CELEX: C2001/317/19
Language: en
Date: 2001-11-10 00:00:00
Title: Case C-315/01: Reference for a preliminary ruling by the Bundesvergabeamt (Austria) by order of 11 July 2001 in the case of GAT Gesellschaft für Abfallentsorgungs-Technik GmbH v Österreichische Autobahnen und Schnellstraßen AG (ÖSAG)

10.11.2001           EN                     Official Journal of the European Communities                                     C 317/11
2.  Is Directive 89/665, in particular Article 2(7) thereof, if        5.   If Question 4 is answered in the affirmative: does
    necessary in conjunction with Council Directive                         Article 2(7) of Directive 89/665, if necessary in conjunc-
    92/50/EEC (2) of 18 June 1992 relating to the coordi-                   tion with other provisions of Community law, give the
    nation of procedures for the award of public service                    review body the power in such a case to threaten
    contracts, in particular Articles 25 and 32(2)(c) thereof,              contracting authorities and the members of their execu-
    or any other provisions of Community law, in particular                 tive organs with, and to impose on them, such fines or
    having regard to the effet utile doctrine relating to the               fines and imprisonment by way of coercive penalties as
    interpretation of Community law, to be construed as                     are necessary to enforce their orders and are calculated in
    meaning that a provision in an invitation to tender which               accordance with judicial discretion, where the contracting
    prohibits subcontracting material parts of the service                  authorities and the members of their executive organs do
    concerned and, contrary to the case-law of the Court of                 not comply with the orders issued by the review body?
    Justice, in particular Case C-176/98 Holst Italia [1999]
    ECR I-8607, prevents the tenderer from using his contract
    with his subcontractor to prove that the services of a             (1) OJ 1989 L 395, p. 33.
    third party are actually available to him and which thus           (2) OJ 1992 L 209, p. 1.
    deprives him of his right to prove his own capability by
    relying on the services of a third party or to prove that he
    actually has available a third party’s services, is so clearly
    contrary to Community law that a contract concluded on
    the basis of such an invitation to tender is to be regarded
    as invalid, in particular where national law in any case
    provides that illegal contracts are invalid?
                                                                       Reference for a preliminary ruling by the Bundesverga-
                                                                       beamt (Austria) by order of 11 July 2001 in the case of
                                                                       GAT Gesellschaft für Abfallentsorgungs-Technik GmbH
                                                                       v Österreichische Autobahnen und Schnellstraßen AG
                                                                                                    (ÖSAG)
                                                                                                (Case C-315/01)
3.  Is Directive 89/665, in particular Article 2(7) thereof, or
    any other provision of Community law, in particular
                                                                                                (2001/C 317/19)
    having regard to the effet utile doctrine relating to the
    interpretation of Community law, to be construed as
    meaning that a contract concluded contrary to a decision           Reference has been made to the Court of Justice of the
    by a national review body within the meaning of                    European Communities by order of 11 July 2001 by the
    Article 2(8) of Directive 89/665 relating to the setting           Bundesvergabeamt (Austrian Federal Procurement Office),
    aside of a contracting authority’s decision not to cancel a        which was received at the Court Registry on 13 August 2001,
    contract award procedure is invalid, in particular where           for a preliminary ruling in the case of GAT Gesellschaft für
    national law in any case provides that immoral or illegal          Abfallentsorgungs-Technik GmbH v Österreichische Auto-
    contracts are void but does not provide any basis for the          bahnen und Schnellstraßen AG (ÖSAG) on the following
    effective and compulsory enforcement of the review                 questions:
    body’s decision against the contracting authority?
                                                                       1.   Is Article 2(8) of Council Directive 89/665/EEC (1) 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, or any other provision
                                                                            of that directive or any other provision of Community
                                                                            law to be interpreted as meaning that an authority
4.  Is Directive 89/665, in particular Article 2(1)(b) thereof,             responsible for carrying out review procedures within the
    if necessary in conjunction with Article 2(7), to be                    meaning of Article 1(1) of that directive, including the
    interpreted as meaning that where national law does                     exercise of the powers referred to in Article 2(1)(c)
    not otherwise provide any basis for the effective and                   thereof, is precluded from taking into account, of its own
    compulsory enforcement of the review body’s decision                    motion and independently of the submissions of the
    against the contracting authority, the review body has, by              parties to the review procedure, those circumstances
    virtue of the direct application of Article 2(1)(b) in                  relevant under the law governing contract award pro-
    conjunction with Article 2(7), the power to issue a                     cedures which the authority responsible for carrying out
    compulsory, enforceable order to the contracting auth-                  review procedures considers material to its decision in a
    ority to ensure that the unlawful decision is set aside,                review procedure?
    even though national law authorises the review body to
    issue only non-compulsory, non-enforceable orders to               2.   Is Article 2(1)(c) of Directive 89/665/EEC, if necessary
    set aside contracting authorities ‘decisions in tenderers’              considered in conjunction with other principles of Com-
    applications for review within the meaning of Article 1(1)              munity law, to be interpreted as meaning that an authority
    of Directive 89/665?                                                    responsible for carrying out review procedures within the
 ---pagebreak--- C 317/12              EN                     Official Journal of the European Communities                                       10.11.2001
     meaning of Article 1(1) of that directive, including the           Action brought on 24 August 2001 by Commission of the
     exercise of the powers referred to in Article 2(1)(c)                    European Communities against Italian Republic
     thereof, is precluded from dismissing an application by a
     tenderer that is indirectly aimed at obtaining damages,                                       (Case C-323/01)
     where the contract award procedure is already tainted by
     a material legal infringement attributable to a decision
     taken by the contracting authority, other than the decision                                   (2001/C 317/20)
     being contested by that tenderer, on the ground that if
     the contested decision had not been taken the tenderer             An action against the Italian Republic was brought before the
     would none the less have been harmed for other reasons?            Court of Justice of the European Communities on 24 August
                                                                        2001 by the Commission of the European Communities,
3.   If Question 1 is answered in the negative: Is Council              represented by Richard Wainwright and Roberto Amorosi,
     Directive 93/36/EEC (2) of 14 June 1993 coordinating               acting as Agents.
     procedures for the award of public supply contracts, in
     particular Articles 15 to 26 thereof, to be interpreted as         The applicant claims that the Court should:
     prohibiting a public contracting authority conducting
     contract award procedures from taking account of refer-            1.    Declare that, by failing to adopt and bring into force
     ences relating to the products offered by tenderers not as               within the prescribed period the laws, regulations or
     proof of the tenderers’ suitability but to satisfy an award              administrative provisions necessary to comply with Com-
     criterion, such that the fact that those references are given            mission Directive 98/101/EC (1) of 22 December 1998
     a negative evaluation would not exclude the tenderer                     adapting to technical progress Council Directive
     from the contract award procedure but would merely                       91/157/EEC (2) on batteries and accumulators containing
     result in the tender receiving a lower evaluation, for                   certain dangerous substances, the Italian Republic has
     example under a points system in which a poor evaluation                 failed to fulfil its obligations under that directive;
     of references might be offset by a lower price?
                                                                        2.    Order the Italian Republic to pay the costs.
4.   If Questions 1 and 3 are answered in the negative: Is it
     compatible with the relevant provisions of Community
     law, including Article 26 of Directive 93/36/EEC, the
     principle of equal treatment and the obligations of the            Pleas in law and main arguments
     Communities under international law for an award
     criterion to provide that product references are to be             The mandatory nature of the provisions of the third paragraph
     evaluated on the basis of the number of references alone,          of Article 249 and the first paragraph of Article 10 of the EC
     there being no substantive examination as to whether               Treaty requires Member States to adopt the measures necessary
     contracting authorities’ experiences of the product have           to transpose directives addressed to them into their domestic
     been good or bad, and, moreover, that only references              law before the expiry of the period prescribed for doing so.
     from the geographical area comprising the part of the              That period expired on 1 January 2000 without Italy having
     Alps within the European Union are to be taken into                brought into force the necessary provisions.
     account?
                                                                        (1) OJ 1999 L 1, p. 1.
5.   Is it compatible — with Community law, in particular               (2) OJ 1991 L 78, p. 38.
     the principle of equal treatment, for an award criterion to
     permit opportunities to inspect examples of the subject
     of the invitation to tender to receive a positive evaluation
     only if available within a 300 kilometre radius of the
     authority issuing the invitation to tender?
6.   If Question 3 is answered in the affirmative, or Question 4        Appeal brought on 29 August 2001 (by fax on 27 August
     or 5 answered in the negative: Is Article 2(1)(c) of               2001) by Telefon & Buch Verlagsgesellschaft mbH, against
     Directive 89/665/EEC, if necessary considered in conjunc-          the judgment delivered on 14 June 2001 by the Fourth
     tion with other principles of Community law, to be                 Chamber of the Court of First Instance of the European
     interpreted as meaning that if the contracting authority’s         Communities in Joined Cases T-357/99 and T-358/99
     infringement consists in imposing an unlawful award                between Telefon & Buch VerlagsgmbH and the Office for
     criterion, the tenderer will be entitled to damages only if        Harmonisation in the Internat Market (Trade Marks and
     he can actually prove that, but for the unlawful award                                        Designs) (OHIM)
     criterion, he would have submitted the best tender?
                                                                                                  (Case C-326/01 P)
(1) OJ 1989 L 395, p. 33.
                                                                                                   (2001/C 317/21)
(2) OJ 1993 L 199, p. 1.
                                                                        An appeal against the judgment delivered on 14 June 2001 by
                                                                        the Fourth Chamber of the Court of First Instance of the