Opinion of the Advocate General — ECLI:EU:C:2002:450
Date: 2002-07-11
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: Greece

Summary of the Judgment 
1. Approximation of laws — Procedures for the award of public works contracts — 
Directive 93/37 — Award of contracts — Groups of tenderers — National rules 
prohibiting a change in the composition of the group after submission of tenders — 
Whether permissible 
(Council Directive 93/37) 
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SUMMARY — CASE C-57/01 
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 — Groups of tenderers — Availability of 
review procedures 
(Council Directive 89/665) 
1. Directive 93/37 concerning the coor­
dination of procedures for the award of 
public works contracts does not pre­
clude national rules which prohibit a 
change in the composition of a con­
sortium taking part in a procedure for 
the award of a public works contract or 
a public works concession which 
occurs after submission of tenders. 
Rules about the composition of such 
consortia are a matter for the Member 
States, since Article 21 of the directive, 
the only provision dealing with groups 
of contractors, is confined, first, to 
stating that tenders may be submitted 
by such groups and, second, to pre­
venting them from being required to 
assume a specific legal form before the 
contract has been awarded to the group 
selected, and contains no provision 
about the composition of such groups. 
(see paras 60-61, 63, 
operative part 1) 
2. 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 coor­
dination of procedures for the award of 
public service contracts, requires 
Member States to take the measures 
necessary to ensure that, as regards 
contract award procedures falling 
within the scope of the relevant Com­
munity directives, decisions taken by 
the contracting authorities may be 
reviewed effectively and as rapidly as 
possible on the grounds that such 
decisions have infringed Community 
law in the field of public procurement 
or national rules implementing that 
law. 
Member States are also required, under 
Article 1(3), to ensure that the review 
procedures are available at least to any 
person having or having had an interest 
in obtaining a particular public supply 
or public works contract and who has 
been or risks being harmed by an 
alleged infringement. 
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MAKEDOMKO METRO AND MICHANIKI 
In that regard, a consortium must be 
able to avail itself of the review pro­
cedures provided for by Directive 
89/665, in so far as a decision of a 
contracting authority adversely affects 
the rights conferred on the consortium 
by Community law in the context of a 
procedure for the award of a public 
contract. 
(see paras 64-65, 73, 
operative part 2) 
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