CELEX: 62001CO0424
Language: en
Date: 2003-04-09 00:00:00
Title: Order of the Court (Fourth Chamber) of 9 April 2003. # CS Communications & Systems Austria GmbH v Allgemeine Unfallversicherungsanstalt. # Reference for a preliminary ruling: Bundesvergabeamt - Austria. # Public contracts - Directive 89/665/EEC - Review procedures for the award of public contracts - Action for annulment of a decision of the contracting authority - Application for interim measures - Duty or discretion of the body responsible for review procedures to take account of the prospects of success of the substantive claim - Article 104(3) of the Rules of Procedure - Question the answer to which does not admit of any reasonable doubt. # Case C-424/01.

Case C-424/01 CS Communications & Systems Austria GmbHvAllgemeine Unfallversicherungsanstalt(Reference for a preliminary ruling from the Bundesvergabeamt (Austria))
         
            «(Public contracts – Directive 89/665/EEC – Review procedures for the award of public contracts – Action for annulment of a decision of the contracting authority – Application for interim measures – Duty or discretion of the body responsible for review procedures to take account of the prospects of success of the substantive
               claim – Article 104(3) of the Rules of Procedure – Question the answer to which does not admit of any reasonable doubt)»
            
            
               
                  Order of the Court (Fourth Chamber), 9 April 2003  
                     
               I - 0000 
               
            
                   
               
               
            
            Summary of the Order
         
         
                  
                  Approximation of laws – Review procedures relating to the award of public supply and public works contracts – Directive 89/665 – Interim measures – Consideration of chances of success of the substantive claim by the body responsible for review procedures – Permissibility – Conditions(Council Directive 89/665, Art. 2)Article 2 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 as amended by Directive 92/50 relating to the
         coordination of procedures for the award of public service contracts must be interpreted as meaning that it does not preclude
         the Member States from providing that, when a body responsible for review procedures for the award of public contracts decides
         an application for interim measures, it is bound or authorised to take account of the prospects of success of an application
         for a decision of a contracting authority to be set aside on the ground that it is unlawful, so long as the national rules
         thus governing the adoption of those interim measures are not less favourable than those governing similar domestic actions
         and do not make it practically impossible or excessively difficult to exercise the rights conferred by Community law.see para. 33, operative part
      

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            ORDER OF THE COURT (Fourth Chamber)9 April 2003  (1)
            
            
         
         
            
         
            ((Public contracts – Directive 89/665/EEC – Review procedures for the award of public contracts – Action for annulment of a decision of the contracting authority – Application for interim measures – Duty or discretion of the body responsible for review procedures to take account of the prospects of success of the substantive
               claim – Article 104(3) of the Rules of Procedure – Question the answer to which does not admit of any reasonable doubt))
            
            
         In Case C-424/01, 
         REFERENCE to the Court under Article 234 EC by the Bundesvergabeamt (Austria) for a preliminary ruling in the proceedings
         pending before that body between
         
         
         
          CS Communications & Systems Austria GmbH 
         
         
         and
         
          Allgemeine Unfallversicherungsanstalt 
         
         
         on the interpretation of Article 2 of 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), as amended by Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of
         procedures for the award of public service contracts (OJ 1992 L 209, p. 1),
         
         
         
         
         THE COURT (Fourth Chamber),
         
         composed of: C.W.A. Timmermans (Rapporteur), President of the Chamber, A. La Pergola and S. von Bahr, Judges, 
         
         Advocate General: S. Alber, Registrar: R. Grass, 
         
         the national court having been informed that the Court proposes to give its decision by way of a reasoned order in accordance
            with Article 104(3) of the Rules of Procedure, the persons referred to in Article 23 of the EC Statute of the Court of Justice
            having been invited to submit any observations which they might wish to make in this regard, after hearing the Advocate General,
            makes the following 
         
         
         
         Order
         1
            
         By order of 25 October 2001, received at the Court on the following day, the Bundesvergabeamt (Federal Procurement Office)
         referred to the Court of Justice for a preliminary ruling under Article 234 EC two questions on the interpretation of Article
         2 of 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), as amended by Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award
         of public service contracts (OJ 1992 L 209, p. 1) (
         Directive 89/665). 
         
         
         2
            
         Those questions were raised in the course of proceedings between CS Communications & Systems Austria GmbH (
         CS Austria) and Allgemeine Unfallversicherungsanstalt (
         AUV), regarding the decision taken by the latter to reject, without considering its merits, the tender that CS Austria had made
         in relation to a contract to deliver, install and initialise various network electronic components, on the ground that it
         did not correspond to the specifications of the invitation to tender. 
         
            
               Community legal framework
            
         
         3
            
         As stated in the third recital in the preamble thereto, Directive 89/665 aims to increase the guarantees of transparency and
         non-discrimination in relation to the opening-up of public procurement to Community competition and to ensure, in particular,
         that effective and rapid remedies are available in Member States in the case of infringements of Community law in the field
         of public procurement or national rules implementing that law. 
         
         
         4
            
         Article 2(1) of Directive 89/665 states, to that end, that the Member States are to ensure  
         that the measures taken for the purpose of [guaranteeing that such effective and rapid remedies are available] include provision
         for the powers to: 
         
         (a)
         take, at the earliest opportunity and by way of interlocutory procedures, interim measures with the aim of correcting the
         alleged infringement or preventing further damage to the interests concerned, including measures to suspend or to ensure the
         suspension of the procedure for the award of a public contract or the implementation of any decision taken by the contracting
         authority; 
         
         
         (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.
         
         
         
         5
            
         As regards the adoption of interim measures, Article 2(4) provides: The Member States may provide that when considering whether to order interim measures the body responsible may take into account
         the probable consequences of the measures for all interests likely to be harmed, as well as the public interest, and may decide
         not to grant such measures where their negative consequences could exceed their benefits. A decision not to grant interim
         measures shall not prejudice any other claim of the person seeking these measures.
         
         
         6
            
         Finally, under the first subparagraph of Article 2(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 [234] of the Treaty and independent
         of both the contracting authority and the review body.
         National legal framework
         
         7
            
         Directive 89/665 was transposed into Austrian law by the Bundesgesetz über die Vergabe von Aufträgen (Bundesvergabegesetz)
         (Federal Law on the award of public contracts, BGBl. 1993/462). That law was replaced in 1997 by a law of the same title (BGBl.
         I, 1997/56,  
         the BVergG). 
         
         
         8
            
         Paragraph 113 of the BVergG provides: 
         
         1.
          The Bundesvergabeamt is responsible on application for carrying out a review procedure in accordance with the following provisions.
         
         
         2.
          Until the award of the contract, the Bundesvergabeamt may:
         
         
         (a)
         grant interim orders, and  
         
         
         (b)
         set aside unlawful decisions of the contracting authority 
         in order to prevent infringements of this federal law and its implementing rules.
         
         3.
          Once the contract has been awarded or the contract award procedure has been ended, the Bundesvergabeamt may determine that
         as a result of an infringement of this federal law, or of any regulations made hereunder, the award was not made to the tenderer
         who made the best offer. ...
         
         
         
         9
            
         Paragraph 116, concerning the adoption of interim orders, provides: 
         
         1.
          As soon as the review procedure is initiated the Bundesvergabeamt is bound in the case of an application to that effect to
         make without delay, by way of interlocutory order, the interim measures which appear necessary and appropriate to remove or
         prevent harm, existing or imminent, which adversely affects the applicant's interests on account of the alleged unlawful act.
         ...
         
         3.
          Before making an interim order the Bundesvergabeamt must weigh the probable consequences of the measure to be taken for all
         the interests of the defendant, the other candidates or tenderers and the contracting authority likely to be harmed, as well
         as any specific public interest in continuing the contract award procedure. If it appears from that examination that the negative
         consequences of an interim order outweigh its advantages, it must not be granted.
         
         
         4.
          An interim order may provisionally suspend the entire contract award procedure, or certain decisions of the contracting authority
         until any order to set aside the decision is made by the Bundesvergabeamt, or may prescribe any other appropriate measure.
         Further, it is appropriate to make an order for the interim measure which is the least onerous in the light of the aim pursued.
         ...
         
         6.
          Interim measures have immediate effect. Their implementation is governed by the Verwaltungsvollstreckungsgesetz 1991 [Law
         on the enforcement of administrative decisions, BGBl. 1991/53].
         
         The main proceedings and the questions referred for a preliminary ruling
         
         10
            
         On 9 July 2001 the AUV published an invitation to tender for a contract to deliver, install and initialise various network
         electronic components and network management software. The value of that contract, which also included training on the use
         of that software, was estimated at EUR 1 000 000. 
         
         
         11
            
         By letter of 10 September 2001, CS Austria submitted a tender for the contract stating, however, that the products that it
         sought to supply were not new products, but that they had been subject to a general overhaul. 
         
         
         12
            
         By letter of 19 September 2001, the AUV informed CS Austria that its tender had been rejected, without consideration of the
         content, on the ground that it did not correspond to the specifications of the invitation to tender. The AUV relied, in that
         regard, on the case-law of the Austrian civil courts, according to which in the case of doubt and in the absence of any express
         provision to the contrary, only new products may be tendered for a public supply contract. 
         
         
         13
            
         CS Austria brought an action before the Bundesvergabeamt under Paragraph 113 of the BVergG, seeking to have the rejection
         of its tender set aside, and for an interim measure restraining the contracting authority from awarding the contract until
         the Bundesvergabeamt had ruled on the substance of its application to have the decision set aside. In support of its application,
         CS Austria argued, firstly, that the invitation to tender did not contain any indication that the products supplied had to
         be new, but only required the products to satisfy all the safety rules in force, which was the case in these proceedings because
         the products that it proposed for tender had been subject to a general overhaul and, as regards the electronic switches, were
         not liable to any form of wear and tear. Secondly, CS Austria argued that it had submitted the tender which was the lowest
         in price, although fully equivalent technically to the tenders of the other tenderers, and that the contract should therefore
         have been awarded to it, so that the AUV's decision to dismiss its tender without examining its content was unlawful, and
         was likely to cause it serious financial loss. 
         
         
         14
            
         The AUV contended that the interim measure should be set aside on the ground, firstly, that a delay of two months in the award
         of the contract would expose it to considerable financial loss and would jeopardise the treatment capacity of the hospitals
         to which the supplies at issue were destined and secondly, that the application for an interim measure amounted to an abuse
         of process because the application to have the contracting authority's decision set aside, that the application for an interim
         measure was intended to preserve, was in any event bound to fail. The AUV pointed out, in that connection, that CS Austria
         admitted that it had only offered second-hand reconditioned products, while Austrian civil courts have consistently held that
         in the absence of an express stipulation to the contrary, the goods supplied under a contract must always be new. As used
         goods had not been expressly authorised in the invitation to tender, CS Austria's tender had purely and simply to be dismissed.
         
         
         
         15
            
         By decision of 25 October 2001, the Bundesvergabeamt allowed CS Austria's application in part, in so far as it restrained
         the contracting authority from awarding the contract before 25 November 2001. However, it reserved its decision on the other
         aspects of the interlocutory application, on the ground that that depended on an interpretation of Article 2 of Directive
         89/665. It observed, in that regard, that although the Austrian legislature had taken, in Paragraph 116(3) of the BVergG,
         the measures necessary for the transposition of Article 2(4) of Directive 89/665, the latter provision did not explicitly
         provide for consideration, by the body responsible for the review procedures for the award of public contracts, of the prospects
         of success of the application to set aside the contracting authority's decision. 
         
         
         16
            
         According to the Bundesvergabeamt, firstly, that provision could be interpreted as meaning that only the factual difficulties
         that the grant of an interim measure involves, such as the delay in awarding the contract and the difficulties which arise
         from that, would be taken into consideration by that body. Such an interpretation could be justified by considerations relating
         to the essential effectiveness of the interlocutory procedure for the purposes of Directive 89/665, as consideration of the
         substantive application's prospects of success as early as at the stage of the decision relating to the interim measure in
         fact anticipates the outcome of the substantive proceedings. 
         
         
         17
            
         Secondly, the Bundesvergabeamt points out that Article 2(4) of Directive 89/665 explicitly authorises the body responsible
         for review procedures for the award of public contracts to take account of the probable consequences of interim measures for
         all interests likely to be affected, including the public interest. It is thus possible that in weighing those competing interests,
         that body may also consider the prospects of success of the application to set aside the contracting authority's decision.
          
         
         
         18
            
         Taking the view, in those circumstances, that the resolution of the dispute pending before it depended on an interpretation
         of Community law, the Bundesvergabeamt decided to stay its proceedings and to refer the following questions to the Court for
         a preliminary ruling: 
         
         1.
          When balancing interests prior to deciding an application for interim measures, as required by Article 2(4) of 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, as amended by Directive 92/50/EEC
         of 18 June 1992, is the  
         body responsible for review procedures within the meaning of Article 2(8) of Directive 89/665/EEC required to take into account the prospects of success of an application
         for an unlawful decision of a contracting authority to be set aside pursuant to Article 2(1)(b) of that directive? 
         
         
         2.
          If the answer to the first question is in the negative: When balancing interests prior to deciding an application for interim measures, as required by Article 2(4) of 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, as amended by Directive 92/50/EEC
         of 18 June 1992, is the  
         body responsible for review procedures within the meaning of Article 2(8) of Directive 89/665/EEC entitled to take into account the prospects of success of an application
         for an unlawful decision of a contracting authority to be set aside pursuant to Article 2(1)(b) of that directive?
         
         
         
         19
            
         The national court also asked the Court to deal with the reference for preliminary ruling by way of an accelerated procedure,
         in accordance with Article 104a of the Rules of Procedure, on the ground that the questions arise in the course of interlocutory
         proceedings and concern the award of a public contract which is still under way, that the contracting authority wished to
         award as soon as possible, having regard to the fact that any delay in the award of the contract was likely to lead to a reduction
         in the radiological treatment capacity of two large Austrian hospitals. 
         
         
         20
            
         By decision of 20 November 2001 that request was rejected by the President of the Court, on the proposal of the Judge-Rapporteur,
         on the ground that the circumstances put forward by the national court did not establish that the questions referred for a
         preliminary ruling were matters of exceptional urgency. 
         The admissibility of the questions referred for a preliminary ruling
         
         21
            
         Relying on the Bundesvergabeamt's decision of 11 July 2001 to make a reference in other proceedings on the award of public
         contracts, registered at the Court Registry under number C-314/01 and currently pending before the Court, the Commission has
         expressed doubt as to the judicial character of the referring body, on the ground that it had acknowledged in that decision
         that its decisions  
         do not comprise directions to the contracting authority that are enforceable. In those circumstances, the Commission wishes to know whether the questions referred by the Bundesvergabeamt in the present
         proceedings are admissible, having regard to the case-law of the Court and in particular Case C-134/97  
          Victoria Film  [1998] ECR I-7023, paragraph 14, and Case C-178/99  
          Salzmann  [2001] ECR I-4421, paragraph 14, according to which 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.
         
         
         22
            
         In that regard, it must be observed, firstly, that Paragraph 116(4) of the BVergG indicates expressly that the Bundesvergabeamt,
         hearing an application for interim relief, may stay the award procedure as a whole, or only certain decisions of the contracting
         authority, or order other appropriate measures. 
         
         
         23
            
         Secondly, it is clear from Paragraph 116(6) that the orders made by the Bundesvergabeamt in the course of interlocutory proceedings
         are immediately enforceable, and that they are governed in that respect by the Law of 1991 on the enforcement of administrative
         decisions.   As the Commission has not put forward any argument to cast doubt on the binding nature of those orders there is no reason,
         having regard to the provisions of Paragraph 116(4) and (6) of the BVergG, to question the judicial character of the Bundesvergabeamt.
         
         
         25
            
         It follows that the questions referred by that body are admissible. 
         The questions referred for a preliminary ruling
         
         26
            
         By its two questions, which must be considered together, the national tribunal asks, essentially, whether it follows from
         Directive 89/665, and more particularly from Article 2(4), that when a body responsible for review procedures for the award
         of public contracts determines an application for interim relief, it is bound or, as the case may be, authorised to take account
         of the prospects of success of an application for annulment of the decision of the contracting authority based on the unlawfulness
         of that decision. 
         
         
         27
            
         Taking the view that the answer to those questions did not admit of any reasonable doubt the Court, in accordance with Article
         104(3) of the Rules of Procedure, informed the national tribunal that it intended to give judgment by reasoned order and invited
         the interested parties referred to in Article 23 of the EC Statute of the Court of Justice to submit observations on the matter.
         
         
         
         28
            
         Only the Commission submitted its observations within the time-limit. While it reiterated its doubts as to the admissibility
         of the questions referred, it expressed its agreement with the decision of the Court to give judgment by reasoned order. 
         
         
         29
            
         It must be observed that the prospects of success of the substantive action are not mentioned among the factors which the
         body responsible for review procedures for the award of public contracts must or may take account of when it determines an
         application for interim measures under Article 2(1)(a) of Directive 89/665, but that provision does not preclude them from
         being considered. Article 2(4) of the directive merely states that the Member States may provide that when considering whether
         to order interim measures, the body responsible may take into account the probable consequences of the measures for all interests
         likely to be harmed, as well as the public interest, and may decide not to grant such measures where their negative consequences
         could exceed their benefits. 
         
         
         30
            
         In the absence of specific Community rules governing the matter, it is therefore for the domestic legal system of each Member
         State to determine the rules governing the adoption of interim measures by the bodies responsible for review procedures for
         the award of public contracts, taking into account the purpose of Directive 89/665, which is to ensure that decisions taken
         by the contracting authority may be reviewed effectively and as rapidly as possible if there has been an infringement of Community
         law in the field of public procurement or of the national rules implementing that law.
         
         
         31
            
         However, according to settled case-law the Member States must ensure that the relevant national rules are not less favourable
         than those governing similar domestic actions (the principle of equivalence) and that they do not make it practically impossible
         or excessively difficult to exercise rights conferred by Community law (the principle of effectiveness) (see in particular
         to that effect Case C-92/00  
          HI  [2002] ECR I-5553, paragraph 67, Case C-62/00  
          Marks & Spencer  [2002] ECR I-6325, paragraph 34, and Case C-255/00  
          Grundig Italiana  [2002] ECR I-8003, paragraph 33). 
         
         
         32
            
         As regards the latter principle, it is plain that the fact that a national provision states that the body responsible for
         review procedures for public procurement is bound or, as the case may be, authorised to take account of the prospects of success
         of an application for a decision of a contracting authority to be set aside on the ground that it is unlawful is not such
         as to undermine the effectiveness of the rights conferred by the Community directives on the coordination of the procedures
         for the award of public contracts and, in particular, of the right to effective and rapid remedies laid down by Directive
         89/665, because such a national provision merely provides for the consideration, in each particular case, of the degree of
         likelihood of an alleged infringement of Community law in the field of public procurement or the national rules implementing
         that law. 
         
         
         33
            
         Therefore, the answer to the questions referred is that Article 2 of Directive 89/665 must be interpreted as meaning that
         it does not preclude the Member States from providing that when a body responsible for review procedures for the award of
         public contracts decides an application for interim measures, it is bound or authorised to take account of the prospects of
         success of an application for a decision of a contracting authority to be set aside on the ground that it is unlawful, so
         long as the national rules thus governing the adoption of those interim measures are not less favourable that those governing
         similar domestic actions and do not make it practically impossible or excessively difficult to exercise the rights conferred
         by Community law. 
         
         Costs
         34
            
         The costs incurred by the Austrian and French Governments and by the Commission of the European Communities, which have submitted
         observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main action, a step in
         the proceedings pending before the national tribunal, the decision on costs is a matter for that tribunal. 
         
         On those grounds, 
         
         
         
            
            THE COURT (Fourth Chamber),
         
         
         in answer to the questions referred to it by the Bundesvergabeamt by decision of 25 October 2001, hereby rules:
         Article 2 of 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, as amended
            by Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service
            contracts, must be interpreted as meaning that it does not preclude the Member States from providing that when a body responsible
            for review procedures for the award of public contracts decides an application for interim measures, it is bound or authorised
            to take account of the prospects of success of an application for a decision of a contracting authority to be set aside on
            the ground that it is unlawful, so long as the national rules thus governing the adoption of those interim measures are not
            less favourable than those governing similar domestic actions and do not make it practically impossible or excessively difficult
            to exercise the rights conferred by Community law.Luxembourg, 9 April 2003. 
         
         
         
                  R. Grass 
               
               
                  C.W.A. Timmermans  
               
            
         
         
         
                  Registrar
               
               
                  President of the Fourth Chamber
               
            
      
      
          1 –
            
             Language of the case: German.