Keywords

Summary



Keywords

1. Approximation of laws – Procedures for the award of public service contracts – Directive 92/50 – Scope

(Council Directives 89/665, Art. 1, and 92/50)

2. Approximation of laws – Review procedures in respect of the award of public supply and public works contracts – Directive 89/665 – Scope

(Council Directive 89/665)

3. Community law – Principles – Right to effective judicial protection – Decision adopted by an authority other than the contracting authority liable to have an effect on a public contract award procedure

(Council Directive 89/665)

Summary

1. A mixed contract of which the main object is the acquisition by an undertaking of 49% of the capital of a public undertaking and the ancillary object, indivisibly linked with that main object, is the supply of services and the performance of works does not, as a whole, fall within the scope of the directives on public contracts.

In the case of a mixed contract, the different aspects of which are inseparably linked and thus form an indivisible whole, the transaction at issue must be examined as a whole for the purposes of its legal classification and must be assessed on the basis of the rules that govern the aspect which constitutes the main object or predominant feature of the contract. That conclusion is valid irrespective of whether or not the aspect constituting the main object of a mixed contract falls within the scope of the directives on public contracts.

The transfer of shares to a tenderer in the context of a privatisation of a public undertaking does not fall within the scope of the directives on public contracts.

(see paras 48-49, 59, 62, operative part 1)

2. It is apparent from the terms 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 that the protection granted by that directive covers the acts or omissions of contracting authorities. Accordingly, disputes relating to decisions of an authority other than the contracting authority are not governed by the review system laid down by that directive.

(see paras 67, 69)

3. European Union law, in particular the right to effective judicial protection, precludes a national rule interpreted as meaning that the members of a temporary association, tenderer in a public procurement procedure, are deprived of the possibility of seeking, individually, compensation for the loss they suffered individually as a result of a decision adopted by an authority, other than the contracting authority, involved in that procedure in accordance with the applicable national rules, that is such as to influence the conduct of that procedure.

Disputes relating to decisions of an authority, other than the contracting authority, are not governed by the review system laid down by 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.

However, although the decisions of such an authority are liable to have a certain effect on the conduct, or even the outcome, of a public procurement procedure, inasmuch as they can lead to the exclusion of a tenderer, those decisions are not devoid of interest in respect of the proper application of European Union law in that area. In the absence of Community rules governing the matter, it is for each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from European Union law. Those detailed procedural rules must, however, be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render impossible in practice or excessively difficult the exercise of rights conferred by European Union law (principle of effectiveness).

(see paras 69-70, 74, 80, operative part 2)