62001CC0315_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I ─ Introduction
1.
This request for a preliminary ruling from the Austrian Bundesvergabeamt (Federal Procurement Office) concerns the interpretation of certain articles of Directive 89/665/EEC
(2) and Directive 93/36/EEC.
(3) More specifically, it concerns the question whether in proceedings concerning the award of public contracts the review body may take into account, of its own volition and independently of the submissions of the parties, facts and circumstances which it considers to be relevant to the assessment of the lawfulness of the contract award procedure. The requesting court also wishes to know whether a decision taken by the review body of its own volition in this way can have implications for the applicant's standing to submit a claim for damages because of irregularities in the award of the contract. Questions are also asked about the admissibility of a number of criteria applied during the contract award procedure in the main proceedings.
II ─ Legislative background
A ─
Community law
2.
Article 1(1) of Directive 89/665 as amended by Article 41 of Directive 92/50 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 conditions 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."
3.
Article 2(1), (6) and (8) of Directive 89/665 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:
...
(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.
...
8.
Where bodies responsible for review procedures are not judicial in character, written reasons for their decisions shall always be given. Furthermore, in such a case, provision must be made to guarantee procedures whereby any allegedly illegal measure taken by the review body or any alleged defect in the exercise of the powers conferred on it can be the subject of judicial review or review by another body which is a court or tribunal within the meaning of Article 177 of the EEC Treaty [now Article 234 EC] and independent of both the contracting authority and the review body.
The members of such an independent body shall be appointed and leave office under the same conditions as members of the judiciary as regards the authority responsible for their appointment, their period of office, and their removal. At least the President of this independent body shall have the same legal and professional qualifications as members of the judiciary. The independent body shall take its decisions following a procedure in which both sides are heard, and these decisions shall, by means determined by each Member State, be legally binding.
"
4.
Article 15(1) of Directive 93/36, which forms part of Chapter 1 (Common rules on participation) of Title IV, provides:
"Contracts shall be awarded on the basis for the criteria laid down in Chapter 3 of this Title, taking into account Article 16, after the suitability of the suppliers not excluded under Article 20 has been checked by the contracting authorities in accordance with the criteria of economic and financial standing and of technical capacity referred to in Articles 22, 23 and 24."
5.
Article 23(1) of Directive 93/36, which forms part of Chapter 2 (Criteria for qualitative selection) of Title IV, provides:
"Evidence of the supplier's technical capacity may be furnished by one or more of the following means according to the nature, quantity and purpose of the products to be supplied:
(a)
a list of the principal deliveries effected in the past three years, with the sums, dates and recipients, public or private, involved:
─
where effected to public authorities, evidence to be in the form of certificates issued or countersigned by the competent authority;
─
where effected to private purchasers, delivery to be certified by the purchaser or, failing this, simply declared by the supplier to have been effected;
...
(d)
samples, descriptions and/or photographs of the products to be supplied, the authenticity of which must be certified if the contracting authority so requests;
...
"
6.
Article 26(1) of Directive 93/36, which forms part of Chapter 3 (Criteria for the award of contracts) of Title IV, provides:
"The criteria on which the contracting authority shall base the award of contracts shall be:
(a)
either the lowest price only;
(b)
or, when award is made to the most economically advantageous tender, various criteria according to the contract in question: eg price, delivery date, running costs, cost-effectiveness, quality, aesthetic and functional characteristics, technical merit, after-sales service and technical assistance.
"
B ─
National law
7.
Both Directive 93/36 and Directive 89/665 were transposed into Austrian law by the Bundesvergabegesetz
(4) (Federal Procurement Law; hereinafter
"BVergG"
).
8.
Paragraph 113 of this law provides:
"1. The Bundesvergabeamt is responsible on application for carrying out a review procedure in accordance with the following provisions.
2. 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.
...
"
9.
Paragraph 115(1) and (5) provides:
"1. Where an undertaking claims to have an interest in the conclusion of a contract within the scope of this Federal Law, it may apply for the contracting authority's decision in the contract award procedure to be reviewed on the ground of unlawfulness, provided that it has been or risks being harmed by the alleged infringement.
...
5.
The application shall contain:
(1)
an exact designation of the contract award procedure concerned and of the contested decision,
...
"
10.
Pursuant to Paragraph II(2), C, point 40a, of the Einführungsgesetz zu den Verwaltungsverfahrensgesetzen (Introductory Law to the Laws on Administrative Procedure) 1991, the Allgemeines Verwaltungsverfahrensgesetz (General Law on Administrative Procedure; hereinafter
"AVG"
) 1991 applies to the administrative procedure adopted by the Bundesvergabeamt.
11.
Paragraph 39(1) and (2) of the Allgemeines Verwaltungsverfahrengesetz 1991 provides:
"1.
The evaluation procedure shall be governed by the provisions of administrative law.
2.
In so far as the administrative provisions do not cover a matter, the authority shall proceed
ex proprio motu
and shall determine the procedure for the evaluation subject to the provisions contained in this Part.
...
"
III ─ Facts of the main action and proceedings
12.
On 2 March 2000 the Autobahnmeisterei (Motorway Authority) for St Michael/Lungau issued an invitation to tender on behalf of Österreichische Autobahnen- und Schnellstraßen-Aktiengesellschaft (ÖSAG), as the issuing authority, for the supply of a
"special motor vehicle: new, ready-to-use and officially approved road sweeper for the A9 Phyrn motorway, delivery to the Motorway Authority for Kalwang"
in an open European procedure.
13.
The tender period opened on 25 April 2000. The applicant in the main action, GAT Gesellschaft für Abfallentsorgungs-Technik GmbH (hereinafter
"GAT"
), submitted a tender as general agent for Austria of the German manufacturer Bucher-Schörling at a price of ATS 3 547 020 excluding value added tax, and there were four other tenderers. The tender submitted by the firm ÖAF
& Steyr was ATS 4 174 290 net, while that of another tenderer came to ATS 4 168 690, excluding value added tax.
14.
Point B.1.13 of the conditions in the invitation to tender, entitled
"Tender Evaluation"
, provided:
"B.1.13 Tender Evaluation
The determination of which tender is technically and economically the most advantageous shall be made in accordance with the best tenderer principle. It is a fundamental condition that the vehicles tendered satisfy the conditions in the invitation to tender.
The evaluation shall be carried out as follows:
Tenders shall be evaluated in each case by reference to the best tenderer and points shall be calculated relative to the best tenderer.
...
(2)
Other criteria
A maximum of 100 points shall be awarded for other criteria, and shall count for 20% of the overall evaluation.
2.1.
Reference list of road sweeper vehicle customers in the geographical area comprising the part of the Alps within the European Union (references to be provided in German): weighting 20 points
Evaluation formula:
The highest number of customers divided by the next highest number and multiplied by 20 points.
"
15.
On 16 May 2000 the contracting authority eliminated GAT's tender on the ground that that tender did not comply with the conditions in the invitation to tender inasmuch as the pavement cleaning machine tendered could be operated only down to temperatures of 0°C, whereas the invitation to tender had required a minimum operating temperature of -5°C. In addition, despite a request by the contracting authority, the applicant had not arranged for the machine to be inspected within a 300 kilometre radius of the authority issuing the invitation to tender, as required therein. Furthermore, the contracting authority doubted that the price in the applicant's tender was plausible. In addition, despite a request by the contracting authority, the applicant had not provided a sufficient explanation of the technical specifications concerning cleaning of the reflectors of the machine it had tendered.
16.
In accordance with the award proposal of 31 July 2000, ÖAF
& Steyr Nutzfahrzeuge OHG was awarded the contract by letter of 23 August 2000. By letters of 12 July 2000, the other tenderers were notified that a decision had been taken regarding the recipient of the award. GAT was informed by letter of 17 July 2000 that its tender had been eliminated, and by letter of 5 October 2000 it was notified of the identity of the recipient of the award and the contract price.
17.
On 17 November 2000 the applicant applied for a declaration that the award in the contract award procedure had not been made to the best tenderer and argued that its tender had been eliminated unlawfully. The technical description included in its tender of the reflector cleaning had been sufficient for an expert. In addition, the contracting authority had been invited to inspect the factory of the applicant's supplier. GAT also contended that the award condition imposed by the contracting authority consisting of
"the opportunity to inspect the subject of the invitation to tender within a 300 kilometre radius of the authority issuing the invitation to tender"
contravened Community law because it constituted indirect discrimination. The contracting authority was required to accept any products within Europe that could be used as a reference. In addition, that criterion could be used only as an award criterion and not as a selection criterion, which was how the contracting authority had subsequently wrongly used it. It also pointed out that, although it was true that the basic version of the road sweeper it had tendered could be used only at temperatures down to 0°C, the contracting authority had reserved the right to purchase an additional option. The additional option tendered by the applicant would operate at -5°C, as required in the invitation to tender. Finally, its tender was not at an implausible price. The applicant had been able to give an adequate explanation of its low price to the contracting authority.
IV ─ Questions submitted for a preliminary ruling
18.
As the Bundesvergabeamt considers a ruling by the Court to be necessary,
by order of 11 July 2001, the Bundesvergabeamt referred the following questions to the Court for a preliminary ruling:
"1a.
Is Article 2(8) of Council Directive 89/665/EEC 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, or any other provision of that directive or any other provision of Community law to be interpreted as meaning that an authority responsible for carrying out review procedures within the meaning of Article 1(1) of that directive, including the exercise of the powers referred to in Article 2(1)(c) thereof, is precluded from taking into account, of its own motion and independently of the submissions of the parties to the review procedure, those circumstances relevant under the law governing contract award procedures which the authority responsible for carrying out review procedures considers material to its decision in a review procedure?
1b.
Is Article 2(1)(c) of Directive 89/665/EEC, if necessary considered in conjunction with other principles of Community law, to be interpreted as meaning that an authority responsible for carrying out review procedures within the meaning of Article 1(1) of that directive, including the exercise of the powers referred to in Article 2(1)(c) thereof, is precluded from dismissing an application by a tenderer that is indirectly aimed at obtaining damages, where the contract award procedure is already tainted by a material legal infringement attributable to a decision taken by the contracting authority, other than the decision being contested by that tenderer, on the ground that if the contested decision had not been taken the tenderer would none the less have been harmed for other reasons?
2.
If Question 1a is answered in the negative: Is Directive 93/36/EEC coordinating procedures for the award of public supply contracts, in particular Articles 15 to 26 thereof, to be interpreted as prohibiting a public contracting authority conducting contract award procedures from taking account of references relating to the products offered by tenderers not as proof of the tenderers' suitability but to satisfy an award criterion, such that the fact that those references are given a negative evaluation would not exclude the tenderer from the contract award procedure but would merely result in the tender receiving a lower evaluation, for example under a points system in which poor evaluation of references might be offset by a lower price?
3.
If Questions 1a and 2 are answered in the negative: Is it compatible with the relevant provisions of Community law, including Article 26 of Directive 93/36/EEC, the principle of equal treatment and the obligations of the Communities under international law for an award criterion to provide that product references are to be evaluated on the basis of the number of references alone, there being no substantive examination as to whether contracting authorities' experiences of the product have been good or bad, and, moreover, that only references from the geographical area comprising the part of the Alps within the European Union are to be taken into account?
4.
Is it compatible with Community law, in particular the principle of equal treatment, for an award criterion to permit opportunities to inspect examples of the subject of the invitation to tender to receive a positive evaluation only if available within a 300 kilometre radius of the authority issuing the invitation to tender?
5.
If Question 2 is answered in the affirmative, or Question 3 or 4 in the negative: Is Article 2(1)(c) of Directive 89/665/EEC, if necessary considered in conjunction with other principles of Community law, to be interpreted as meaning that if the contracting authority's infringement consists in imposing an unlawful award criterion, the tenderer will be entitled to damages only if he can actually prove that, but for the unlawful award criterion, he would have submitted the best tender?
"
V ─ Assessment
19.
In this procedure written observations have been submitted to the Court by GAT, the Austrian Government and the Commission. Both the Commission and the Austrian Government have disputed the admissibility of the questions. This is the first aspect to be considered below.
A ─
Jurisdiction of the Bundesvergabeamt to submit questions for a preliminary ruling
20.
The Commission raises the question whether the questions are admissible, since the decisions of the Bundesvergabeamt have no legal force. It refers to the comments it has made in Case C-314/00
Siemens and Arge
, which is pending before the Court. In that case the Commission observes that, although the Bundesvergabeamt satisfies the criteria of a court or tribunal within the meaning of Article 234 EC, as defined by the Court in its case-law, it doubts that the Bundesvergabeamt's rulings have any legal force. In this connection it refers to the case-law in which the Court has ruled that a national court may refer a question to the Court only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature. In particular, the Commission refers to Cases C-134/97
Victoria Film A/S (5) and C-178/99
Salzmann
.
(6) The Commission doubts that the rulings have legal force because the referring court in Case C-314/00 pointed out that the order made by the Bundesvergabeamt did not constitute an enforceable order to the contracting authority within the meaning of Paragraph 113(2), subparagraph 2, BVergG. In these circumstances the Commission does not exclude the possibility that the decisions of the Bundesvergabeamt are not of a judicial nature.
B ─
Admissibility of the questions submitted for a preliminary ruling
21.
The Austrian Government takes the view that Questions 1a and 5 are inadmissible. It believes that it can be inferred from the order of reference that these questions were raised in a procedure based on Paragraph 113(3) BVergG. According to the Austrian Government, this procedure is not a review procedure within the meaning of Directive 89/665 but an assessment procedure. In this connection the Austrian Government explains that the legislature had exercised the option offered by the second sentence of Article 2(6) of Directive 89/665 to stipulate that, after the conclusion of a contract following its award, only damages could be claimed. The Austrian Government explains that the Bundesvergabeamt is competent to conduct review procedures within the meaning of the directive. However, it had not been granted the powers referred to in Article 2(1)(c) of Directive 89/665. On the basis of Paragraph 113(3) the Bundesvergabeamt must confine itself, after the conclusion of the contract, to determining whether or not procurement law has been infringed (for a similar provision see Paragraph 117(3) BVergG). This task was assigned to the Bundesvergabeamt to simplify procedures. For one thing, the Bundesvergabeamt, being the competent authority in the field of public contracts, is best suited to this task. In addition, possible divergences in the administration of justice, unnecessary legal costs and lengthy legal proceedings can be avoided in this way. For the award of damages, however, a civil court is the competent body. The assessment procedure before the Bundesvergabeamt should precede any action for damages in a civil court, because the claim would otherwise be inadmissible pursuant to Paragraph 125(2) BVergG. This provision also stipulates that the parties and the civil courts are bound by the Bundesvergabeamt's assessment. According to the Austrian Government, it follows from the foregoing that the assessment procedure is not a procedure within the meaning of Directive 89/665 and that answers to Questions 1a and 5 are not therefore needed for a ruling in the main action.
C ─
Opinion
22.
The Commission does not deny that the Bundesvergabeamt meets the criteria of a court or tribunal developed by the Court in previous case-law. However, it raises the question whether the decisions of the Bundesvergabeamt lead to a decision of a judicial nature. The Austrian Government, on the other hand, limits the plea of inadmissibility to two of the questions submitted, Questions 1a and 5. It believes that the Bundesvergabeamt does not need answers to these questions to be able to reach a decision. Those questions concerned, after all, matters which did not fall within the responsibilities of this body.
23.
In the following I will first consider the plea entered by the Commission. I can be brief in this respect. There is no disputing that a court or tribunal within the meaning of Article 234 EC is involved here. The Court has already accepted this (implicitly) on several occasions.
(7) The question whether the decisions of the Bundesvergabeamt are often also of a judicial nature was recently considered in the Opinion delivered by Advocate General Mischo in
Felix Swoboda
.
(8) He rightly says that a body may indeed issue decisions of a judicial nature even if it does not have the power to issue enforceable judicial directions. To illustrate this, he points out that the Court itself does not have such power, except in interlocutory proceedings. I agree with this view. As observed in that Opinion, although the Bundesvergabeamt does not have the capacity to issue enforceable directions to the contracting authorities, it has the power to annul their decisions and the measures it takes in this respect are binding. The case in which Advocate General Mischo delivered his Opinion similarly concerned a situation in which the Bundesvergabeamt was no longer able to set aside the decision of the contracting authority because the contract had already been concluded and under Austrian law the only course of action then remaining was to claim damages. In that situation the Bundesvergabeamt is left, pursuant to Paragraph 113(3) BVergG, with the power to determine whether the contract has been awarded to the best tenderer. A decision of this kind is not unimportant. Firstly, it is evident from Paragraph 125(2) BVergG that such a procedure before the Bundesvergabeamt is necessary since a subsequent action for damages in a civil court would otherwise be inadmissible. Secondly, the parties and the civil court are bound by the opinion of the Bundesvergabeamt. I therefore agree with Advocate General Mischo's conclusion that the Bundesvergabeamt, being a judicial body, has the authority to submit questions for a preliminary ruling.
24.
It then needs to be considered whether all the questions submitted are admissible, as this is disputed by the Austrian Government. Austria states that the assessment procedures are not review procedures within the meaning of Directive 89/665. I cannot share this view.
25.
It is evident from the structure of the Austrian legislation that the powers defined in Article 2(1)(a) and (b) of the directive have been assigned to the Bundesvergabeamt while the power defined in Article 2(1)(c) has been assigned to the civil courts. In this division of tasks the Austrian legislature has applied Article 2(2) of the directive. Austria then exercised the option offered by Article 2(6) of the directive. That provision permits the Member States to opt to restrict the powers of the body responsible for review procedures to awarding damages to anyone harmed by an infringement if the contract has already been concluded following its award.
26.
The directive requires the Member States to provide for powers relating to interlocutory procedures, procedures for setting aside decisions and procedures for the award of damages. The fact that within the framework of procedures for the award of damages the Austrian legislature has provided in its national law for a two-stage procedure (what the Austrian Government calls the assessment procedure before the Bundesvergabeamt and the actual procedure for the award of damages in a civil court) does not preclude the Bundesvergabeamt's power to submit questions for a preliminary ruling, especially as the civil courts are bound by the Bundesvergabeamt's decisions. The procedures are thus closely linked. It would be contrary to the proper purpose of the directive for the Bundesvergabeamt to be unable to submit questions for a preliminary ruling in what the Austrian Government terms an assessment procedure.
27.
It follows from the system of Austrian legislation, after all, that the Bundesvergabeamt determines whether the requirements arising from the directives on the award of public works and supply contracts have been satisfied. Its assessment, as already indicated above, has legal consequences since it forms the basis for determining whether an action for damages may be brought in a civil court. As the Bundesvergabeamt's decisions have legal consequences, questions may be duly submitted for a preliminary ruling within the framework of the assessment procedure, in which, it should be noted, it has to be considered whether Community law on public works and supply contracts or the national legislation transposing Community law has been infringed.
28.
I cannot therefore share the Austrian Government's position that the first question submitted is irrelevant. It is this very body which is required to determine whether an infringement has occurred. It has an interest in knowing whether it may,
ex proprio motu
, include in the case aspects which have not been submitted by the parties. The situation is different where the fifth question is concerned. It asks when a tenderer is entitled to damages. Under Austrian law this is a matter for a civil court. Whether there is entitlement to damages in this particular case is therefore a question which should be answered by that court in accordance with its national law.
29.
I therefore conclude that the Austrian Bundesvergabeamt has the authority to submit questions for a preliminary ruling and that, with the exception of Question 5, all the questions submitted by this body are admissible.
VI ─ Merits
A ─
Question 1a
30.
By this question the requesting court is seeking to determine whether the consideration
ex proprio motu
of circumstances relevant to the contract award procedure is inconsistent with Article 2(8) of the directive or with any other provision of the directive or of Community law.
31.
In the order for reference the Bundesvergabeamt explains that Paragraph 39(2) AVG requires it to take a decision
ex proprio motu
and therefore to examine whether award criteria other than those contested by the applicant are lawful. If it emerges that other criteria are also unlawful, the review may be rejected. The Bundesvergabeamt considers this inference from the wording of Paragraph 113(3) BVergG in conjunction with the principle of
ex proprio motu
in administrative procedures to be consistent, generally, with Community law. In view of the spirit of Paragraph 113(3) BVergG, however, it may be open to question whether this inference is also consistent with the principle of effective legal protection.
32.
The referring court also observes that it is generally unaware of any provisions of Community law precluding action
ex proprio motu
, whilst it accepts that there is something of a contradiction between action
ex proprio motu
in administrative procedures and the
audi alteram partem
principle.
33.
None the less, the Bundesvergabeamt finds it necessary to submit questions on this pursuant to the third paragraph of Article 234 EC. This action is prompted specifically by the judgment of the Bundesverfassungsgericht (Federal Constitutional Court) of 8 March 2001, in which questions arose about the compatibility of action
ex proprio motu
with the principle set out in Article 2(8) of Directive 89/665 that both sides are to be heard in the review procedure. The Bundesverfassungsgericht has set aside a number of decisions taken by the Bundesvergabeamt on the ground that this body took unlawful aspects of the contract award procedure into account
ex proprio motu
.
34.
The Commission points out that the directive does not require review procedures before an independent body within the meaning of Article 2(8) of Directive 89/665 to be based solely on the submissions of the parties and that the possibility of that body including relevant circumstances in the assessment
ex proprio motu
cannot therefore be ruled out as long as they have the right to be heard. The Austrian Government, referring in this regard to the observations it submitted in the
Primetzhofer
case,
(9) similarly takes the view that action taken
ex proprio motu
is not inconsistent with the first part of the last sentence of Article 2(8) of the directive.
35.
In its observations, which focus particularly on the consequences of action
ex proprio motu
, GAT essentially argues that it is inconsistent with the directive for circumstances which have not been cited by the parties to be taken into account in the assessment
ex proprio motu
.
36.
It must first be observed that the Bundesvergabeamt is a court or tribunal within the meaning of Article 234 EC. On a previous occasion, the Court explained that, under the first subparagraph of Article 2(8), the Member States may choose between two solutions in establishing arrangements for the review of public contracts. Either a body of a judicial character is given jurisdiction or a body which is not of such a character is given jurisdiction, in which case the decisions of that body must be capable of being the subject of judicial review or of review by another body which must satisfy the particular requirements of the second subparagraph of Article 2(8) of Directive 89/665.
(10) As the Bundesvergabeamt is to be regarded as a body of a judicial character ( "the first option"
), this guarantee provision does not apply. The Austrian Government's and the Commission's contention that action taken
ex proprio motu
is not inconsistent with the first part of the last sentence of Article 2(8) of the directive is therefore irrelevant in this case. The question continues to be relevant, however, since the referring court also submits it in its capacity as a
"body of a judicial character"
. Furthermore, the fact that a ruling was delivered after a procedure in which both sides were heard is one of the factors which the Court takes into account when determining whether the body concerned is a court or tribunal within the meaning of Article 234 EC.
37.
For the following reasons I take the view that a procedure in which both sides are heard does not rule out action by the competent court
ex proprio motu
in an administrative procedure. A procedure in which both sides are heard means in fact that the parties can react to each other's points of view before the body with jurisdiction delivers a ruling and they must also be able to react to any aspects which this body includes in the examination
ex proprio motu
. The directive also requires the Member States to make provision for accessible, effective and appropriate procedures. However, they are free to decide what form they should take. They may therefore stipulate that a court may take into account
ex proprio motu
circumstances which are relevant to its assessment. How far the Bundesvergabeamt is obliged to include in its assessment
ex proprio motu
all relevant circumstances, thus regardless of the submissions of the parties, is something that will be discussed in the context of the next question. It is my view, therefore, that it is not inconsistent with the directive for a court to take into account, of its own motion and independently of the submissions of the parties during the review procedure, circumstances relevant to the contract award procedure, provided that the intended aim of the directive, in other words, effective legal protection, is guaranteed.
B ─
Question 1b
38.
By Question 1b the Bundesvergabeamt seeks to establish whether Article 2(1)(c) of the directive, possibly in conjunction with other principles of Community law, precludes a decision by the review body dismissing an application by a tenderer that is indirectly aimed at obtaining damages where the contract award procedure was already unlawful on other grounds not cited by the tenderer.
39.
In the order for reference the Bundesvergabeamt explains with regard to Questions 1a and 1b that Paragraphs 113(3) and 115(1) BVergG provide that, in a review procedure following the award of a contract, the Bundesvergabeamt must examine the decision of the contracting authority being contested by an applicant as to its lawfulness, but that the application is to be granted only if it is the unlawful decision being contested that has caused the contract not to be awarded to the best tenderer within the meaning of the law. Therefore, if the contract award procedure is already tainted by fundamental illegality because of a separate (and possibly earlier) decision by the contracting authority and the applicant has not contested that other decision by the contracting authority in the review procedure, an application for review cannot be granted. In that case, a tenderer who contests a decision by the contracting authority that is demonstrated to be unlawful may not make a claim for damages because a separate decision by the contracting authority which has not been challenged has already led to the conclusion that the contract award procedure concerned is unlawful. In such a case, the applicant will not have been
"harmed"
by the contested infringement within the meaning of Article 2(1)(c) of Directive 89/665, because the harm, for example wasted tender costs, will already have been caused by an (earlier) infringement by the contracting authority.
40.
GAT takes the view that the judicial practice of the Bundesvergabeamt, as referred to above, is inconsistent with the effective legal protection required by Community procurement law. GAT refers in this context to the judgment of the Bundesverfassungsgericht which comes to the conclusion on the basis of the Court's case-law that the right to seek a review pursuant to Article 1(3) of Directive 89/665 must be interpreted broadly and that this right is enjoyed by anyone who has shown his interest in the award by submitting a tender. GAT explains that the Bundesverfassungsgericht concluded in that judgment that, in view of the extensive legal protection enjoyed by candidates and tenderers, it is doubtful that the Bundesvergabeamt's position that a review requested by a tenderer cannot succeed because the contract award procedure concerned is already tainted on another ground is compatible with Community law.
41.
To illustrate this, GAT points out that, in the main action, the Bundesvergabeamt put forward its view that, if things had been done properly, the contract award procedure ought really to have been cancelled because the award criterion concerning a list of references is not permissible under either European or Austrian procurement law. GAT adds that the proceedings it has brought do not concern this criterion. In the Bundesvergabeamt's view the consequence is, however, that GAT is not entitled to damages. According to GAT, such legal practice, with the Bundesvergabeamt finding
ex proprio motu
that the procedure is unlawful, may be admissible if it occurs before the contract is awarded. In that event, a fresh invitation to tender from which the inadmissible criteria have been removed can be issued. The tenderer is not then harmed since he is able to compete again. After the contract has been awarded, on the other hand, reparation is not possible. Furthermore, tenderers have evaluated their legal position solely on the basis of what really happened in this specific case. It is on this, according to GAT, that the review procedure should therefore be based.
42.
GAT maintains that the Bundesvergabeamt's legal practice in fact shifts the responsibility for a legally correct contract award procedure to the tenderers, whereas the contracting authority escapes all blame if the procedure is unlawful. It is not for the tenderer to bring to light all, or all potential, infringements during a contract award procedure. The right to seek a review is, after all, linked to his subjective rights, especially if he is harmed, or risks being harmed, by an infringement of the applicable law.
43.
Both the Commission and the Austrian Government propose that this question should be answered in the affirmative. The Commission states that Article 1(3) of Directive 89/665 requires the review procedures to be available to any person who has or has had an interest in the award of the contract and who has been or risks being harmed by an alleged infringement. As regards the scope of the procedures for reviewing decisions of contracting authorities, the Commission refers to the Opinion of Advocate General Tizzano in Case C-92/00.
(11) The considerations set out in that Opinion apply, according to the Commission, not only to procedures directed against a decision of the contracting authority but also to actions for damages under Article 2(1)(c), especially as the directive does not provide for the possibility of restricting an action for damages.
44.
The Austrian Government points out that an answer in the negative would mean that, even if it were well founded, an appeal against the decision of the contracting authority would have to be dismissed because the harm suffered by the interested party had been caused by other irregularities in the contract award procedure not cited by him. An applicant in a contract award procedure would therefore be forced systematically to expose all irregularities in the procedure in order to assert his right. This view might be inconsistent with Directive 89/665, which requires effective action to be taken against any infringement alleged by the applicant. The dismissal of a substantively legitimate application might be seen as a denial of justice. On the other hand, the Austrian Government believes that, as the directive does not contain any explicit rules on this aspect, it can also be argued that the question should be answered solely by reference to national law.
45.
The Court has recalled on several occasions that the aim of Directive 89/665 is to reinforce existing arrangements at both national and Community level for ensuring effective application of Community directives on the award of public contracts. For this reason, Article 1(1) of the directive requires the Member States to ensure that reviews can be conducted effectively and rapidly. The aim is thus to provide for the possibility of reviewing decisions taken by the contracting authorities, without any restriction as regards the nature and content of those decisions.
(12) The scope of the directive thus precludes any interpretation and application that would result in the direct or indirect restriction of the options open to tenderers to seek a review. This, to my mind, is also true of actions for damages. Article 1(3) of the directive provides that the review procedures (including actions for damages) must be available to any person who has or has had an interest in the award of a certain public contract and who has been or risks being harmed by an alleged infringement. Nowhere in the directive is there anything to say that this may be restricted. On the contrary, the only option open to the Member States is to restrict procedures after the contract has been concluded to actions for damages, which should then still be available to
"any person who has been harmed by an infringement"
. Neither the wording of Article 1(3) nor that of Article 2(6) indicates that this power of the interested tenderer can be restricted.
46.
The practice described by the referring court means that tenderers harmed by an infringement for which the contracting authority is responsible cannot claim damages. A tenderer who believes that he has wrongly been denied a contract need not, after all, be aware that, at the stage when the tenderers were being selected, an unlawful criterion had already been applied, quite apart from the fact that he himself satisfied this unlawful criterion and therefore suffered no disadvantage because of it. If he had been excluded at that stage because of an unlawful criterion, he could have acted at that stage.
47.
It would be inconsistent with the purpose of Community law in this field if an examination carried out by the Bundesvergabeamt
ex proprio motu
were to preclude reliance on an unlawful act committed towards a tenderer as a ground for bringing an action for damages. This is particularly so since a contract can no longer be contested once it has been concluded.
C ─
Question 2
48.
The referring court's aim in putting this question is to establish whether Directive 93/36 precludes a list of references relating to the products offered by the tenderers from being regarded as an award criterion.
49.
It is clear from the order for reference that the contracting authority awards points for such lists without considering the relevant customers' experience of the product. A further requirement is that the lists concern customers in the geographical area comprising the part of the Alps within the European Union, an aspect partly covered by the next question. The issue here is whether a list of this kind may play a part in the assessment of the award, rather than being a qualitative selection criterion.
50.
In essence, both the Commission and the Austrian Government observe that this is in the nature of a selection criterion rather than an award criterion and that it is inconsistent with the structure of Directive 93/36 for a list of references relating to the product offered by the tenderer not to be assessed in the context of the tenderer's suitability but to be taken into account in the assessment of the award.
51.
Hitherto the Court has made a very clear distinction between selection criteria ( "choice of tenderers"
) and award criteria ( "choice of tenders"
).
(13) These are separate arrangements forming part of a contract award procedure, and they are subject to separate rules. The tenderer is chosen by reference to his financial and economic standing and technical capacity. The references or evidence that may be furnished to demonstrate tenderers' standing and capacity are specified in Articles 22, 23 and 24 of Directive 93/36, although the list is not exhaustive. Technical capacity may be demonstrated, according to Article 23 of the directive, by a list of the principal deliveries. For the award of the contract, selection can be based either on the lowest price or on criteria identifying the economically most advantageous tender. Article 26(1)(b) of Directive 93/36 gives a number of examples of criteria. Although this is not an exhaustive list and the contracting authority is free to opt for other criteria, that choice is restricted to criteria identifying the economically most advantageous tender.
(14) It is evident from the order for reference that the list of references is regarded as an award criterion. As both the Commission and the Austrian Government have said, a list of references to which a certain number of points is awarded without account being taken of the experience of earlier contracting authorities appearing on the list is undoubtedly suitable as a qualitative selection criterion, but not as an award criterion. I share that view. The list of references here in question may say something about the tenderer's experience and technical expertise, but a list of this kind is not suitable for determining the most advantageous offer. Such a list of references does not, after all, give any indication at all of the services provided, the running costs or other criteria capable of determining which tender will ultimately prove to be economically the most advantageous for the contracting authority.
52.
The above comments lead to the conclusion that the possibility of submitting a list of this kind as an award criterion is incompatible with Article 26 of Directive 93/36. I would add, unnecessarily no doubt, that it is not apparent from the order for reference what kind of references the tenderers concerned were required to submit as evidence of their technical capacity. The fact that this requirement cannot be an award criterion does not in itself mean that it was inappropriate as a selection criterion for the tenderer.
D ─
Question 3
53.
This question follows naturally from the previous one. Strictly speaking, it does not need to be answered since it has been referred only in the event that Questions 1a and 1b are answered in the negative. From the assessment of the previous question it is clear that the use of a list providing no information that is decisive for the assessment of the economic advantages of the tender cannot serve as an award criterion. In the following I shall therefore focus on the question whether taking account only of references from the geographical area comprising the part of the Alps within the European Union is compatible with Community law.
54.
According to the Commission, it may be discriminatory to take into account only references from the geographical area comprising the part of the Alps within the European Union. The Austrian Government is also inclined to this view.
55.
I am able to share this view. From the assessment of the previous question it is already apparent that the contracting authority may apply only award criteria to determine the economically most advantageous tender and that the use of a list of references is not suitable for this purpose. This is undoubtedly also true where it is required that such references from customers be restricted to references from the geographical area comprising the part of the Alps within the European Union. Leaving aside the question whether the list should be described as an award criterion or as a qualitative selection criterion, it is discriminatory in either case. As the Austrian Government has also pointed out, it is equally possible to make comparisons with experience in other mountainous areas where the climate and topology are similar. A tenderer may not therefore gain the necessary points because many of his clients are located in the Alpine area of Switzerland or, say, the French Pyrenees. It might be objected that this still applies regardless of whether tenderers are Austrian nationals or nationals of one of the EU or EEA countries or a country with which an international agreement has been concluded. In practice, however, a requirement that the list of customers relate only to the geographical area comprising the part of the Alps within the European Union, and thus de facto to the Alps situated in Austria and the relatively small parts of the Alps located in Italy and France, results in undertakings established in Austria being de facto in a privileged position.
56.
I therefore conclude that the inclusion of criteria entailing geographical restrictions results in the number of tenderers being limited on the basis of geographical standards and that a criterion of this kind is therefore by its nature discriminatory with respect to potential applicants unable to satisfy this geographical criterion.
E ─
Question 4
57.
This question concerns the award criterion according to which a favourable assessment is possible only if the subject of the invitation to tender can be inspected within a 300 kilometre radius of the authority issuing the invitation to tender. The Commission has commented in this regard that, according to Article 23(1)(d) of Directive 93/36, the contracting authority may require samples, descriptions and/or photographs of the products to be supplied as proof of their suitability. The requirement that there be an opportunity for an inspection within a 300 kilometre radius is therefore a selection criterion. Austria too has argued that this is a selection criterion and not an award criterion. A criterion of this kind is, moreover, discriminatory, according to the Austrian Government, because it favours participants near the contracting authority, meaning, as a rule, participants from the Member State concerned or participants established very close to the border.
58.
GAT has observed in this connection that Paragraph 60 BVergG indicates how evidence of technical capacity can be provided. As a rule, it consists of certificates, photographs and samples. Only in exceptional cases does the BVergG permit the product itself to be inspected, for example where it is of a complex nature (Paragraph 60(2) BvergG). It also follows from this provision that the inspection requirement may not be so worded that the reference object must be located near the contracting authority. Such a requirement would be inconsistent with the purpose of European procurement law because it would restrict the opportunities for manufacturers and suppliers from other Member States to participate in tender procedures. Consequently, Paragraph 60(2) BveregG provides that an on-the-spot inspection may be carried out either by the contracting authority itself or by an authorised body acting on its behalf in the tenderer's country of origin. According to the BVergG, where the complexity of the product to be supplied necessitates a personal inspection, a contracting authority must accept all products in Europe as a reference to assess technical capacity. GAT also explains that there is no analogous provision for the assessment of the economically most advantageous tender. None the less, the view prevailing in Austria was that, to enable the economically most advantageous tender to be assessed, the tender documents may provide for an opportunity to inspect the product or for similar evidence to be produced if the specific features of the object concerned require. GAT argues that there is no reason to make a distinction according to whether the opportunity for an inspection forms part of a selection criterion or an award criterion. A contracting authority's power to require an inspection near to where it was established amounted to hidden discrimination, since it was a requirement which only Austrian undertakings could as a rule satisfy. It would be different only if the products concerned were mass-produced or small in size, as the forwarding of a sample would then usually be sufficient. This case, however, concerned the manufacture of a specific model, which normally gave rise to very high transport costs. In such cases the manufacturer's interest prevailed and the contracting authority could not require that the inspection take place only in the vicinity of its establishment.
59.
As discussed in the answers to the previous questions, the only award criteria that may be considered are those which might help to determine
"the economically most favourable tender"
. I fail to see how the criterion
"opportunity for an inspection within a 300 kilometre radius"
might contribute to this. It is thus a selection rather than an award criterion. Even then, however, it is inadmissible because a 300 kilometre radius imposes a real restriction. It is, after all, to the advantage of tenderers whose customers and/or establishment are located near the contracting authority and so usually have the same nationality as the contracting authority. It is therefore discriminatory in terms of the country of origin of the goods and/or services concerned and the nationality of the supplier. This aside, I do not see any need to restrict the possibility of an on-the-spot inspection of the object to a 300 kilometre radius of the authority issuing the invitation to tender. As GAT has also indicated, other options are possible if an on-the-spot inspection is required.
F ─
Question 5
60.
In point 29 I came to the conclusion that this question is inadmissible since, once the contract has been awarded, the Bundesvergabeamt is authorised only to determine whether the open contract award procedure has been carried out correctly and whether the contract has been awarded to the best tenderer: it is not authorised to award damages. In case the Court disagrees with me in this regard, I will consider this question further.
61.
The premiss is that there has been an infringement and that this infringement consists in the adoption of an unlawful award criterion. The question then is whether the tenderer is entitled to damages only if it can actually be proved that, but for this unlawful award criterion, he would have been the best tenderer.
62.
To clarify this question, the requesting court has stated that Community law does not expressly state under what conditions it must be held that a tenderer has actually been harmed by an infringement of the law committed by the contracting authority. It points out that it will often be difficult in practice to prove what the tenderer's tender would have been but for the unlawful criterion. On the other hand, it is in practice easier to carry out an investigation into infringements during contract award procedures if it is assumed that tenderers are harmed by any unlawful award criterion that is potentially relevant to the contents of their tenders.
63.
Article 2(1)(c) of Directive 89/665 concerns the awarding of damages to persons harmed by an infringement. A similar provision can be found in Article 2(1)(d) of Directive 92/13.
(15) The Commission rightly points out that, in contrast to the latter directive, which provides that, where a claim is made for damages representing the costs of preparing a bid or of participating in an award procedure, the person making the claim is required only to prove an infringement of procurement law and that he would have had a real chance of winning the contract,
(16) Directive 89/665 does not include a provision to this effect. I would add that this directive does not contain any provisions concerning claims for damages representing other costs.
64.
There being no such provision in the directive, this aspect is governed, according to the Court's settled case-law,
(17) by national law, with due regard for the general principles of Community law, including the principle of equivalence and the principle of effectiveness. From this it follows that claims for damages are governed by the material and formal conditions defined by Austrian legislation. According to settled case-law, these conditions may not, however, be less favourable than those governing the same right of action on an internal matter (a principle on which the directive itself is based) and they may not be such that the exercise of the rights granted by the Community system of law is made practically impossible.
65.
I would add in this context that the granting of an entitlement to damages to the tenderer only on condition that he can actually prove that, but for the unlawful award criterion, he would have won the contract may mean that the exercise of these rights is impossible in practice or at least seriously restricted.
66.
On that hypothesis, which amounts to ruling out any compensation for the costs incurred in vain by a tenderer through participating in an irregular contract award procedure, potential applicants may be deterred from participating in such procedures. I consider this to be inconsistent with the aim of the procurement directives and with the purpose of Directive 89/665, the very objective of which is to increase the opportunities for reviewing infringements of these procurement directives. I conclude from this that Article 2(1)(c) of the directive cannot be interpreted so narrowly as to give a tenderer the right to damages only if he can prove that, but for the unlawful award criterion, he would have won the contract. Although the scale of the entitlement to damages is in principle governed by national law, the application of that law must not result in the exercise of the rights granted by the system of Community law becoming de facto impossible or at least seriously restricted.
VII ─ Conclusion
67.
In view of the above, I propose to the Court that the questions submitted for a preliminary ruling should be answered as follows:
(1a)
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 does not preclude an authority responsible for carrying out review procedures within the meaning of Article 1(1) of that directive, including the exercise of the powers referred to in Article 2(1)(c) thereof, from taking relevant circumstances into account of its own motion and independently of the submissions of the parties to the review procedure.
(1b)
Article 2(1)(c) of Directive 89/665 does not preclude an authority responsible for carrying out review procedures within the meaning of Article 1(1) of that directive, including the exercise of the powers referred to in Article 2(1)(c) thereof, from dismissing an application by a tenderer that is indirectly aimed at obtaining damages, because the contract award procedure has allegedly already been tainted by deficiencies other than those cited by the tenderer.
(2)
The provisions of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts prohibits a public contracting authority conducting a contract award procedure from taking account of references relating to the products offered by tenderers as an award criterion.
(3)
A reference criterion whereby only the number of references is counted and no substantive examination is made of contracting authorities' experiences of the product is not an award criterion within the meaning of Article 26 of Directive 93/36. The consideration only of references from the geographical area comprising the part of the Alps within the European Union constitutes, moreover, discrimination prohibited by the Treaty on the ground of the origin of the goods or services concerned.
(4)
A criterion under which applicants are considered only if the subject of the invitation to tender can be inspected within a 300 kilometre radius of the authority issuing the invitation to tender is not an award criterion. The criterion is, moreover, inadmissible because it is discriminatory.
(5)
It does not follow from Article 2(1)(c) of Directive 89/665 that an entitlement to damages exists only if the tenderer can actually prove that, but for the unlawful award criterion, he would have been the best tenderer.
(1) .
(2)
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).
(3)
Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1).
(4)
Bundesvergabegesetz 1997, BGBl. I, 56/1997.
(5)
[1998] ECR I-7023, paragraph 14.
(6)
[2001] ECR I-4421, paragraph 14.
(7)
See, for example, the judgments in Case C-44/96Mannesmann Anlagenbau Austria and Others
[1998] ECR I-73, Case C-76/97
Tögel
[1998] ECR I-5357, Case C-111/97
EvoBus Austria
[1998] ECR I-5411, Case C-27/98
Fracasso and Leitschutz
[1999] ECR I-5697, Case C-81/98
Alcatel Austria and Others
[1998] ECR I-7671, Case C-324/98
Teleaustria and Telefonadress
[2000] ECR I-10745 and Case C-94/99
ARGE
[2000] ECR I-11037.
(8)
[2002] ECR I-10567.
(9)
This case has meanwhile been concluded; see the order of 11 July 2002 in Case C-464/00 (not published in the ECR).
(10)
Case C-103/97
Köllensberger and Altzwanger
[1999] ECR I-551, paragraphs 27 to 30. See also Case C-258/97
HI
[1999] ECR I-1405, paragraphs 14 to 19.
(11)
See points 23 and 24 of the Opinion in Case C-92/00
HI
[2002] ECR I-5553.
(12)
Alcatel Austria
(cited in footnote 7); see also Case C-92/00
HI
, cited in footnote 11.
(13)
Case 31/87
Beentjes
[1988] ECR 4635. This case concerned Directive 71/305/EEC; Directive 93/36 is similarly structured.
(14)
See, for example, Case C-19/00
SIAC Construction
[2001] ECR I-7725 and
Beentjes
(cited in footnote 13).
(15)
Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1992 L 76, p. 14).
(16)
See Article 2(7) of Directive 92/13.
(17)
See the recent judgment in Case C-62/00
Marks
& Spencer
[2002] ECR I-6325 and the case-law referred to therein.