Opinion of the Advocate General — ECLI:EU:C:2007:329
Date: 2007-06-07
Language of the case: German
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: Germany

Summary of the Judgment 1. Approximation of laws – Procedures for the award of public supply contracts – Directive 93/36 – Information to be contained in the contract notice (Council Directives 89/665, Art. 1(1), and 93/36, Art. 9(4) and Annex IV) 2. Approximation of laws – Review procedures in respect of the award of public supply and public works contracts – Directive 89/665 – Time-limit for challenging decisions by the contracting authorities and for complaining of irregularities (Council Directive 89/665, Art. 1(1) and (3)) 3. Approximation of laws – Review procedures in respect of the award of public supply and public works contracts – Directive 89/665 – Time-limit for challenging decisions by the contracting authorities and for complaining of irregularities (Council Directive 89/665, Art. 1(1) and (3)) 1. In accordance with Article 9(4) of and Annex IV to Directive 93/36 coordinating procedures for the award of public supply contracts, as amended by Directive 2001/78, the contract notice concerning a contract within the scope of that directive must state the total quantity or scope of that contract. The absence of such an indication must be capable of being reviewed under 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 coordination of procedures for the award of public service contracts. (see para. 44, operative part 1) 2. Directive 89/665, as amended by Directive 92/50, particularly Article 1(1) and (3) thereof, precludes a limitation period laid down by national law from being applied in such a way that a tenderer is refused access to a review concerning the choice of procedure for awarding a public contract or the estimate of the value of that contract, where the contracting authority has not clearly stated the total quantity or scope of the contract to the person concerned. A contract notice lacking any information as to the estimated value of the contract, followed by evasive conduct by the contracting authority in response to the questions of a potential tenderer must be considered, in view of the existence of a limitation period, as rendering excessively difficult the exercise by the tenderer concerned of the rights conferred on him by Community law. Even if a national limitation rule may in principle be considered to comply with Community law, its application to a tenderer in such circumstances does not satisfy the requirement of effectiveness under Directive 89/665. (see paras 55-57, 64, operative part 2) 3. Directive 89/665, as amended by Directive 92/50, particularly Article 1(1) and (3) thereof, precludes a limitation period laid down by national law for actions concerning the choice of procedure for awarding a public contract or the estimate of the value of that contract from being extended generally to cover the review of decisions of the contracting authority, including those occurring in stages of an award procedure after the end of that limitation period. To apply a rule fixing as the end of the limitation period the expiry of the period for bidding or for applying to participate, in such a way as to extend it to all decisions capable of being taken by the contracting authority throughout the procedure for the award of a public contract, makes it virtually impossible for the person concerned to exercise the rights accorded him by Community law in respect of the irregularities which can occur only after the expiry of the time-limit for submitting tenders, and is accordingly contrary to Directive 89/665. (see paras 45, 58, 60-61, 64, operative part 2)