Koppensteiner GmbH v Bundesimmobiliengesellschaft mbH.
Date: 2005-06-02
25. The Court observes that it is solely for the national courts before which actions are brought, and which must bear the responsibility for the subsequent judicial decisions, to determine in the light of the special features of each case both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they submit to the Court. Consequently, since the questions referred involve the interpretation of Community law, the Court is, in principle, obliged to give a ruling (see, inter alia, Case C-373/00 Adolf Truley [2003] ECR I-1931, paragraph 21).
26. Although the Austrian Government and BIG have rightly noted that the Court must decline to rule on a question referred for a preliminary ruling where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose or where the problem is hypothetical (see, inter alia, Adolf Truley , cited above, paragraph 22), it is not obvious that the questions asked in this case have such characteristics.
29. Before examining the questions, which should be dealt with together, the Court refers to the judgment in HI , cited above, in which it stated that:
– the decision to withdraw an invitation to tender for a public procurement contract is one of those decisions in relation to which Member States are required under Directive 89/665 to establish review procedures for annulment, for the purposes of ensuring compliance with the rules of Community law on public procurement contracts and national rules implementing that law (paragraph 54);
– the full attainment of the objective pursued by Directive 89/665 would be compromised if it were lawful for contracting authorities to withdraw an invitation to tender for a public service contract without being subject to the judicial review procedures designed to ensure that the directives laying down substantive rules concerning public procurement and the principles underlying those directives are genuinely complied with (paragraph 53).
32. A national court before which a tenderer applies for a decision to withdraw an invitation to tender to be set aside inasmuch as that decision infringes Community law, and which cannot rule on the application under national law, is therefore faced with the question whether, and if so, under what circumstances, it is required under Community law to declare that such an application for annulment is admissible.
33. The Member States’ obligation under a directive to achieve the result prescribed by the directive and their duty under Article 10 EC to take all appropriate measures, whether general or particular, to ensure fulfilment of that obligation is binding on all the authorities of Member States, including, for matters within their jurisdiction, the courts (see, inter alia, Case C-258/97 HI  [1999] ECR I-1405, paragraph 25).
34. Although it is for the legal order of each Member State to designate the review bodies in relation to the award of public procurement contracts competent to decide disputes which affect rights of individuals derived from Community law (see, inter alia, Case C-76/97 Tögel [1998] ECR I-5357, paragraph 28, and Case C-81/98 Alcatel Austria and Others [1999] ECR I-7671, paragraph 49), such a question of jurisdiction does not arise in the case in the main proceedings.
35. In this case it is not disputed that under the applicable national law the Bundesvergabeamt has jurisdiction to hear applications for review relating to ‘decisions’ within the meaning of Article 1(1) of Directive 89/665 taken by contracting authorities in procedures for the award of public service contracts.
36. In addition, the national court stated (see paragraph 20 of this judgment) that the applicable national legislation precludes the examination and, where appropriate, the setting aside in review proceedings before the Bundesvergabeamt of decisions which withdraw an invitation to tender after the opening of tenders in an open contract award procedure.
37. As stated in paragraph 30 of this judgment, the Court has already held that precluding that possibility is contrary to Articles 1(1) and 2(1)(b) of Directive 89/665.
38. Those provisions of Directive 89/665 are unconditional and sufficiently clear to create rights for individuals on which they may rely, where necessary, against contracting authorities such as BIG.
39. In those circumstances, the court or tribunal having jurisdiction is required to disapply national rules which prevent compliance with the obligation arising from Articles 1(1) and 2(1)(b) of Directive 89/665.
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