Opinion of the Advocate General — ECLI:EU:C:2004:832
Date: 2004-12-16
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 Approximation of laws – Review procedures relating to the award of public supply and public works contracts – Directive 89/665 – Withdrawal of an invitation to tender – Member States under an obligation to provide for review procedures — Absence of such a procedure in national law — Not permissible — Direct effect of Articles 1(1) and 2(1)(b) of the directive — Obligations of the national courts (Council Directive 89/665, Arts 1(1) and 2(1)(b)) Articles 1(1) and 2(1)(b) of Directive 89/665 relating to 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 require the decision of the contracting authority to withdraw the invitation to tender for a public procurement contract to be open to a review procedure, and to be capable of being set aside where appropriate on the ground that it has infringed Community law on public procurement or national rules implementing that law. Consequently, where national law, even when it is interpreted in accordance with the requirements of Community law, does not make it possible for a tenderer to challenge a decision to withdraw an invitation to tender inasmuch as that decision infringes Community law and on that ground to apply for it to be set aside, that national law does not fulfil the requirements of Articles 1(1) and 2(1)(b) of Directive 89/665. In those circumstances, the court or tribunal having jurisdiction is required to disapply national rules which prevent compliance with the obligation arising from those provisions. Those provisions are unconditional and sufficiently clear to create rights for individuals on which they may rely, where necessary, against contracting authorities. (see paras 30-31, 38-39, operative part)