62001CJ0314_EN
Parties
Grounds
Decision on costs
Operative part
Parties
In Case C-314/01,
REFERENCE to the Court under Article 234 EC by the Bundesvergabeamt (Austria) for a preliminary ruling in the proceedings pending before that tribunal between
Siemens AG Österreich,
ARGE Telekom & Partner
and
Hauptverband der österreichischen Sozialversicherungsträger,
joined party:
Bietergemeinschaft EDS/ORGA,
on the interpretation of Council Directive 89/665/EEC of 21 December 1989 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 (OJ 1989 L 395, p. 33), as amended by Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1),
THE COURT (Sixth Chamber),
composed of: V. Skouris, acting for the President of the Sixth Chamber, C. Gulmann, J.-P. Puissochet, R. Schintgen (Rapporteur) and N. Colneric, Judges,
Advocate General: L.A. Geelhoed,
Registrar: M.-F. Contet, Principal Administrator,
after considering the written observations submitted on behalf of:
– ARGE Telekom & Partner, by M. Öhler, Rechtsanwalt,
– Hauptverband der österreichischen Sozialversicherungsträger, by G. Lansky, Rechtsanwalt,
– Bietergemeinschaft EDS/ORGA, by R. Regner, Rechtsanwalt,
– the Austrian Government, by M. Fruhmann, acting as Agent,
– the Commission of the European Communities, by M. Nolin, acting as Agent, assisted by R. Roniger, Rechtsanwalt,
having regard to the Report for the Hearing,
after hearing the oral observations of Hauptverband der österreichischen Sozialversicherungsträger, represented by T. Hamerl, Rechtsanwalt; of the Austrian Government, represented by M. Fruhmann; and the Commission, represented by M. Nolin, assisted by
R. Roniger, at the hearing on 18 September 2003,
after hearing the Opinion of the Advocate General at the sitting on
20 November 2003,
gives the following
Judgment
Grounds
1. By order of 11 July 2001, received at the Court on 9 August 2001, the Bundesvergabeamt (Austrian Federal Procurement Office) referred to the Court for a preliminary ruling under Article 234 EC four questions on the interpretation of Council Directive 89/665/EEC of 21 December 1989 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 (OJ 1989 L 395, p. 33), as amended by Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1) (‘Directive 89/665’).
2. Those questions have arisen in a dispute between the companies Siemens AG (‘Siemens’) and ARGE Telekom & Partner (‘ARGE Telekom’), on the one hand, and, on the other, the Hauptverband der österreichischen Sozialversicherungsträger (Central Association of Austrian Social Security Institutions) (‘the Hauptverband’), in its capacity as contracting authority, concerning an adjudication procedure for the award of a public supply and service contract.
Legal framework
Community law
3. Article 1(1) of Directive 89/665 provides:
‘The Member States shall take the measures necessary to ensure that, as regards contract award procedures falling within the scope of Directives 71/305/EEC, 77/62/EEC and 92/50/EEC, decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the provisions set out in the following articles and, in particular, Article 2(7), on the grounds that such decisions have infringed Community law in the field of public procurement or national rules implementing that law.’
4. Article 2 of Directive 89/665 sets out in this regard the obligations devolving on Member States.
Article 2(1), (6) and (7) provides:
‘1. The Member States shall ensure that the measures taken concerning the review procedures specified in Article 1 include provision for the powers to:
(a) take, at the earliest opportunity and by way of interlocutory procedures, interim measures with the aim of correcting the alleged infringement or preventing further damage to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a public contract or the implementation of any decision taken by the contracting authority;
(b) either set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discriminatory technical, economic or financial specifications in the invitation to tender, the contract documents or in any other document relating to the contract award procedure;
(c)
award damages to persons harmed by an infringement.
…
6. The effects of the exercise of the powers referred to in paragraph 1 on a contract concluded subsequent to its award shall be determined by national law.
Furthermore, except where a decision must be set aside prior to the award of damages, a Member State may provide that, after the conclusion of a contract following its award, the powers of the body responsible for the review procedures shall be limited to awarding damages to any person harmed by an infringement.
7. The Member States shall ensure that decisions taken by bodies responsible for review procedures can be effectively enforced.’
5. Directive 92/50 sets out common rules on participation in the procedure for the award of public service contracts.
These include the possibility of sub-contracting part of the contract to third parties.
Thus, Article 25 of Directive 92/50 provides:
‘In the contract documents, the contracting authority may ask the tenderer to indicate in his tender any share of the contract he may intend to subcontract to third parties.
This indication shall be without prejudice to the question of the principal service provider’s liability.’
6. Directive 92/50 also sets out qualitative selection criteria which make it possible to determine the candidates admitted to participate in the procedure for the award of a public service contract.
Article 32 of Directive 92/50 is worded as follows:
‘1. The ability of service providers to perform services may be evaluated in particular with regard to their skills, efficiency, experience and reliability.
2. Evidence of the service provider’s technical capability may be furnished by one or more of the following means according to the nature, quantity and purpose of the services to be provided:
…
(c) an indication of the technicians or technical bodies involved, whether or not belonging directly to the service provider, especially those responsible for quality control;
…
(h) an indication of the proportion of the contract which the service provider may intend to sub-contract.
3. The contracting authority shall specify, in the notice or in the invitation to tender, which references it wishes to receive.
…’
National legislation
7. Directives 89/665 and 92/50 were transposed in Austrian law by the Bundesgesetz über die Vergabe von Aufträgen (Bundesvergabegesetz) 1997 (1997 Federal Procurement Law), BGBl. I 1997/56, in the version published in BGBl. I 2000/125 (‘the BVergG’).
8. Paragraph 31 of the BVergG, relating to services to be performed by subcontracting undertakings, provides:
‘1. The documents relating to the invitation to tender shall specify whether subcontracting is permitted.
The subcontracting of the whole contract is not permitted except in the case of purchase agreements and subcontracting to undertakings associated with the contractor.
In the case of building contracts the subcontracting of the majority of the services constituting the object of the undertaking is not permitted. ...
The contracting authority shall ensure that the contractor’s subcontractors themselves perform the greater part of contracts subcontracted to them.
In exceptional cases the contracting authority may specify in the contract documents, stating its reasons, that it is permissible for the majority of the contract to be subcontracted.
Subcontracting parts of the contract is, moreover, permitted only if the subcontractor is qualified to perform his share of the work.
2. The contracting authority should ask the tenderer in the documents relating to the invitation to tender to indicate in his tender the proportion of the contract which he may intend to subcontract to third parties.
This information shall be without prejudice to the issue of the contractor’s liability.’
9. Paragraph 40(1) of the BVergG, which concerns the withdrawal of an invitation to tender, provides as follows:
‘During the tendering period the invitation to tender may be withdrawn for compelling reasons, especially if before the end of the tendering period circumstances become known which, had they been known earlier, would not have led to an invitation to tender or would have led to an invitation to tender essentially different in substance.’
10. Paragraph 52 et seq. of the BVergG deals with the examination of tenders.
Paragraph 52(1) provides:
‘Before the contracting authority proceeds to the selection of the tender qualifying for the award of the contract, it should immediately eliminate the following tenders on the basis of the results of the assessment:
…
(9) tenders received from applicants who, immorally or contrary to the principle of effective competition, have come to agreements with other applicants which are disadvantageous to the contracting authority;
...’.
11. Paragraph 113 of the BVergG sets out the powers of the Bundesvergabeamt. Paragraph 113(2) and (3) provides:
‘2. In order to preclude infringements of this Federal Law and of the regulations implementing it, the Bundesvergabeamt is authorised until the time of the award:
(1) to adopt interim measures and
(2) to set aside unlawful decisions of the contracting authority.
3. After the award of the contract or the close of the contract award procedure, the Bundesvergabeamt is competent to determine whether, on grounds of infringement of this Federal Law or of any regulations issued under it, the contract has not been awarded to the best tenderer. ...’
12. Under Paragraph 117(1) and (3) of the BVergG:
‘1. The Bundesvergabeamt shall set aside, by way of administrative decision, taking into account the opinion of the Conciliation Committee in the case, any decision of the contracting authority in an award procedure where the decision in question:
(1) is contrary to the provisions of this Federal Law or its implementing regulations and
(2) significantly affects the outcome of the award procedure.
...
3. After the award of the contract, the Bundesvergabeamt shall, in accordance with the conditions of subparagraph 1, determine only whether the alleged illegality exists or not.’
13. Under Paragraph 125(2) of the BVergG a claim for damages, which must be brought before the civil courts, is admissible only if there has been a prior determination by the Bundesvergabeamt under Paragraph 113(3) of the BVergG.
The civil court which is required to rule on such a claim for damages is bound by that determination, as are the parties to the proceedings before the Bundesvergabeamt.
14. Article 879(1) of the Allgemeines Bürgerliches Gesetzbuch (Austrian General Civil Code) provides:
‘A contract shall be null and void if it infringes a statutory prohibition or is contrary to acceptable moral values.’
The dispute in the main proceedings and the questions referred for preliminary ruling
15. On 21 September 1999 the Hauptverband announced in the supplement to the Official Journal of the European Communities
that it intended to initiate a two-stage contract award procedure for the award of a contract for the design, planning and implementation of a smart-card-based electronic data processing system, including the delivery, initialisation, personalisation, distribution and disposal of cards throughout Austria, delivery, installation and maintenance of sector terminals, support for a call-centre unit, card management and other services necessary for the operation of the system.
16. On 22 February 2000 the Hauptverband decided to invite five of the six groups of candidates which had taken part in the first phase of the procedure to submit tenders.
At the same time the Hauptverband decided to eliminate the sixth candidate.
Point 1.8 of the invitation to tender of 15 March 2000, which replicated Point 1.9 of the contract notice of 21 September 1999, stated:
‘A maximum of 30% of the services may be subcontracted, provided that the characteristic parts of the contract, namely, project management, system design, development, construction, delivery and management of the central components of the overall system specific to the project development, delivery and management of the life-cycle of the cards and development and delivery of the terminals remain with the tenderer or tender consortium’.
17. According to the order for reference, this clause, which stresses the personal responsibility of the card provider, was retained in order to guarantee proper technical performance of the contract.
18. Three of the four tender consortia which submitted tenders, namely, Siemens, ARGE Telekom and Debis Systemhaus Österreich GmbH (‘Debis’), included the card provider Austria Card, Plastikkard und Ausweissysteme GmbH (‘Austria Card’), which was to be responsible for supplying the cards.
The fourth consortium, to which Austria Card did not belong, was Bietergemeinschaft EDS/ORGA (‘EDS/ORGA’); which consisted of the undertakings Electronic Data Systems (EDS Austria) GmbH, Electronic Data Systems (EDS Deutschland) GmbH and ORGA Kartensysteme GmbH.
19. By letter of 18 December 2000, the first three tender consortia were informed that the Hauptverband was minded to award the contract to EDS/ORGA.
20. After having unsuccessfully attempted to have arbitration proceedings instituted before the Bundesvergabekontrollkommission (Federal Procurement Review Commission), the three unsuccessful consortia lodged review applications with the Bundesvergabeamt in which they sought, principally, annulment of the decision of the Hauptverband to award the contract to EDS/ORGA and, in the alternative, cancellation of the invitation to tender.
21. By decision of 19 March 2001, the Bundesvergabeamt dismissed all of the review applications brought before it as being inadmissible on the ground of lack of locus standi
and interest in bringing proceedings inasmuch as the applicants’ tenders ought in any event to have been eliminated by the Hauptverband pursuant to Paragraph 52(1) of the BVergG on the ground that Austria Card’s membership of the three tender consortia in question was liable to distort free competition by reason of the exchange of information and negotiations on the terms of the tenders which such threefold membership made possible.
22. It appears from the case-file that this decision of the Bundesvergabeamt was annulled by judgment of the Verfassungsgerichtshof (Austrian Constitutional Court) of 12 June 2001 on the ground that the constitutional rights of the three consortia in question to have their case properly adjudged before a judicial body had been infringed inasmuch as the Bundesvergabeamt had, prior to taking its decision, failed to refer the matter to the Court of Justice for a preliminary ruling.
23. On 28 and 29 March 2001, Debis and ARGE Telekom lodged a second series of review applications before the Bundesvergabeamt in which they sought, inter alia, annulment of the Hauptverband’s decision refusing to cancel the invitation to tender and, by way of interim measure, a prohibition on awarding the contract during a period of two months calculated from the instigation of proceedings, in the case of the application brought by Debis, or until such time as the Bundesvergabeamt had reached its decision in the main proceedings, in regard to the application brought by ARGE Telekom.
24. By decision of 5 April 2001, the Bundesvergabeamt, ruling on the applications for interim measures, prohibited the Hauptverband from awarding the contract until 20 April 2001.
25. By decision of 20 April 2001, the Bundesvergabeamt upheld the principal applications of Debis and ARGE Telekom and, pursuant to Paragraph 113(2)(2) of the BVergG, annulled the decision of the Hauptverband not to cancel the invitation to tender.
As the essential grounds for its decision, it stated that the invitation to tender included an unlawful selection criterion inasmuch as the prohibition of subcontracting set out in Point 1.8 of the invitation to tender infringed the subcontractor’s right, derived from Community legislation as interpreted by the Court (see, inter alia, Case C-176/98 Holst Italia
[1999] ECR I‑8607), also to have recourse to a subcontractor in order to justify its capacity to perform the contract in question.
In the present case, if the invitation to tender had not laid down this condition, the consortia which had been eliminated could have had recourse to a subcontractor for the supply of the cards.
26. Notwithstanding that decision, the Hauptverband decided, on 23 April 2001, to award the contract to EDS/ORGA.
As it took the view that the effects of the interim measure adopted on 5 April 2001 by the Bundsvergabeamt had expired on 20 April 2001 without being extended and that the Bundesvergabeamt’s decision of 20 April 2001 contained no more than a statement on ‘setting aside the failure to cancel’ which was difficult to understand, the Hauptverband took the view that no legally binding decision had been taken that its own decision to award the contract to the tender consortium which had submitted the lowest tender was invalid or ought to have been annulled.
27. The Hauptverband also decided to bring proceedings before the Verfassungsgerichtshof for annulment of the decision taken by the Bundesvergabeamt on 20 April 2001.
According to the case-file forwarded by the Bundesvergabeamt and the observations lodged with the Court, the Verfassungsgerichtshof initially rejected, by order of 22 May 2001, the request by the Hauptverband that its application be recognised as having the effect of suspending operation of that decision, on the ground that the disputed contract had in any event already been awarded, and, subsequently, by judgment of 2 March 2002, the Verfassungsgerichtshof annulled that decision on the ground that it was logically impossible to annul a decision requiring something not to be done and that the proceedings brought by Debis and ARGE Telekom to secure that end ought to have been declared inadmissible.
28. On 30 April 2001, Siemens brought a fresh application before the Bundesvergabeamt by which it sought the annulment of several decisions taken by the Hauptverband after its decision to award the contract to EDS/ORGA.
Siemens essentially argued in these proceedings that the annulment by the Bundesvergabeamt of the decision by the contracting authority not to annul the contract award procedure rendered unlawful the Hauptverband’s decision to award the contract because it took place within the context of a second award procedure which had not been publicised in the requisite manner.
29. On 17 May 2001 ARGE Telekom also applied for annulment of 11 decisions taken by the Hauptverband after the latter had decided not to annul the disputed award procedure notwithstanding the decision of the Bundesvergabeamt of 20 April 2001.
30. As it took the view that resolution of this third series of disputes required an interpretation of several provisions of Directive 89/665, the Bundesvergabeamt decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:
(1) Is … Directive 89/665 …, and in particular Article 2(1)(b) thereof, if necessary in conjunction with Article 2(7) thereof, to be interpreted as meaning that the legal effect of a decision taken by a national review body within the meaning of Article 2(8) of Directive 89/665 relating to the setting aside of a contracting authority’s decision not to cancel a contract award procedure is that if national law does not provide any basis for the effective and compulsory enforcement of the review body’s decision against the contracting authority, the contract award procedure is automatically terminated by the national review body’s decision, without the need for any further act by the contracting authority?
(2) Is Directive 89/665, in particular Article 2(7) thereof, if necessary in conjunction with … Directive 92/50…, in particular Articles 25 and 32(2)(c) thereof, or any other provisions of Community law, in particular having regard to the effet utile
doctrine relating to the interpretation of Community law, to be construed as meaning that a provision in an invitation to tender which prohibits subcontracting material parts of the service concerned and, contrary to the case-law of the Court of Justice, in particular Case C-176/98 Holst Italia
[1999] ECR I-8607, prevents the tenderer from using his contract with his subcontractor to prove that the services of a third party are actually available to him and which thus deprives him of his right to prove his own capability by relying on the services of a third party or to prove that he actually has available a third party’s services, is so clearly contrary to Community law that a contract concluded on the basis of such an invitation to tender is to be regarded as invalid, in particular where national law in any case provides that illegal contracts are invalid?
(3) Is Directive 89/665, in particular Article 2(7) thereof, or any other provision of Community law, in particular having regard to the effet utile
doctrine relating to the interpretation of Community law, to be construed as meaning that a contract concluded contrary to a decision by a national review body within the meaning of Article 2(8) of Directive 89/665 relating to the setting aside of a contracting authority’s decision not to cancel a contract award procedure is invalid, in particular where national law in any case provides that immoral or illegal contracts are void but does not provide any basis for the effective and compulsory enforcement of the review body’s decision against the contracting authority?
(4a) Is Directive 89/665, in particular Article 2(1)(b) thereof, if necessary in conjunction with Article 2(7), to be interpreted as meaning that where national law does not otherwise provide any basis for the effective and compulsory enforcement of the review body’s decision against the contracting authority, the review body has, by virtue of the direct application of Article 2(1)(b) in conjunction with Article 2(7), the power to issue a compulsory, enforceable order to the contracting authority to ensure that the unlawful decision is set aside, even though national law authorises the review body to issue only non-compulsory, non-enforceable orders to set aside contracting authorities’ decisions in tenderers’ applications for review within the meaning of Article 1(1) of Directive 89/665?
(4b) If Question 4a is answered in the affirmative: does Article 2(7) of Directive 89/665, if necessary in conjunction with other provisions of Community law, give the review body the power in such a case to threaten contracting authorities and the members of their executive organs with, and to impose on them, such fines or fines and imprisonment by way of coercive penalties as are necessary to enforce their orders and are calculated in accordance with judicial discretion, where the contracting authorities and the members of their executive organs do not comply with the orders issued by the review body?’
The admissibility of the reference for a preliminary ruling
31. It is clear from all of the questions submitted by the Bundesvergabeamt that the latter is unsure as to the compatibility with Directive 89/665 of the procedural rules contained in the Austrian legislation governing public contracts inasmuch as those rules are not adequate effectively to guarantee implementation of the decisions taken by the body responsible for review proceedings as, in the case in the main proceedings, notwithstanding the decision of the Bundesvergabeamt of 20 April 2001 setting aside the Hauptverband’s decision not to annul the call for tenders, the contract in dispute was none the less awarded to EDS/ORGA.
32. It is common ground that the Verfassungsgerichtshof, by judgment of 2 March 2002, annulled the decision of 20 April 2001 taken by the Bundesvergabeamt.
33. According to settled case-law in this regard, the procedure provided for by Article 234 EC is an instrument of cooperation between the Court of Justice and national courts (see,
inter alia, Case C-343/90 Lourenço Dias
[1992] ECR I-4673, paragraph 14, and Case C-112/00 Schmidberger
[2003] ECR I‑5659, paragraph 30, and the case-law cited therein).
34. In the context of that cooperation, it is for the national court or tribunal seised of the dispute, which alone has direct knowledge of the facts giving rise to the dispute and must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, inter alia, Lourenço Dias, cited above, paragraph 15, Case C‑390/99 Canal Satélite Digital
[2002] ECR I‑607, paragraph 18, and Schmidberger, cited above, paragraph 31).
35. The fact none the less remains that it is for the Court, if need be, to examine the circumstances in which the case was referred to it by the national court or tribunal, in order to assess whether it has jurisdiction and in particular to determine whether the interpretation of Community law which is requested bears any relation to the actual nature and subject-matter of the main proceedings, in order that the Court will not be required to give opinions on general or hypothetical questions.
If it should appear that the question raised is manifestly irrelevant for the purposes of deciding the case, the Court must declare that there is no need to proceed to judgment (Case 244/80 Foglia
[1981] ECR 3045, paragraph 21; Lourenço Dias, paragraph 20; Canal Satélite Digital, cited above, paragraph 19; and judgment of 30 September 2003 in Case C‑167/01 Inspire Art
[2003] ECR I‑0000, paragraphs 44 and 45).
36. In the light of the foregoing, it is appropriate to examine whether the questions referred by the Bundesvergabeamt have remained relevant for the resolution of the disputes in the main proceedings, even though the Verfassungsgerichtshof annulled the Bundesvergabeamt’s decision of 20 April 2001.
37. In this regard, it is clear from the order for reference that it is the fact that this decision of 20 April 2001 was not mandatorily enforceable in Austrian law that provided the essential grounds for the present request for a preliminary ruling, with the result that, since the annulment of that decision, those questions have become purely hypothetical, as is, moreover, emphasised by the Verfassungsgerichtshof in its judgment of 2 March 2002.
38. It must, however, be acknowledged that the possibility cannot be discounted that a reply to the second question, which incidentally concerns the scope of the Holst Italia
judgment, will have a bearing on the resolution of the disputes in the main proceedings, particularly in the event that those disputes, following a finding that the award procedure followed by the Bundesvergabeamt pursuant to Paragraph 113(3) of the BVergG, was unlawful, were to be continued before the civil courts, which, under Austrian legislation, are the courts having jurisdiction to rule on a claim for compensation following the award of a contract.
39. In the light of the foregoing, the first, third and fourth questions need not be answered and the Court’s reply should be confined to the second question.
The second question
40. By this question, the Bundesvergabeamt is seeking essentially to ascertain whether Article 2(7) of Directive 89/665, read in conjunction with Articles 25 and 32(2)(c) of Directive 92/50, must be construed as meaning that a contract concluded at the end of the procedure for the award of a public supply and service contract, the proper conduct of which is affected by the incompatibility with Community law of a provision in the invitation to tender, must be treated as void if the applicable national law declares contracts that are illegal to be void.
41. This question is based on the premiss that a provision in an invitation to tender which prohibits recourse to subcontracting for material parts of the contract is contrary to Directive 92/50, as interpreted by the Court in Holst Italia .
42. It must be borne in mind in this regard that Directive 92/50, which is designed to eliminate obstacles to the freedom to provide services in the award of public service contracts, expressly envisages, in Article 25, the possibility for a tenderer to subcontract a part of the contract to third parties, as that provision states that the contracting authority may ask that tenderer to indicate in its tender any share of the contract which it may intend to subcontract.
Furthermore, with regard to the qualitative selection criteria, Article 32(2)(c) and (h) of Directive 92/50 makes express provision for the possibility of providing evidence of the technical capacity of the service provider by means of an indication of the technicians or technical bodies involved, whether or not belonging directly to the undertaking of that service provider, and which the latter will have available to it, or by indicating the proportion of the contract which the service provider may intend to subcontract.
43. As the Court ruled in paragraphs 26 and 27 of Holst Italia, it follows from the object and wording of those provisions that a party cannot be eliminated from a procedure for the award of a public service contract solely on the ground that that party proposes, in order to carry out the contract, to use resources which are not its own but belong to one or more other entities.
This means that it is permissible for a service provider which does not itself fulfil the minimum conditions required for participation in the procedure for the award of a public service contract to rely, vis-à-vis the contracting authority, on the standing of third parties upon whose resources it proposes to draw if it is awarded the contract.
44. However, according to the Court, the onus rests on a service provider which relies on the resources of entities or undertakings with which it is directly or indirectly linked, with a view to being admitted to participate in a tendering procedure, to establish that it actually has available to it the resources of those entities or undertakings which it does not itself own and which are necessary for the performance of the contract ( Holst Italia, paragraph 29).
45. As the Commission of the European Communities has correctly pointed out, Directive 92/50 does not preclude a prohibition or a restriction on the use of subcontracting for the performance of essential parts of the contract precisely in the case where the contracting authority has not been in a position to verify the technical and economic capacities of the subcontractors when examining the tenders and selecting the lowest tenderer.
46. It follows that the premiss on which the second question is based would prove to be accurate only if it were to be established that Point 1.8 of the invitation to tender prohibits, during the phase of the examination of the tenders and the selection of the successful tenderer, any recourse by the latter to subcontracting for the provision of essential services under the contract.
A tenderer claiming to have at its disposal the technical and economic capacities of third parties on which it intends to rely if the contract is awarded to it may be excluded only if it fails to demonstrate that those capacities are in fact available to it.
47. Point 1.8 of the invitation to tender does not appear to relate to the examination and selection phase of the procedure for award of the contract, but rather to the phase of performance of that contract and is designed precisely to avoid a situation in which the performance of essential parts of the contract is entrusted to bodies whose technical and economic capacities the contracting authority was unable to verify at the time when it selected the successful tenderer.
It is for the Bundesvergabeamt to establish whether that is indeed the case.
48. If it were to transpire that a clause in the invitation to tender is in fact contrary to Directive 92/50, in particular inasmuch as it unlawfully prohibits recourse to subcontracting, it would then be sufficient to point out that, under Articles 1(1) and 2(7) of Directive 89/665, Member States are required to take the measures necessary to ensure that decisions taken by the contracting authorities may be reviewed effectively and as rapidly as possible in the case where those decisions may have infringed Community law in the area of public procurement.
49. It follows that, in the case where a clause in the invitation to tender is incompatible with Community rules on public contracts, the national legal system of the Member State must provide for the possibility of relying on that incompatibility in the review procedures referred to in Directive 89/665.
50. The answer to the second question must therefore be that Directive 89/665, and in particular Articles 1(1) and 2(7) thereof, must be construed as meaning that, in the case where a clause in an invitation to tender is incompatible with Community rules on public contracts, the national legal systems of the Member States must provide for the possibility of relying on that incompatibility in the review procedures referred to in Directive 89/665.
Decision on costs
Costs
51. The costs incurred by the Austrian Government and by the Commission, which have submitted observations to the Court, are not recoverable.
Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national tribunal, the decision on costs is a matter for that tribunal.
Operative part
On those grounds,
THE COURT (Sixth Chamber),
in answer to the questions referred to it by the Bundesvergabeamt by order of 11 July 2001, hereby rules:
Council Directive 89/665/EEC of 21 December 1989 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 Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, and in particular Articles 1(1) and 2(7) thereof, must be construed as meaning that, in the case where a clause in an invitation to tender is incompatible with Community rules on public contracts, the national legal systems of the Member States must provide for the possibility of relying on that incompatibility in the review procedures referred to in Directive 89/665.