Keywords

Summary



Keywords

1 Approximation of laws - Procedures for the award of public service contracts - Directive 92/50 - Provision requiring Member States to establish review bodies - Failure to transpose - Consequences - Whether review bodies with jurisdiction to review procedures for the award of public supply and works contracts may hear appeals concerning procedures for the award of public service contracts - Not a necessary consequence - Obligation on the part of national courts to determine whether it is possible to appeal under domestic law

(Council Directive 89/665, Arts 1(1) and (2) and 2(1) and Council Directive 92/50, Art. 41)

2 Approximation of laws - Procedures for the award of public service contracts - Directive 92/50 - Scope - Services for the transport of injured and sick persons with a nurse in attendance - Included - Classification as Land transport services in Annex I A, Category No 2, and as Health and social services in Annex I B, Category No 25

(Council Directive 92/50, Annexes I A and I B)

3 Approximation of laws - Procedures for the award of public service contracts - Directive 92/50 - Direct effect

(Council Directive 92/50)

4 Approximation of laws - Procedures for the award of public service contracts - Directive 92/50 - Effects of the directive on existing legal situations concluded before expiry of the period for transposition - None

(Council Directive 92/50)

Summary

1 Neither Article 1(1) and (2), Article 2(1) nor any other provision of Directive 89/665, on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, may be interpreted as meaning that, if Directive 92/50 relating to the coordination of procedures for the award of public service contracts has not been transposed by the end of the period laid down for that purpose, the review bodies in the Member States with jurisdiction to review procedures for the award of public supply contracts and public works contracts, established under Article 2(8) of Directive 89/665, may also hear appeals concerning procedures for the award of public service contracts.

However, in order to observe the requirement that domestic law must be interpreted in conformity with Directive 92/50 and the requirement that the rights of individuals must be protected effectively, the national court must determine whether the relevant provisions of its domestic law allow recognition of a right for individuals to bring an appeal in relation to awards of public service contracts. In that respect, the national court must determine in particular whether such a right of appeal may be exercised before the same bodies as those established to hear appeals concerning the award of public supply contracts and public works contracts.

2 Services consisting in the transport of injured and sick persons with a nurse in attendance come within both Annex I A, Category No 2, and Annex I B, Category No 25, to Directive 92/50, so that a contract for those services is covered by Article 10 of Directive 92/50.

Both Annex I A and Annex I B refer to the CPC nomenclature (common product classification) of the United Nations and those annexes clearly distinguish between transport and medical services delivered in the ambulance. The seventh recital in the preamble to Directive 92/50 clearly indicates that the reference in those Annexes to that nomenclature is binding. CPC reference number 93, appearing in Category No 25 (Health and social services) in Annex I B, clearly indicates that this category relates solely to the medical aspects of health services governed by a public contract, to the exclusion of the transport aspects, which come under Category No 2 (Land transport services), which have the CPC reference number 712.

3 The provisions of Titles I and II of Directive 92/50 may be relied on directly by individuals before national courts. As regards the provisions of Titles III to VI, these may also be relied on by an individual before a national court if it is clear from an individual examination of their wording that they are unconditional and sufficiently clear and precise.

The detailed provisions of Titles III to VI of the directive, on the choice of award procedures and the rules applicable to competitions, common technical and advertising rules, and participation and selection and award criteria, are, subject to exceptions and qualifications which are apparent from their terms, unconditional and sufficiently clear and precise to be relied on by service providers before national courts.

4 Community law does not require an awarding authority in a Member State to intervene, at the request of an individual, in existing legal situations concluded for an indefinite period or for several years where those situations came into being before expiry of the period for transposition of Directive 92/50.