CELEX: C1998/340/07
Language: en
Date: 1998-11-07 00:00:00
Title: JUDGMENT OF THE COURT (Sixth Chamber) of 24 September 1998 in Case C-76/97 (reference for a preliminary ruling from the Bundesvergabeamt): Walter Tögel v. Niederösterreichische Gebietskrankenkasse (Public service contracts - Direct effect of a directive not transposed into national law - Classification of services for the transport of patients)

C 340/4               EN                  Official Journal of the European Communities                                    7.11.98
(EEC) No 1612/68 of the Council of 15 October 1968 on                for the award of public service contracts (OJ L 209 of
freedom of movement for workers within the Community                 24.7.1992, p. 1) Ð the Court (Sixth Chamber), composed
(OJ L 257 of 19.10.1968, p. 2) Ð the Court (Fifth                    of: H. Ragnemalm, President of the Chamber, G. F.
Chamber), composed of: C. Gulmann, President of the                  Mancini, P. J. G. Kapteyn (Rapporteur), J. L. Murray and
Chamber, M. Wathelet, J. C. Moitinho de Almeida,                     K. M. Ioannou, Judges; N. Fennelly, Advocate General;
D. A. O. Edward (Rapporteur) and J.-P. Puissochet,                   H. A. Rühl, Principal Administrator, for the Registrar, has
Judges; S. Alber, Advocate General; L. Hewlett,                      given a judgment on 24 September 1998, in which it has
Administrator, for the Registrar, has given a judgment on            ruled:
24 September 1998, in which it:
                                                                     1. Neither Article 1(1) and (2), Article 2(1) nor any other
                                                                         provision of Council Directive 89/665/EEC of
1. declares that, by excluding frontier workers residing in              21 December 1989, on the coordination of the laws,
     Belgium from qualifying for supplementary retirement                regulations and administrative provisions relating to
     pension points after being placed in early retirement,              the application of review procedures to the award of
     the French Republic has failed to fulfil its obligations            public supply and public works contracts, may be
     under Article 48(2) of the EC Treaty and Article 7 of               interpreted as meaning that, if Council Directive 92/
     Regulation (EEC) No 1612/68 of the Council of                       50/EEC of 18 June 1992 relating to the coordination
     15 October 1968 on freedom of movement for                          of procedures for the award of public service contracts
     workers within the Community;                                       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,
2. orders the French Republic to pay the costs.                          for the award of public supply contracts and public
                                                                         works contracts, established under Article 2(8) of
                                                                         Directive 89/665/EEC, may also hear appeals
(1) OJ C 94 of 22.3.1997.                                                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/EEC and the
                                                                         requirement that the rights of individuals must be
                                                                         protected effectively, the national court must
                                                                         determine whether the relevant provisions of its
              JUDGMENT OF THE COURT                                      domestic law allow recognition of a right for
                                                                         individuals to bring an appeal in relation to awards of
                       (Sixth Chamber)
                                                                         public service contracts. In circumstances such as
                    of 24 September 1998                                 those arising in the present case, the national court
                                                                         must determine in particular whether such a right of
in Case C-76/97 (reference for a preliminary ruling from                 appeal may be exercised before the same bodies as
the Bundesvergabeamt): Walter Tögel v. Niederöster-                      those established to hear appeals concerning the award
             reichische Gebietskrankenkasse (1)                          of public supply contracts and public works contracts.
(Public service contracts Ð Direct effect of a directive not
transposed into national law Ð Classification of services            2. Services consisting in the transport of injured and sick
                 for the transport of patients)                          persons with a nurse in attendance come within both
                                                                         Annex I A, Category No 2, and Annex I B, Category
                         (98/C 340/07)                                   No 25, to Directive 92/50/EEC, so that a contract for
                                                                         those services is covered by Article 10 of Directive 92/
                                                                         50/EEC.
               (Language of the case: German)
                                                                     3. The provisions of Titles I and II of Directive 92/50/
                                                                         EEC may be relied on directly by individuals before
                                                                         national courts. As regards the provisions of Titles III
  (Provisional translation; the definitive translation will be           to VI, these may also be relied on by an individual
         published in the European Court Reports)                        before a national court if it is clear from an individual
                                                                         examination of their wording that they are
                                                                         unconditional and sufficiently clear and precise.
In Case C-76/97: reference to the Court under Article 177
of the EC Treaty from the Bundesvergabeamt (Federal                  4. Community law does not require an awarding
Procurement Office) (Austria), for a preliminary ruling in               authority in a Member State to intervene, at the
the proceedings pending before that court between Walter                 request of an individual, in existing legal situations
Tögel and Niederösterreichische Gebietskrankenkasse Ð                    concluded for an indefinite period or for several years
on the interpretation of Council Directive 89/665/EEC of                 where those situations came into being before expiry
21 December 1989 on the coordination of the laws,                        of the period for transposition of Directive 92/50/
regulations and administrative provisions relating to the                EEC.
application of review procedures to the award of public
supply and public works contracts (OJ L 395 of                       (1) OJ C 108 of 5.4.1997.
30.12.1989, p. 33), and of Council Directive 92/50/EEC
of 18 June 1992 relating to the coordination of procedures