CELEX: 62001CC0249
Language: en
Date: 2003-02-25 00:00:00
Title: Opinion of Mr Advocate General Mischo delivered on 25 February 2003. # Werner Hackermüller v Bundesimmobiliengesellschaft mbH (BIG) and Wiener Entwicklungsgesellschaft mbH für den Donauraum AG (WED). # Reference for a preliminary ruling: Bundesvergabeamt - Austria. # Public contracts - Directive 89/665/EEC - Review procedures concerning the award of public contracts - Article 1(3) - Persons to whom review procedures must be available. # Case C-249/01.

OPINION OF ADVOCATE GENERALMISCHO delivered on 25 February 2003 (1)
         Case C-249/01 Werner HackermüllervBundesimmobiliengesellschaft mbH (BIG) and WienerEntwicklungsgesellschaft mbH für den Donauraum AG (WED)(Reference for a preliminary ruling from the Bundesvergabeamt (Austria))
            ((Public contracts – Directive 89/665/EEC – Persons to whom review procedures are available))
            
      
         
      1.  The Bundesvergabeamt (Federal Public Procurement Office) (Austria) is seeking an interpretation from the Court of Article 1(3)
      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, 
      
         			(2)
         		 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 
      
         			(3)
         		 (
      Directive 89/665).
      
      2.  The Bundesvergabeamt is seeking in essence to ascertain whether the abovementioned provision should be understood as meaning
      that if a tenderer's bid is not eliminated by the contracting authority, but the review body finds in the course of the review
      procedure that the contracting authority would have been bound to eliminate it, the tenderer has been or risks being harmed
      by the infringement alleged by him.
       I ─ Legal background
      
      A ─ Community legislation
      
      3.  Article 1(1) and (3) of Directive 89/665 provides:  
      1.  The Member States shall take the measures necessary to ensure that, as regards contract award procedures falling within the
      scope of Directives 71/305/EEC, 77/62/EEC and 92/50/EEC, decisions taken by the contracting authorities may be reviewed effectively
      and, in particular, as rapidly as possible in accordance with the conditions set out in the following Articles, and, in particular,
      Article 2(7) on the grounds that such decisions have infringed Community law in the field of public procurement or national
      rules implementing that law. ...
      
      3.  The Member States shall ensure that the review procedures are available, under detailed rules which the Member States may
      establish, at least to any person having or having had an interest in obtaining a particular public supply or public works
      contract and who has been or risks being harmed by an alleged infringement. In particular, the Member States may require that
      the person seeking the review must have previously notified the contracting authority of the alleged infringement and of his
      intention to seek review.
      
      
      4.  Article 2(1), (4) and (6) of Directive 89/665 reads: 
      1.  The Member States shall ensure that the measures taken concerning the review procedures specified in Article 1 include provision
      for the powers to: 
      (a) take interim measures, at the earliest opportunity and by way of interlocutory procedures, 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.  
      ...
      
      4.  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.  The effects of the exercise of the powers referred to in paragraph 1 on a contract concluded subsequent to its award shall
      be determined by national law.Furthermore, except where a decision must be set aside prior to the award of damages, a Member State may provide that, after
      the conclusion of a contract following its award, the powers of the body responsible for the review procedures shall be limited
      to awarding damages to any person harmed by an infringement. ...
      
      
      B ─ National legislation
      
      5.  Directive 89/665 was transposed into Austrian law by the Bundesgesetz über die Vergabe von Aufträgen (Bundesvergabegesetz
      1997) (1997 Federal Public Procurement Law, BGBl. I, 1997/56,  
      the BVergG).  
      
      6.  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.  To preclude infringements of this Federal Law and of the regulations implementing it, the Bundesvergabeamt is authorised until
      the time of the award: (1) to adopt interim measures and (2) to set aside unlawful decisions of the contracting authority.
      
      3.  After the award of the contract or the close of the contract award procedure the Bundesvergabeamt is competent to determine
      whether, on grounds of infringement of this Federal Law or of any regulations issued under it, the contract has not been awarded
      to the best tenderer. ...
      
      
      7.  Paragraph 115(1) of the BVergG provides:Where an undertaking claims to have an interest in the conclusion of a contract within the scope of this Federal Law, it may
      apply for the contracting authority's decision in the contract award procedure to be reviewed on the ground of unlawfulness,
      provided that it has been or risks being harmed by the alleged infringement.
      
      8.  Under Paragraph II(2)C, point 40a, of the Einführungsgesetz zu den Verwaltungsverfahrensgesetzen 1991 (the 1991 introductory
      law to the laws relating to administrative procedures, BGBl. 1991/50), the Allgemeines Verwaltungsverfahrensgesetz 1991 (1991
      General law on administrative procedure, BGBl. 1991/51,  
      the AVG) is applicable to the Bundesvergabeamt's administrative procedure.
       II ─ The main proceedings
      
      9.  Bundesimmobiliengesellschaft mbH (BIG) together with Wiener Entwicklungsgesellschaft mbH für den Donauraum AG (WED) (
      the defendants) invited tenders for a procedure in several stages to select architectural designs and decision parameters in order to award
      general planning contracts for building the new Engineering Faculty for the Technical University in Vienna. The first stage
      of the procedure involved a competition designed to be an  
      open search for interested parties to identify ideas.
      
      10.  Several interested parties, including the architect and qualified engineer, Werner Hackermüller, and the company, Dipl.-Ing.
      Hans Lechner-ZT GmbH (
      Lechner), replied to the invitation to tender and submitted projects. During the second stage of the procedure, the selection, the
      Beratungsgremium (the advisory panel) recommended pursuing the procedure in the short term with Lechner. By letter of 10 February
      1999, the four other tenderers accepted for the negotiation procedure, including Mr Hackermüller, were informed that the Beratungsgremium
      had not recommended implementation of their projects in its decision of 8 February 1999.
      
      11.  On 29 March 1999 Mr Hackermüller applied to the Bundesvergabeamt for institution of a review procedure pursuant to Paragraph
      113(2) of the BVergG and requested inter alia that the Bundesvergabeamt should set aside (1) the decision of 8 February 1999
      in which the Beratungsgremium and/or the defendants accepted the bid of a rival tenderer as the best tender and recommended
      that the selection procedure should be pursued with the rival tenderer in the short term, and (2) the decision by which the
      selection was made without regard to the criteria laid down in the invitation to tender.
      
      12.  By decision of 31 May 1999 the Bundesvergabeamt dismissed both Mr Hackermüller's applications on the grounds that he did not
      have  
       locus standi  because his bid should have been eliminated in the first stage of the procedure, under Paragraph 52(1), subparagraph 8, of
      the BVergG.
      
      13.  In support of its decision, the Bundesvergabeamt explained first of all that under Paragraph 115(1) of the BVergG a trader
      may apply for review only if he risks harm or some other disadvantage. It also pointed out that under Paragraph 52(1), subparagraph 8,
      of the BVergG the awarding body must, before selecting the successful bid, eliminate immediately, on the basis of the results
      of its examination of the bids, those which do not comply with the conditions of the invitation to tender or are incomplete
      or incorrect, if those errors have not been, or cannot be, rectified.
      
      14.  The Bundesvergabeamt went on to point out that, in the present case, as regards elimination of a project from the award procedure,
      point 1.6.7 of the invitation to tender expressly refers to Paragraph 36(4) of the Wettbewerbsordnung der Architekten (Competition
      rules for architects,  
      the WOA), which provides that, where there is a ground for exclusion under Paragraph 8 of the WOA, the project in question must be
      rejected, and that Paragraph 8(1)(d) eliminates from participation in architectural competitions, among others, persons who
      include in the portfolio information enabling the author to be identified.
      
      15.  Finally, having established that Mr Hackermüller had met the condition for elimination contained in Paragraph 8(1)(d) of the
      WOA by giving his name under the heading  
      proposed organisation of overall planning, so that his project should have been eliminated under the provisions of Paragraph 52(1), subparagraph 8, of the BVergG in
      conjunction with Paragraph 36(4) of the WOA, the Bundesvergabeamt concluded that Mr Hackermüller's project could no longer
      be considered for the contract and that since he could not be harmed by any potential infringements of the principle of the
      lowest tenderer and the rules of the selection procedure Mr Hackermüller had no  
       locus standi  to claim the infringements alleged in his applications.
      
      16.  On 7 July 1999 Mr Hackermüller brought an action for annulment of the Bundesvergabeamt's decision of 31 May 1999 before the
      Verfassungsgerichtshof (Constitutional Court) (Austria). In its judgment of 14 March 2001 (B 1137/99-9) the Verfassungsgerichtshof,
      referring to an earlier judgment of 8 March 2001 (B 707/00), held that, in view of the broad interpretation that should be
      given, according to the Court's case-law, 
      
         			(4)
         		 to the concept of the capacity to instigate a review procedure under Article 1(3) of Directive 89/665, it was questionable
      to interpret the conditions for making an application under Article 115(1), in conjunction with Article 52(1), of the BVergG
      as meaning that a tenderer who was not in fact eliminated by the contracting authority may be eliminated from the review procedure
      by the review body refusing his application for review if that body assumes on a preliminary basis that there is a ground
      for elimination of the tenderer. It therefore annulled the Bundesvergabeamt's contested decision for breach of the constitutional
      right to a procedure before the appropriate court, since the Bundesvergabeamt had been required, under the third paragraph of
      Article 234 EC, to refer a question on that subject to the Court of Justice for a preliminary ruling.
       III ─ The questions  
      
      17.  It was in those circumstances that the Bundesvergabeamt decided, by order of 25 June 2001, to refer the following questions
      to the Court: 
      1.  Is Article 1(3) of Council Directive 89/665/EEC of 21 December 1989 to be interpreted as meaning that any person seeking the
      award of a specific public contract is entitled to institute a review procedure?
      
      2.  In the event that the answer given to Question 1 is no:Is the abovementioned provision to be understood as meaning that, if a tenderer's bid is not eliminated by the contracting
      authority, but the review body finds in the course of the review procedure that the contracting authority would have been
      bound to eliminate it, the tenderer has been or risks being harmed by the infringement alleged by him ─ in this case the finding
      by the contracting authority that a rival tenderer submitted the best bid ─ and that he must therefore have the right to bring
      a review procedure?
      
       IV ─ Analysis
      
      A ─ Admissibility of the questions referred by the Bundesvergabeamt  
      
      18.  As a preliminary, it is necessary to consider an issue which was addressed in a recent judgment, 
      
         			(5)
         		 which is whether the Bundesvergabeamt constitutes a court or tribunal within the meaning of Article 234 EC.
      
      19.  That issue was raised in particular by the Commission in  
       Swoboda , cited above, following the order for reference from the Bundesvergabeamt of 11 July 2001 in  
       Siemens and Arge Telekom & Partner , 
      
         			(6)
         		 in which the Bundesvergabeamt acknowledged that its decisions did not contain any  
      binding, enforceable directions addressed to the contracting authority. 
      
         			(7)
         		20.  
      
      In
         
        Swoboda , cited above, a case in which the Bundesvergabeamt was exercising its powers during the period  
       after  the award of the contract, the Court held that it was a court within the meaning of Article 234 EC.
      
      
      
      
      
      21.  In paragraphs 27 and 28 of  
       Swoboda  the Court held that: ... the main case relates to the period after the award of the contract. However, it is common ground that in Austrian law
      both the parties and the civil courts which are seised of a claim in damages during that time are bound in any case by the
      findings of the Bundesvergabeamt. In those circumstances, the binding nature of the decision of the Bundesvergabeamt in the main case cannot reasonably be called
      into question.
      
      22.  The issue now is whether that conclusion also applies in the present case, in which the Bundesvergabeamt is exercising its
      powers during the period  
       before  the award of the contract.
      
      23.  I am of the view that the answer is indisputably yes.
      
      24.  Unlike the period after the award of the contract, during which the Bundesvergabeamt has jurisdiction under Paragraph 113(3)
      of the BVergG to  
       determine  whether ... the contract had not been awarded to the best bidder ..., the period before the contract was awarded is different because the Bundesvergabeamt has jurisdiction under Paragraph 113(2)
      of the BVergG  
      ... (1) to lay down interim measures and (2) to set aside unlawful decisions of the contracting authority.
      
      25.  If the power to  
      determine is of a binding nature, all the more so, it seems to me, are the powers to lay down interim measures and to set aside unlawful
      decisions.
      
      26.  The Bundesvergabeamt is therefore a court within the meaning of Article 234 EC. In the light of the above, the questions referred
      by the Bundesvergabeamt for a preliminary ruling must be declared admissible. 
      
      B ─ First question  
      
      27.  In the first question the Bundesvergabeamt is seeking to ascertain whether Article 1(3) of Directive 89/665 is to be interpreted
      as meaning that any person seeking the award of a specific public contract is entitled to institute a review procedure.
      
      28.  Mr Hackermüller suggests that the answer to that question should be yes, because in his opinion, anyone eliminated from the
      tendering procedure is harmed.
      
      29.  However, the defendants, the Austrian and Italian Governments, and the Commission suggest that the answer to the first question
      should, in essence, be no.
      
      30.  I support their view.
      
      31.  It is clear from the wording of Article 1(3) of Directive 89/665 that review procedures must be  
      available ... at least to any person having or having had an interest in obtaining a particular public supply or public works
      contract  
       and  who has been or risks being harmed by an alleged infringement. 
      
         			(8)
         		
      32.  Directive 89/665 therefore permits Member States to make access to review procedures subject to two cumulative conditions,
      namely, (1) the tenderer must have an interest in obtaining a public works contract and (2) the tenderer must have been or
      have risked being harmed.
      
      33.  The Commission is therefore right to consider that  
      mere interest in obtaining a contract is insufficient on its own.
      
      34.  That interpretation is moreover corroborated, as the Austrian Government rightly points out, by the preparatory documents
      for Directive 89/665.
      
      35.  Although the Commission's original proposal for a Council Directive 87/C 230/05 coordinating the laws, regulations and administrative
      provisions relating to the application of Community rules on procedures for the award of public supply and public works contracts,
      submitted by the Commission on 1 July 1987 
      
         			(9)
         		 made no provision regarding the standing of a person entitled to institute a review procedure, Article 1 of the amended proposal
      submitted on 25 November 1988 
      
         			(10)
         		 provided that the review procedure should be available to  
      any contractor or supplier taking part in a procedure for the award of a public supply or public works contract, or any third
      person entitled to tender for such an award ....
      
      36.  As that wording was not adopted in Directive 89/665, it must be inferred that there was a deliberate choice on the part of
      the Council to enable Member States to make access to review procedures subject to the two conditions mentioned above.
      
      37.  I therefore suggest that the answer to the first question should be that Article 1(3) of Directive 89/665 must be interpreted
      as meaning that review procedures must be available to any person having or having had an interest in obtaining a public works
      contract provided that person has also been or risks being harmed by the alleged infringement.
      
      C ─ Second question
      
      38.  Since I propose that the answer to the first question should be no, I must now also consider the second question. In that
      question the Bundesvergabeamt is seeking to ascertain whether Article 1(3) of Directive 89/665 is to be understood as meaning
      that, if a tenderer's bid is not eliminated by the contracting authority, but the review body finds in the course of the review
      procedure that the contracting authority would have been bound to eliminate it, the tenderer has been or risks being harmed
      by the infringement alleged by him ─ in this case the finding by the contracting authority that a rival tenderer submitted
      the best bid ─ and that he must therefore have the right to bring a review procedure.
      
      39.  Mr Hackermüller considers that if the answer to the first question is no the answer to the second question should at any event
      be yes, otherwise the review procedure will be unavailable whenever a tenderer is eliminated by the contracting authority
      for any reason.
      
      40.  However, the defendants, the Austrian Government and the Commission propose that the answer should be no. The observations
      of the Italian Government may be interpreted as meaning that that government also proposes that the answer should be no if
      the Bundesvergabeamt may be regarded as a court.
      
      41.  Those interveners rely in that regard on the purpose of the review procedure, the effect of Directive 89/665 and the principle
      of equal treatment, which preclude an applicant from being awarded the contract or damages despite his own infringement of
      the invitation to tender or the provisions governing public works contracts.
      
      42.  It should be made clear first of all that in its decision of 31 May 1999 the Bundesvergabeamt held that Mr Hackermüller had
      no  
       locus standi  because his bid should have been eliminated in the first stage of the procedure, under Paragraph 52(1), subparagraph 8, of
      the BVergG. 
      
         			(11)
         		
      43.  In its question the Bundesvergabeamt is therefore seeking, in substance, to ascertain whether Directive 89/665, and in particular
      Article 1(3) thereof, precludes such a rule of national law which it is applying.
      
      44.  As the Austrian Government rightly notes in its written observations,  
      ... the review directive does not contain any provision concerning the assessment criteria which the review body should apply.
      ... It therefore falls to Member States to adopt appropriate provisions, which must unquestionably comply with the general
      principles of public works contract law such as transparency and non-discrimination. Nor should such provisions conflict with
      the purpose of the review directive ....
      
      45.  Similarly, the Court has held on a matter that was not specifically governed by Directive 89/665, namely determining the decisive
      moment for the purposes of assessing the legality of a decision withdrawing an invitation to tender, that it is for the domestic
      legal system of each Member State to determine that moment  
      ... provided that the relevant national rules are not less favourable than those governing similar domestic actions (principle
      of equivalence) and that they do not make it practically impossible or excessively difficult to exercise rights conferred
      by Community law (principle of effectiveness) (see, by analogy, Case C-390/98  
       Banks   v  
       Coal Authority and Secretary of State for Trade and Industry  [2001] ECR I-6117, paragraph 121 and Case C-453/99  
       Courage and Crehan  [2001] ECR I-6297, paragraph 29). 
      
         			(12)
         		
      46.  The question which arises is therefore whether the abovementioned rule used by the Bundesvergabeamt in its decision of 31
      May 1999 does or does not make it practically impossible or excessively difficult to exercise rights conferred by Community
      law. 
      
         			(13)
         		
      47.  In that regard, I should like to refer to a point raised in the Verfassungsgerichtshof's judgment of 8 March 2001 
      
         			(14)
         		 which, in the words of the Austrian Government, is as follows:  
       ... there is some uncertainty as to whether it is permissible under Community law ─ as stated in legal literature ─ to  
      reduce legal protection for the tenderer in the main case  
       since he has no remedy against the decision to eliminate him taken by the Bundesvergabeamt instead of the contracting authority . 
      
         			(15)
         		
      48.  If it were true that as a result of the criterion in question the tenderer did not have any remedy against a decision which
      proves to be a decision eliminating him, I should indeed take the view that that criterion makes it excessively difficult
      to assert the rights conferred under Community law and, in particular, Directive 89/665.
      
      49.  There is indeed no doubt that a decision excluding a tenderer constitutes a decision within the meaning of Article 1(1) of
      Directive 89/665 against which it should be possible to institute a review procedure.
      
      50.  The Court has consistently held that the provision in Article 1(1) of Directive 89/665 does not lay down any restriction with
      regard to the nature and content of the decisions referred to therein. 
      
         			(16)
         		 In his Opinion of 7 February 2002 in  
       Santex , 
      
         			(17)
         		 Advocate General Alber inferred from this that an elimination decision constitutes a decision against which review, within
      the meaning of Directive 89/665, should be possible. 
      
         			(18)
         		
      51.  Is it correct to state, however, in a situation such as that in the main case that  
      the tenderer has no remedy against the decision to eliminate him taken by the Bundesvergabeamt instead of the contracting
      authority?
      
      52.  In my view everything hangs on whether the review body has come to the conclusion that the tenderer should have been eliminated
      following an adversarial procedure, that is to say, after the tenderer has been given the opportunity to express his views
      on the grounds for possible elimination. 
      
      53.  It is clear from Article 2(8) of Directive 89/665, which states that  
      ... the independent body [is to] take its decisions following a procedure in which both sides are heard ..., that such a procedure constitutes an essential feature of a review procedure within the meaning of Directive 89/665.
      
      54.  However, even if the review body reaches the abovementioned conclusion following a procedure in which both sides are heard,
      there remains the question whether the Bundesvergabeamt is entitled to raise of its own motion a plea of infringement of a
      requirement such as that of anonymity.
      
      55.  In that regard, it seems to me to be beyond dispute that if, hypothetically, the contracting authority had first accepted
      Mr Hackermüller's bid and if another tenderer, being aware that Mr Hackermüller may have infringed the requirement of anonymity,
      had then instituted proceedings for infringement by the contracting authority of the rules governing public procurement, the
      Bundesvergabeamt could have decided that Mr Hackermüller should have been eliminated from the tendering procedure  
       even though the contracting authority had not decided to do so earlier. 
      
      56.  The only difference between that situation and the situation in the main proceedings therefore lies in the fact that in the
      first case the plea of infringement of the rule of anonymity is raised by one of the parties, whilst in the second case it
      is raised by the review body of its own motion.
      
      57.  In that regard I share the view expressed by Advocate General Geelhoed in his Opinion of 10 October 2002 in GAT 
      
         			(19)
         		 that  
      ... Directive 89/665 ... does not preclude an authority responsible for carrying out review procedures ... from taking relevant
      circumstances into account of its own motion and independently of the submissions of the parties. 
      
         			(20)
         		
      58.  This approach seems to me moreover to be in accordance both with the purpose of Directive 89/665 and with the principle of
      equal treatment for all tenderers.
      
      59.  As regards that purpose,  
      ... Article 1(1) of Directive 89/665 requires the Member States to establish  
       effective review procedures that are as rapid as possible  to ensure compliance with Community directives on public procurement. 
      
         			(21)
         		
      60.  It appears to me to be contrary to that objective of having effective and rapid review procedures if, in a situation such
      as that in the present case, the review body is required to wait until a problem regarding the legality of the contract, which
      it discovers itself, is referred to it by one of the parties.
      
      61.  Equal treatment of all tenderers, which is a principle relating to the very essence of the public procurement directives, 
      
         			(22)
         		 means that all tenderers are entitled to have their tender, together with those of the other tenderers, dealt with in accordance
      with the terms of the invitation to tender and the rules on public procurement.
      
      62.  A tenderer cannot, therefore, be awarded a contract if he himself has infringed the terms of the invitation to tender or the
      rules applying to public procurement. As Mr Hackermüller pointed out at the hearing, the fact that other tenderers may also
      have committed infringements makes no difference since a tenderer cannot rely on the fact that other tenderers have benefited
      from an infringement in order to argue that he is a victim of discrimination.
      
      63.  Moreover, the fact that the review body should be able to raise such a plea of infringement of its own motion seems all the
      more justified with regard to the principle of equal treatment since, as the Austrian Government rightly observes, the tenderers
      are usually unaware of grounds for excluding any of their competitors from the contract.
      
      64.  I am therefore of the view that a rule of national law under which an appellant has no  
       locus standi  on the ground that his bid should already have been eliminated by the contracting authority does not make it practically
      impossible or excessively difficult to exercise rights conferred by Community law since the appellant has had the opportunity
      beforehand to express his views on the alleged grounds for elimination. 
      
      65.  However, if he has not been given an opportunity to express his views, the decision of the review body would in fact amount
      to a decision to eliminate him without the opportunity for review, which would be contrary to Directive 89/665.
      
      66.  I therefore suggest that the answer to the second question should be that Article 1(3) of Directive 89/665 does not preclude
      a tenderer being considered not to have been harmed by the infringement alleged by him ─ in this case the finding by the contracting
      authority that a rival tenderer submitted the best bid ─ if that tenderer's bid has not been eliminated by the contracting
      authority, but the review body finds in the course of the review procedure that the contracting authority would have been
      bound to eliminate it, provided the grounds for elimination relied upon as against the tenderer have been the subject of a
      procedure in which both sides were heard.
        V ─ Conclusion
      
      67.  In the light of the foregoing I propose the following answers:
      
      
      ─
         to the first question: 
      
      Article 1(3) 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 the review procedures must be available to any person having or having had
      an interest in obtaining a public works contract provided that person has also been or risks being harmed by the alleged infringement.
      
      
      ─
         to the second question: 
      
      Article 1(3) of Directive 89/665, as amended by Directive 92/50, does not preclude a tenderer being considered not to have
      been harmed by the infringement alleged by him ─ in this case the finding by the contracting authority that a rival tenderer
      submitted the best bid ─ if that tenderer's bid has not been eliminated by the contracting authority, but the review body
      finds in the course of the review procedure that the contracting authority would have been bound to eliminate it, provided
      the grounds for exclusion relied upon as against the tenderer have been the subject of a procedure in which both sides were
      heard.
      
       1 –
         
           Original language: French. 
      
      2 –
         
         OJ 1989 L 395, p. 33. 
      
      3 –
         
         OJ 1992 L 209, p. 1.
      
      4 –
         
         See in particular Case C-54/96  
             Dorsch Consult  [1997] ECR I-4961, paragraph 46, and Case C-81/98  
             Alcatel Austria and Others  [1999] ECR I-7671, paragraphs 34 and 35.
         
      
      5 –
         
         See Case C-411/00 [2002] ECR I-10567, the Opinion of Advocate General Léger in Case C-44/96  
             Mannesmann Anlagenbau Austria and Others  [1998] ECR I-73, my Opinion in  
             Swoboda , cited above, and the Opinion of Advocate General Geelhoed in Case C-315/01 pending before the Court of Justice.
         
      
      6 –
         
         C-314/01, pending before the Court
      
      7 –
         
         . Swoboda , cited above, paragraph 25.
         
      
      8 –
         
         Emphasis added.
      
      9 –
         
         OJ 1987 C 230, p. 6.
      
      10 –
         
         OJ 1989 C 15, p. 8.
      
      11 –
         
         See point 12 above.
      
      12 –
         
         Case C-92/00  
             HI  [2002] ECR I-5553, paragraph 67. See, to the same effect, Case C-470/99  
             Universale-Bau  [2002] ECR I-11617, paragraph 72.
         
      
      13 –
         
         It is assumed that there is no difference in treatment between reviews within the meaning of Directive 89/665 on the one hand
            and similar domestic reviews on the other.
         
      
      14 –
         
         See point 16 above.
      
      15 –
         
         Emphasis added.
      
      16 –
         
         See  
             Alcatel Austria and Others , cited above, paragraph 35 and  
             HI , cited above, paragraph 49.
         
      
      17 –
         
         Case C-327/00, pending before the Court.
      
      18 –
         
         See points 80 to 86 of Advocate General Alber's Opinion, cited above.
      
      19 –
         
         Case C-315/01, pending before the Court.
      
      20 –
         
         Point 67, suggested answer 1(a), of the abovementioned Opinion of Advocate General Geelhoed.
      
      21 –
         
         . Alcatel Austria and Others , cited above, paragraph 34. See also  
             HI , cited above, paragraph 52, and  
             Universale-Bau , cited above, paragraph 74.
         
      
      22 –
         
         Case C-513/99  
             Concordia Bus Finland  [2002] ECR I-7213, paragraph 81.