of the BVergG 2006. 154. Directive 89/665 makes no express provision concerning the periods applicable to review proceedings under Article 1 thereof. 155. The starting point for the reply to the question submitted to the Court is therefore the principle ofprocedural autonomy enjoyed by the Member States. (81) It is settled case-law that, in the absence of Community rules in the field, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law, provided, first, that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and, secondly, that they do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness). (82) Both principles are also reflected in Article 1 of Directive 89/665; the principle of equivalence in Article 1(2) and the principle of effectiveness in Article 1(1). 156. The principle of equivalence is a manifestation of the general principle of equal treatment and non-discrimination, (83) which requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. (84) 157. The Commission and APA and APA-OTS rightly pointed to a specific peculiarity in that connection which differentiates review proceedings in procurement matters. Thus, Article 1(1) of Directive 89/665 requires Member States to facilitate as rapid a review as possible of infringements of procurement law. In this way, first, effective legal protection is to be ensured and, secondly, legal certainty is to be created as swiftly as possible. In light of this objective, it is justified in the case of applications for review under Directive 89/665, in appropriate cases, to provide for shorter periods than the limitation periods governing claims for damages under the general domestic legal provisions. 158. The principle of equivalence does not therefore preclude a six-month limitation period for applications for review such as, for example, the one provided for in Paragraph 332(2) and (3) of the BVergG 2006, even if under national law the general limitation period for claims for damages is longer. 159. However, it remains to be examined in the light of the principleof effectiveness whether a limitation period, such as that provided for under Austrian law for applications for a declaration, does not render it virtually impossible or excessively difficult for the persons concerned subsequently to assert their rights to claim damages under Article 2(1)(c) of Directive 89/665. 160. In principle it is not contrary to the principle of effectiveness to lay down reasonable limitation periods for bringing legal proceedings, since to do so is an application of the basic principle of legal certainty. (85) 161. The reasonableness of a limitation period is therefore to be adjudged in the light of the nature and legal consequences of the relevant remedy and of the relevant rights and interests of all the persons concerned. 162. Accordingly, in applications for review that seek to have contracts which have already been concluded declared invalid – whether retroactively or for the future – an absolute limitation period of six months is in principle entirely reasonable. (86) For the particularly onerous legal consequences of invalidating a contract already concluded justify laying down a period that runs regardless of whether the applicant was aware, or at least ought to have been aware, that the award of the contract was contrary to procurement law. There is a clear need, both for the contracting authority and for its contract partner, for legal certainty as to the validity of the concluded contract and this should be protected. 163. In relation to a case such as this one, it must however be borne in mind that an absolute limitation period of six months, such as that provided for in Paragraph 332(2) and (3) of the BVergG 2006 for applications for a declaration under Paragraph 331(1) of that law, affects not only those who actually seek the invalidation of a contract that has already been concluded but also those who merely wish to take an essential procedural step in preparation for a subsequent action for damages before the Austrian civil courts. 164. So, if the person concerned only becomes aware more than six months later of the damage he has suffered as a result of an award of a public contract contrary to procurement law without prior publication of a contract notice (direct award or de facto award), he cannot apply to the civil courts even for damages since in order to do so it is mandatory under Paragraph 341(2) of the BVergG 2006 that he should first have applied for a declaration, which, however, by this stage would be time-barred. 165. Therefore, the limitation period in Paragraph 332(2) and (3) of the BVergG 2006 goes beyond its actual scope in also affecting subsequent proceedings for which it is unreasonably stringent. The contracting authority does not have the same need for legal certainty with regard to mere applications for damages as it does with regard to the validity of a contract already concluded. 166. In so far as a Member State avails itself of the possibility provided for in Article 2(2) and (5) of Directive 89/665, and makes the bringing of actions for damages dependent on an earlier successful application for a declaration of invalidity, the relevant limitation periods must be structured and applied in such a way that the actual implementation of the claim for damages is not rendered virtually impossible or excessively difficult. (87) 167. To summarise, the principle of effectiveness requires that the time-limit for an application for a declaration which the applicant is merely making in preparation for bringing an action for damages should not start to run before the applicant was aware or ought to have been aware of the occurrence of the damage. Conversely, in so far as the applicant intends, by such an application for a declaration, also to obtain a ruling that the contract concluded by the public contracting authority is invalid, more stringent time-limits may be laid down which start to run, irrespective of actual or possible awareness of any damage. 168. The national courts must, where possible, interpret national law in such a way that observance of the principle of effectiveness deriving from Directive 89/665 is assured, and if necessary must disapply any provision in so far as its application would, in the circumstances of the case, lead to a result contrary to Community law. (88) 169. In a case such as this one, in which there was a direct award without prior publication of a contract notice, this means that the time-limit for the application for a declaration may not start to run until the person concerned was aware or ought to have been aware of the alleged infringement of procurement law, in a case where the application is a necessary precondition of a subsequent action for damages. 170. In its order for reference, the Federal Procurement Office indicates that, in its opinion, a result that complies with Community law can in fact be achieved, first, by applying the newly created remedy in Paragraph 331(1)(4) of the BVergG 2006 to events which occurred before this provision entered into force and, secondly, by calculating the applicable time-limits by reference to specific provisions of general civil law, with the result that they do not start to run until the applicant becomes aware of the damage and are extended by periods when there was no effective remedy. 171. To summarise in regard to the seventh question: The principle of effectiveness requires that Article 1(1) of Directive 89/665 be interpreted as meaning that a reasonable period must be allowed in the case of an application for review which under national law is a mandatory prerequisite of a subsequent action for damages; that period may not begin to run until the person concerned was aware or should have been aware of the alleged infringement of procurement law, and it must be extended by periods when there was no effective legal remedy. The national court must interpret national procedural law as far as possible so that this result is achieved and, if necessary, must disapply any provision in so far as its application would, in the circumstances of the case, lead to a result contrary to Community law. VII – Conclusion 172. Against the background of the foregoing, I propose that the Court should answer only the first three questions submitted to it by the Austrian Federal Procurement Office as follows: (1) Generally on the first, second and third questions: A contract within the scope of Directive 92/50 whose terms are amended during its currency does not require an award procedure to be carried out unless that amendment is material. (2) Specifically on the first question: (a) No material contractual amendment can be presumed to have occurred where the contracting authority accepts that performance of a part of a public contract be transferred to the contractor’s subsidiary company which is a wholly‑owned subsidiary governed by it in the same way as its own in‑house departments. That is not altered by the fact that in theory the contractor might at a subsequent time transfer shares in the subsidiary company to third parties. (b) If the contractor is a legal person, any changes occurring in the composition of its shareholders during the currency of the contract does not constitute a material contractual amendment. (3) Specifically on the second and third questions: (a) No material contractual amendment may be presumed where purely technical adjustments of the contract are carried out in light of altered external circumstances; that includes the conversion into euro of remuneration originally expressed in national currency and the reference to a new index which is an equivalent successor index to a previously used index. (b) Nor is there a material contractual amendment where in the case of a public services contract without limit as to time the parties have agreed not to give notice for three years, unless there is firm evidence that during the abovementioned period the contracting authority would otherwise have terminated the existing contract for legal or economic reasons. (c) Whether the alteration of a price for a part of the services to be provided constitutes a material contractual amendment depends on the significance of the price amendment in question, both in relation to the part-service concerned and in relation to the public contract in its entirety. 1 – Original language: German. 2 – OJ 1992 L 209, p. 1. This directive was repealed and replaced by Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114). The latter amendment was, however, to be transposed into national law by 31 January 2006 only. Since it was not transposed into Austrian law prior to that date, it is without relevance to the facts of the main proceedings which concern the years 2000, 2001 and 2005. 3 – OJ 1989 L 395, p. 33. 4 – Further amendments to this directive are to be found in Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (OJ 2007 L 335, p. 31; ‘Directive 2007/66’). The latter amendments only came into force on 9 January 2008 and will have to be transposed by 20 December 2009; they are therefore without relevance to the facts of the main proceedings. 5 – BGBl. I, No 17/2006. 6 – A predecessor organisation of the APA, the Österreichische Correspondenz, had already been established in 1849 in Vienna. 7 – It is apparent from the file that it is a registered cooperative society with limited liability. 8 – According to information provided by the Federal Chancellery, which is participating in the proceedings, that involves the adjustment of a contractual relationship which has subsisted since 1946. 9 – These maximum fees are applicable where broadcasts are transmitted online. 10 – According to the order for reference, PN’s main application is based on Paragraph 331(1)(4) and the ancillary application on Paragraph 331(1)(1) of the BVergG 2006. 11 – Paragraph 291 of the BVergG 2006. 12 – Second sentence of Paragraph 291(2) of the BVergG 2006. 13 – Paragraphs 292 and 295 of the BVergG 2006. 14 – On the settled case-law of the Court, see Case C-54/96 Dorsch Consult [1997] ECR I‑4961, paragraph 23; Case C-53/03 Syfait and Others [2005] ECR I‑4609, paragraph 29; and Case C‑195/06 Österreichischer Rundfunk [2007] ECR I-0000, paragraph 19. 15 – See Case C-411/00 Felix Swoboda [2002] ECR I‑10567, in particular paragraphs 25 to 28; Case C-314/01 Siemens and ARGE Telekom [2004] ECR I‑2549; and Case C-15/04 Koppensteiner [2005] ECR I‑4855. The current organisation of the Federal Procurement Office on the basis of the BVergG 2006 is, according to the order for reference, essentially the same as at the time of the Koppensteiner case. 16 – Similarly the Court recognised a federal procurement supervisory committee, at that time in Germany, as entitled to make a reference (Dorsch Consult, cited in footnote 14, paragraph 38). 17 – Case 72/83 Campus Oil and Others [1984] ECR 2727, paragraph 10; Case C‑112/00 Schmidberger [2003] ECR I-5659, paragraph 39; and Case C-470/03 AGM‑COS.MET [2007] ECR I‑2749, paragraph 45. 18 – Schmidberger (cited in footnote 17), paragraphs 40 and 41. 19 – The Republic of Austria has availed itself of the possibility set out in Article 2(2) of Directive 89/665 of transferring the powers in review proceedings to several bodies. 20 – Case C-315/01 GAT [2003] ECR I‑6351, paragraph 38. 21 – See Case C-76/97 Tögel [1998] ECR I‑5357, paragraphs 53 and 54. Unlike the actions which are at issue in these proceedings and date back to 2000, 2001 and 2005, that is to say, within the temporal application of Community law, the procurement directives were not applicable to the basic agreement because in 1994 the Republic of Austria was not a Member State of the European Union. 22 – On the specific problem of the coupling of a contract without limit as to time with a waiver of a right to terminate, see below, in particular point 74 of this Opinion. 23 – A preliminary reference by the German Oberlandesgericht (Higher Regional Court) Rostock did not lead to a judgment of the Court (Case C-50/03, removed from the register on 9 November 2004). 24 – On the broad interpretation of various concepts defining the scope of the procurement directives, see Case C-373/00 Adolf Truley [2003] ECR I‑1931, paragraph 43; Case C-129/04 Espace Trianon and Sofibail [2005] ECR I‑7805, paragraph 73; and Case C-119/06 Commission v Italy [2007] ECR I-0000, paragraph 43. 25 – Case C-360/96 BFI Holding [1998] ECR I‑6821, paragraph 41, Case C-380/98 University of Cambridge [2000] ECR I‑8035, paragraph 16, Case C-507/03 Commission v Ireland [2007] ECR I-0000, paragraph 27, and Case C-337/06 Bayerischer Rundfunk and Others [2007] ECR I‑0000, paragraph 38; see also the second and sixth recitals in the preamble to Directive 92/50. 26 – University of Cambridge (cited in footnote 25), paragraph 17; Felix Swoboda (cited in footnote 15), paragraph 45; and Bayerischer Rundfunkand Others (cited in footnote 25), paragraph 36. 27 – Case C-26/03 Stadt Halle and RPL Lochau [2005] ECR I‑1, paragraphs 44 and 47, and Bayerischer Rundfunkand Others (cited in footnote 25), paragraph 39. 28 – To that effect, see also Case C-337/98 Commission v France [2000] ECR I‑8377, paragraphs 46, 50 and 51, and Case C-496/99 P Commission v CAS Succhi di Frutta [2004] ECR I‑3801, paragraph 117, where reference is made to significant contractual provisions or tender conditions. 29 – Admittedly, it is not always easy in practice to distinguish between material and non-material contractual amendments because that has to be decided on a case-by-case basis. The use of uncertain legal concepts requiring interpretation is however unavoidable in any area of law and is far from unknown in procurement law. 30 – There does not seem to be any consensus between the parties to the main proceedings on this point. Nor does the order for reference use any uniform terminology. However, it is for the Federal Procurement Office to clarify how the translation is to be classified under civil law. 31 – See Articles 25 and 32(2)(c) and (h) of Directive 92/50 and Case C-176/98 Holst Italia [1999] ECR I‑8607, paragraphs 26 and 27. However, the award of subcontracts for carrying out substantive parts of the contract may be restricted under national law (Siemensand ARGE Telekom, cited in footnote 15, paragraph 45). 32 – On the criteria for an in-house transaction, see in particular Case C-107/98 Teckal [1999] ECR I‑8121, paragraph 50, Stadt Halle and RPL Lochau (cited in footnote 27), paragraph 49, Case C‑458/03 Parking Brixen [2005] ECR I‑8585, paragraph 62, and Case C-295/05 Asemfo [2007] ECR I‑2999, paragraph 55; on the concept of the in-house transaction, see my Opinion in Parking Brixen, points 1 and 2. 33 – The same is true of the dissolubility of the profit and loss exclusion agreement. 34 – See my Opinion in Parking Brixen (cited in footnote 32), paragraph 56. The question of the actual foreseeability of an assignment of shares to third parties also plays a significant role in Case C-29/04 Commission v Austria [2005] ECR I‑9705, paragraphs 38 to 41; Case C-410/04 ANAV [2006] ECR I‑3303, paragraphs 30 to 32; and Parking Brixen (cited in footnote 32), paragraph 67(c). 35 – See above, points 55 to 58 of this Opinion. 36 – The judgment in Case C-57/01 Makedoniko Metro and Mikhaniki [2003] ECR I‑1091, paragraph 61, merely clarifies that making provision for the composition of consortia of bidders is within the competence of the Member States. Accordingly, it is for the Member States to determine whether changes in the composition of such consortia are indeed permissible. However that is to be distinguished from the question which is relevant for present purposes, namely whether such changes occurring after the contract has been awarded are to be deemed to constitute material amendments to the contract and accordingly satisfy the criteria of an award of a public contract. The latter question is a matter of Community law. 37 – If one wished to treat any change in the ownership of a legal person as giving cause to carry out a new award procedure, the award of public contracts would in the case of listed companies whose shareholders sometimes change on a day-to-day basis be rendered practically impossible. 38 – See above, point 48 of this Opinion. 39 – See above, points 48 and 49 of this Opinion. 40 – In this connection see Tögel (cited in footnote 21), paragraphs 53 and 54. 41 – See above, points 48 and 49 of this Opinion. 42 – In this connection see Commission v CAS Succhi di Frutta (cited in footnote 28), paragraph 117. 43 – Joined Cases C-482/01 and C-493/01 Orfanopoulos and Oliveri [2004] ECR I‑5257, paragraph 42, and Case C-246/04 Turn- und Sportunion Waldburg [2006] ECR I‑589, paragraph 21. 44 – It is true that an adjustment to the contract on the occasion of the currency conversion would not have been absolutely necessary because the legal framework conditions already existing ensured that all amounts previously expressed in the national currency would in future be understood as euro amounts, without that implying any change in the existing contractual obligations (see also Articles 3 and 5 of Council Regulation (EC) No 1103/97 of 17 June 1997 on certain provisions relating to the introduction of the euro (OJ 1997 L 162, p. 1). However, as APA and APA-OTS correctly point out, an express adjustment to the contract may, in a contract for continuing obligations, such as the contract at issue, be appropriate none the less in order to avoid the increased administrative burden of repeatedly performing a currency conversion. 45 – The maximum line charges agreed in the first supplemental agreement for 2002, 2003 and 2004 are only slightly different. Subject to a closer examination by the Federal Procurement Office, such slight price differences appear to move from year to year within the framework of the general price trends to be anticipated in subsequent years based on projections from 2001. 46 – See above, points 81 to 94 of this Opinion. 47 – See my comments on the first, second and third questions above, points 41 to 105 of this Opinion. 48 – Case C-507/03 Commission v Ireland (cited in footnote 25), paragraph 25. 49 – APA and APA-OTS are of the opinion that their documentation services are to be assigned to the ‘Library services’ sector, CPC Reference No 96311 and their OTS services to the ‘Electronic message and information services’ sector, CPC Reference No 75232. 50 – The order for reference defines the factual framework in which the questions referred are to be answered; see on that point the case-law cited in footnote 43. 51 – Under Article 9 in conjunction with Article 10 of Directive 92/50, only Articles 14 and 16 of the directive are applicable to such contracts, which are of no relevance to the matters at issue here. The other procedural provisions laid down in Directive 92/50, in particular those concerning tenders with prior notification of the award procedure, do not apply to those contracts (Case C‑507/03 Commission v Ireland, cited in footnote 25, paragraphs 23 and 24). However, the prohibition on discrimination in Article 3(2) of Directive 92/50 applies (Case C-234/03 Contseand Others [2005] ECR I‑9315, paragraph 47). 52 – Parking Brixen (cited in footnote 32), paragraph 46; see also Case C-324/98 Telaustria and Telefonadress [2000] ECR I‑10745, paragraph 60, Case C-231/03 Coname [2005] ECR I‑7287, paragraph 16, Case C-264/03 Commission v France [2005] ECR I‑8831, paragraph 33, ANAV (cited in footnote 34), paragraph 18, and Case C-6/05 Medipac-Kazantzidis [2007] ECR I-4557, paragraph 33; see also the order of 3 December 2001 in Case C-59/00 Vestergaard [2001] ECR I‑9505, paragraph 20. 53 – Case C-507/03 Commission v Ireland (cited in footnote 25), paragraph 29. 54 – Case C-507/03 Commission v Ireland (cited in footnote 25), paragraph 30; see on the transparency rule also Telaustria and Telefonadress (cited in footnote 52), paragraph 62, Coname (cited in footnote 52), paragraphs 16 and 17, Parking Brixen (cited in footnote 32), paragraphs 46 to 49, and ANAV (cited in footnote 34), paragraphs 18 to 21. 55 – Case C-507/03 Commission v Ireland (cited in footnote 25), paragraphs 29 and 30; to the same effect, see Case C‑380/05 Centro Europa 7 [2008] ECR I‑0000, paragraph 67. 56 – Telaustria and Telefonadress (cited in footnote 52), paragraph 62; Coname (cited in footnote 52), paragraphs 16 and 17; Parking Brixen (cited in footnote 32), paragraph 49; and ANAV (cited in footnote 34), paragraph 21. 57 – Coname (cited in footnote 52), paragraph 21; there is a misunderstanding in Parking Brixen (cited in footnote 32), paragraph 50, which in the German version mentions ‘Ausschreibung’ (tender) which presumably is a mistranslation of the French term ‘mise en concurrence’ (call for competition). 58 – Telaustria and Telefonadress (cited in footnote 52), paragraph 62; Parking Brixen (cited in footnote 32), paragraphs 49 and 50; and ANAV (cited in footnote 34), paragraph 21. Useful indications are provided in this connection by the Commission interpretative communication on the Community law applicable to contract awards not or not fully subject to the provisions of the public procurement directives (OJ 2006 C 179, p. 2). 59 – See my Opinion in Parking Brixen (cited in footnote 32), point 37. 60 – In this connection see the Opinions of Advocate General Jacobs in Case C-525/03 Commission v Italy [2005] ECR I‑9405, point 47, of Advocate General Stix-Hackl in Case C-532/03 Commission v Ireland [2007] ECR I-0000, point 111, and of Advocate General Sharpston in Case C-195/04 Commission v Finland [2007] ECR I‑3351, points 76 and 77; see also my Opinion in Parking Brixen (cited in footnote 32), point 46. 61 – In this connection see Case C-507/03 Commission v Ireland (cited in footnote 25), paragraphs 27 to 29; see also my Opinion in Parking Brixen (cited in footnote 32), point 47. 62 – Whether there is such an exclusive right in this case is a matter for the Federal Procurement Office. 63 – In this connection see also the Commission’s communication (cited in footnote 58), point 2.1.4. 64 – Case C-126/03 Commission v Germany [2004] ECR I‑11197, paragraph 23, and Joined Cases C-20/01 and C-28/01 Commission v Germany [2003] ECR I‑3609, paragraph 58. See also Article 11(4) of Directive 92/50, according to which an open or restricted procedure must be used ‘in all other cases’. 65 – See on this above, points 20, 61 and 62 of this Opinion. 66 – See also Felix Swoboda (cited in footnote 15), paragraphs 56 and 60. 67 – Felix Swoboda (cited in footnote 15), paragraphs 57 and 60. 68 – See also above, point 125 of this Opinion. 69 – Joined Cases C-241/91 P and C-242/91 P RTE and ITP v Commission, (‘Magill’) [1995] ECR I‑743, paragraphs 49 to 57; Case C-7/97 Bronner [1998] ECR I‑7791, paragraphs 38 to 47; and Case C-418/01 IMS Health [2004] ECR I‑5039. 70 – Holst Italia (cited in footnote 31), paragraph 29; Siemens and ARGE Telekom (cited in footnote 15), paragraph 44; and Case C-126/03 Commission v Germany (cited in footnote 64), paragraph 22. See for future cases also Article 48(3) of Directive 2004/18 where this case-law has now been codified. 71 – See my comments on the first, second and third questions above, points 41 to 105 of this Opinion. 72 – See above, points 35 to 37 of this Opinion. 73 – The reference to public supply and public works contracts must, since the extension of the scope of Directive 89/665 by Directive 92/50, be interpreted as relating to all public contracts including contracts for services. The fact that only Article 1(1) but not Article 1(3) of Directive 89/665 was amended accordingly seems to be attributable to a drafting oversight on the part of the Community legislature which was corrected for future cases by Directive 2007/66. 74 – Case C-410/01 Fritsch, Chiari & Partner and Others [2003] ECR I‑6413, paragraphs 31 and 34; Case C-470/99 Universale-Bau and Others [2002] ECR I‑11617, paragraph 72; and Case C‑230/02 Grossmann Air Service [2004] ECR I‑1829, paragraph 42. 75 – Case C-81/98 Alcatel Austria and Others [1999] ECR I-7671, paragraphs 33 and 34; Fritsch, Chiari & Partner andOthers (cited in footnote 74), paragraph 30; Universale-BauandOthers (cited in footnote 74), paragraph 74; and Grossmann Air Service (cited in footnote 74), paragraph 36. 76 – The mere fact that at the end of the review proceedings there may be no evidence of actual or potential damage does not in itself militate against the admissibility of the application for review; see in this connection Case C-249/01 Hackermüller [2003] ECR I‑6319, paragraph 27. 77 – Also known as a ‘negotiated contract’. 78 – See also the Bundesverfassungsgericht (German Federal Constitutional Court) Order of 29 July 2004 (2 BvR 2248/03, end of paragraph 36). 79 – Similarly, see the German Constitutional Court (cited in footnote 78), paragraphs 26 and 29. 80 – Similarly – albeit in relation to the award of compensation for damages – see the Opinion of Advocate General Geelhoed in GAT (cited in footnote 20), point 66. 81 – Universale-Bau and Others (cited in footnote 74), paragraph 71; on the concept of procedural autonomy, see Case C-201/02 Wells [2004] ECR I-723, paragraph 67, Case C‑212/04 Adeneler and Others [2006] ECR I-6057, paragraph 95, and Case C-1/06 Bonn Fleisch [2007] ECR I-5609, paragraph 41. 82 – Case 13/68 Salgoil [1968] ECR 453; Case 33/76 Rewe-Zentralfinanzand Rewe-Zentral [1976] ECR 1989, paragraph 5; Case C-312/93 Peterbroeck [1995] ECR I-4599, paragraph 12; Case C-432/05 Unibet [2007] ECR I-2271, paragraphs 39 and 43; and Joined Cases C‑222/05 to C-225/05 Van der Weerd and Others [2007] ECR I-4233, paragraph 28. 83 – See my Opinion in Case C-268/06 Impact [2008] ECR I-0000, paragraph 67; on the principle of equal treatment, see the settled case-law, not least Case C-300/04 Eman and Sevinger [2006] ECR I-8055, paragraph 57, Case C-303/05 Advocaten voor de Wereld [2007] ECR I-3633, paragraph 56, and Case C-227/04 P Lindorfer v Council [2007] ECR I-6767, paragraph 63. 84 – In this connection see also – albeit in relation to the refund of duties – Case C-231/96 Edis [1998] ECR I-4951, paragraph 37. 85 – Settled case-law; see Rewe-Zentralfinanz and Rewe- Zentral (cited in footnote 82), paragraph 5, Edis (cited in footnote 84), paragraphs 20 and 35, and Case C-30/02 Recheio – Cash & Carry [2004] ECR I-6051, paragraph 18; specifically on Directive 89/665, see further Universale-Bauand Others (cited in footnote 74), paragraph 76, Case C-327/00 Santex [2003] ECR I-1877, paragraph 50, and Case C-241/06 Lämmerzahl [2007] ECR I-0000, paragraph 50. 86 – See also Article 2(f)(1)(b) in conjunction with Article 2(d)(1) of Directive 89/665 in the version in Directive 2007/66. 87 – The significance of the specific structure and practical application of a rule on limitation periods is also emphasised in Lämmerzahl (cited in footnote 85), paragraphs 52, 56 and 61. 88 – Santex (cited in footnote 85), paragraphs 62 and 64, and Lämmerzahl (cited in footnote 85), paragraphs 62 and 63.