Judgment of the Court (Sixth Chamber) of 16 October 2003 in Case C-421/01 (Reference for a preliminary ruling from the Bundesvergabeamt): Traunfellner GmbH v Österreichische Autobahnen- und Schnellstraßen-Finanzierungs-AG (Asfinag) (Directive 93/37/EEC — Public works contracts — Concept of a "variant" — Conditions for consideration and assessment for the purpose of awarding a contract)
Date: 2003-11-29
Institutions: Court of Justice
Subjects: administrative procedure, award of contract, equal treatment, interpretation of the law, public contract, works contract

29.11.2003

EN

Official Journal of the European Union

C 289/3

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Sixth Chamber)

(Sixth Chamber)

of 16 October 2003

of 16 October 2003

in Case C-252/01: Commission of the European Communi-
ties v Kingdom of Belgium (1)

(Failure by a Member State to fulfil
its obligations —
Procedures for the award of public service contracts —
Directive 92/50/EEC — Renewal of a contract for surveil-
lance of the Belgian coast by aerial photography)

in Case C-421/01 (Reference for a preliminary ruling from
the Bundesvergabeamt): Traunfellner GmbH v Österre-
ichische Autobahnen- und Schnellstraßen-Finanzierungs-
AG (Asfinag) (1)

(Directive 93/37/EEC — Public works contracts — Concept
of a ‘variant’ — Conditions for consideration and assessment
for the purpose of awarding a contract)

(2003/C 289/04)

(Language of the case: Dutch)

(2003/C 289/05)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-252/01, Commission of the European Communities
(Agent: H. van Lier, assisted by J. Stuyck) v Kingdom of
Belgium (Agent: A. Snoecx): Application for a declaration that:

— by failing, in respect of a contract to perform services
involving coastal surveillance by means of aerial pho-
tography, to place a notice in the Official Journal of the
European Communities, as required under Directive 92/
50/EEC relating to the coordination of procedures for the
award of public service contracts (OJ 1992 L 209, p. 1);
and

— by making use, without justification, of the negotiated
procedure without prior publication of a contract notice,

its obligations
the Kingdom of Belgium has failed to fulfil
under that directive and,
in particular, Articles 11(3) and
15(2), thereof, the Court (Sixth Chamber), composed of: J.-
P. Puissochet, President of the Chamber, R. Schintgen, V. Skou-
ris, N. Colneric, and J.N. Cunha Rodrigues (Rapporteur),
Judges; S. Alber, Advocate General; L. Hewlett, Principal
Administrator, for the Registrar, has given a judgment on
16 October 2003, in which it:

1. Dismisses the application;

2. Orders the parties to bear their own costs.

In Case C-421/01: Reference to the Court under Article 234
EC by the Bundesvergabeamt (Austria) for a preliminary ruling
in the proceedings pending before that tribunal between
Traunfellner GmbH and Österreichische Autobahnen- und
Schnellstraßen-Finanzierungs-AG (Asfinag) on the interpret-
ation of Council Directive 93/37/EEC of 14 June 1993
concerning the coordination of procedures for the award of
public works contracts (OJ 1993 L 199, p. 54), the Court
(Sixth Chamber), composed of: J.-P. Puissochet, President of
the Chamber, R. Schintgen, V. Skouris (Rapporteur), F. Macken
and J.N. Cunha Rodrigues, Judges; S. Alber, Advocate General;
M.F. Contet, Principal Administrator, for the Registrar, has
given a judgment on 16 October 2003, in which it has ruled:

1. Article 19 of Council Directive 93/37/EEC of 14 June 1993
concerning the coordination of procedures for the award of
public works contracts is to be interpreted as meaning that the
obligation to set out the minimum specifications required by a
contracting authority in order to take variants into consideration
is not satisfied where the contract documents merely refer to a
provision of national legislation requiring an alternative tender
to ensure the performance of work which is qualitatively
equivalent to that for which tenders are invited.

2. Article 30 of Directive 93/37 can apply only to variants which
have been properly taken into consideration by the contracting
authority in accordance with Article 19 of that directive.

(1) OJ C 245 of 1.9.2001.

(1) OJ C 3 of 5.1.2002.