Opinion of the Advocate General — ECLI:EU:C:1998:161
Date: 1998-04-02
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: Austria

Summary of the Judgment 
1. Approximation of laws — Procedures for the award of public service contracts — Directive 
92/50 — Provision requiring Member States to establish review bodies — Failure to transpose 
— Consequences — Whether review bodies with jurisdiction to review procedures for the 
award of public supply and works contracts may hear appeals concerning procedures for the 
award of public service contracts — Not a necessary consequence — Obligation on the part of 
national courts to determine whether it is possible to appeal under domestic law 
(Council Directive 89/665, Arts 1(1) and (2) and 2(1) and Council Directive 92/50, Art. 41) 
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SUMMARY — CASE C-76/97 
2. Approximation of laws — Procedures for the award of public service contracts — Directive 
92/50 — Scope — Services for the transport of injured and sick persons with a nurse in atten­
dance — Included — Classification as Land transport services in Annex I A, Category No 2, 
and as Health and social services in Annex I B, Category No 25 
(Council Directive 92/50, Annexes I A and I B) 
3. Approximation of laws — Procedures for the award of public service contracts — Directive 
92/50 —Direct effect 
(Council Directive 92/50) 
4. Approximation of laws — Procedures for the award of public service contracts — Directive 
92/50 — Effects of the directive on existing legal situations concluded before expiry of the 
period for transposition — None 
(Council Directive 92/50) 
1. Neither Article 1(1) and (2), Article 2(1) 
nor any other provision of Directive 
89/665, on the coordination of the laws, 
regulations and administrative provisions 
relating to the application of review pro­
cedures to the award of public supply and 
public works contracts, may be interpreted 
as meaning that, if Directive 92/50 relating 
to the coordination of procedures for the 
award of public service contracts has not 
been transposed by the end of the period 
laid down for that purpose, the review 
bodies in the Member States with jurisdic­
tion to review procedures for the award of 
public supply contracts and public works 
contracts, established under Article 2(8) of 
Directive 89/665, may also hear appeals 
concerning procedures for the award of 
public service contracts. 
However, in order to observe the require­
ment that domestic law must be inter­
preted in conformity with Directive 92/50 
and the requirement that the rights of 
individuals must be protected effectively, 
the national court must determine whether 
the relevant provisions of its domestic law 
allow recognition of a right for individuals 
to bring an appeal in relation to awards of 
public service contracts. In that respect, 
the national court must determine in par­
ticular whether such a right of appeal may 
be exercised before the same bodies as 
those established to hear appeals con­
cerning the award of public supply con­
tracts and public works contracts. 
2. Services consisting in the transport of 
injured and sick persons with a nurse in 
attendance come within both Annex I A, 
Category N o 2, and Annex I B, Category 
N o 25, to Directive 92/50, so that a con­
tract for those services is covered by Article 
10 of Directive 92/50. 
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TÖGEL v NIEDERÖSTERREICHISCHE GEBIETSKRANKENKASSE 
Both Annex I A and Annex I B refer to 
the CPC nomenclature (common product 
classification) of the United Nations and 
those annexes clearly distinguish between 
transport and medical services delivered in 
the ambulance. The seventh recital in the 
preamble to Directive 92/50 clearly indi­
cates that the reference in those Annexes 
to that nomenclature is binding. CPC ref­
erence number 93, appearing in Category 
N o 25 (Health and social services) in Annex 
I B, clearly indicates that this category 
relates solely to the medical aspects of 
health services governed by a public con­
tract, to the exclusion of the transport 
aspects, which come under Category N o 2 
(Land transport services), which have the 
CPC reference number 712. 
3. The provisions of Titles I and II of Direc­
tive 92/50 may be relied on directly by 
individuals before national courts. As 
regards the provisions of Titles III to VI, 
these may also be relied on by an indi­
vidual before a national court if it is clear 
from an individual examination of their 
wording that they are unconditional and 
sufficiently clear and precise. 
The detailed provisions of Titles III to VI 
of the directive, on the choice of award 
procedures and the rules applicable to com­
petitions, common technical and adver­
tising rules, and participation and selec­
tion and award criteria, are, subject to 
exceptions and qualifications which are 
apparent from their terms, unconditional 
and sufficiently clear and precise to be 
relied on by service providers before 
national courts. 
4. Community law does not require an 
awarding authority in a Member State to 
intervene, at the request of an individual, 
in existing legal situations concluded for 
an indefinite period or for several years 
where those situations came into being 
before expiry of the period for transposi­
tion of Directive 92/50. 
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