Walter Tögel v Niederösterreichische Gebietskrankenkasse.
Date: 1998-09-24
14 By virtue of Article 168 of the Act concerning the conditions of accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded, of 24 June 1994 (OJ 1994 C 241, p. 21), Directive 92/50 was to be transposed into Austrian law by 1 January 1995. It is not disputed that transposition into national law occurred only on 1 January 1997, that is to say after the order for reference was made.
The main proceedings
20 In those circumstances, the Bundesvergabeamt stayed the proceedings and referred the following questions to the Court for a preliminary ruling:
`1. May an individual derive, from Article 1(1) and (2), Article 2(1) or any other provisions of Council Directive 89/665/EEC, 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, a specific right to have review proceedings conducted before authorities or courts which comply with the provisions of Article 2(8) of Directive 89/665/EEC, which right is so sufficiently precise and specific that, in the event of non-transposition of the directive in question by the Member State, an individual may successfully assert that legal right against that Member State in legal proceedings?
2. In conducting a review procedure on the basis of an individual's right, founded on Article 41 of Directive 92/50/EEC in conjunction with Directive 89/665/EEC, to the conduct of a review procedure, must a national court having the attributes of the Bundesvergabeamt disregard provisions of national law such as Paragraph 91(2) and (3) of the Bundesvergabegesetz, which confer on the Bundesvergabeamt powers of review only in the case of infringements of the Bundesvergabegesetz and regulations adopted thereunder, on the ground that those provisions preclude a review procedure from being conducted under the Bundesvergabegesetz for awards of contracts for services, and must such a national court conduct a review procedure in accordance with the fourth part of the Bundesvergabegesetz?
3(a). Are the services mentioned in the facts of the case (with reference to  Article 10 of Directive 92/50/EEC) to be classified as services coming under Annex I A, Category No 2 (Land transport services) and contracts for such services thus to be awarded in accordance with the provisions of Titles III and IV of the Directive, or are they to be classified as services coming under Annex I B to Directive 92/50/EEC (Health services) with the result that contracts for such services are to be awarded in accordance with the provisions of Articles 13 and 14, or do those services fall entirely outside the sphere of application of Directive 92/50/EEC?
3(b). Do the provisions of Articles 1 to 7 of Directive 92/50/EEC satisfy the preconditions laid down in paragraph 12 of the judgment in Case 41/74 Van Duyn v Home Office on the direct applicability of a Community directive, with the result that services coming under Annex 1 B to the Directive are to be awarded under the procedure therein mentioned or are the relevant provisions of the Directive for the services mentioned in Annex 1 A capable of fulfilling the preconditions laid down in the abovementioned case?
4.  Is there under Article 5 or other provisions of the EC Treaty, or under Directive 92/50/EEC, an obligation on the State to intervene in existing legal situations concluded for an indefinite period or for several years but which were not entered into in accordance with the abovementioned directive?'
The first and second questions
22 In that connection, it should be recalled first of all that in paragraph 40 of its judgment in Case C-54/96 Dorsch Consult Ingenieurgesellschaft v Bundesbaugesellschaft Berlin [1997] ECR I-4961 the Court held that it was for the legal system of each Member State to determine which court or tribunal has jurisdiction to hear disputes involving individual rights derived from Community law but that in each case the Member States must ensure that those rights are effectively protected. Subject to that proviso, it is not for the Court to involve itself in the resolution of questions of jurisdiction which may arise within the internal judicial system from the classification of certain legal situations based on Community law.
23 At paragraph 41 of that judgment the Court went on to declare that, although Article 41 of Directive 92/50 requires the Member States to adopt the measures necessary to ensure effective review in the field of public service contracts, it does not indicate which national bodies are to be the competent bodies for this purpose or whether these bodies are to be the same as those which the Member States have designated in the field of public works contracts and public supply contracts.
25   Health and social services   93
...   ...       ...'
10 According to the seventh recital in the preamble to Directive 92/50, Annexes I A and I B refer to the CPC nomenclature (common product classification) of the United Nations.
11 Article 1 of Council Regulation (EEC) No 3696/93 of 29 October 1993 on the statistical classification of products by activity (CPA) in the European Economic Community (OJ 1993 L 342, p. 1) provides:
`1. The purpose of this Regulation is to establish a classification of products by activity within the Community in order to ensure comparability between national and Community classifications and hence national and Community statistics.
2. ...
3. This Regulation shall apply only to the use of this classification for statistical purposes.'
12 According to Point 1 of Commission Recommendation 96/527/EC of 30 July 1996 on the use of the Common Procurement Vocabulary (CPV) for describing the subject-matter of public contracts (OJ 1996 L 222, p. 10), the contracting entities covered by the Community directives dealing with the award of public contracts are recommended to use the terms and codes of the Common Procurement Vocabulary (CPV) published in Supplement 169 to the Official Journal of the European Communities for 1996.
13 Under Austrian law, Directive 89/665 was transposed into national law by the Bundesgesetz über die Vergabe von Aufträgen (Federal Law on the Award of Public Contracts, BGBl. 462/1993), which entered into force on 1 January 1994.
14 By virtue of Article 168 of the Act concerning the conditions of accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded, of 24 June 1994 (OJ 1994 C 241, p. 21), Directive 92/50 was to be transposed into Austrian law by 1 January 1995. It is not disputed that transposition into national law occurred only on 1 January 1997, that is to say after the order for reference was made.
The main proceedings
15 Under national legislation the Austrian social security institutions are required to reimburse to insured persons the costs of transport incurred by them or by members of their families when they have had to call on medical assistance. Reimbursement includes the cost of transport within the country for transport to the nearest hospital for treatment or from the hospital to the patient's home and also, for outpatient treatment, to the nearest approved doctor or the nearest approved institution, reimbursement being made at the rates laid down by agreement.
16 As regards the transport of patients in the broad sense, a distinction is made between transport by ambulance with a duty doctor, the transport of injured and sick persons with a nurse and unaccompanied transport by ambulance without medical attendance.
17 The relationship between the social security institutions and the transporting undertakings are governed by private-law contracts which must afford insured persons and members of their families insured under them adequate access to the benefits provided for by the law and under agreements.
18 Thus, in 1984, the Niederösterreichische Gebietskrankenkasse entered into framework agreements with the Austrian Red Cross, regional section for Lower Austria, and the Austrian Federation of Samaritan Workers, for the provision of patient transport of all three types. Tariffs under these framework agreements are adjusted annually. Pursuant to these contracts, persons engaged in the transport of patients are not only required to undertake all transport on the ground, that is say transport accompanied by a duty doctor, the transport of injured and sick persons as well as unaccompanied transport by ambulance but must also coordinate and use dual-mode or multi-mode transport.
19 On 1 December 1992, the Bezirkshauptmannschaft Wien Umgebung (Chief Local Government Office for Vienna and District) granted Mr Tögel a licence to carry on a hire-car business, limited to the transport of injured and sick persons. The Niederösterreichische Gebietskrankenkasse repeatedly turned down the applicant's request for a direct-charging contract for that type of transport on the ground that that type of transport was adequately provided for under the two existing agreements. On 22 August 1996 Mr Tögel therefore applied to the Bundesvergabeamt for a declaration that the contract at issue concerned a service covered by Annex I A to Directive 92/50 and that, consequently, a public tender procedure should be carried out.
20 In those circumstances, the Bundesvergabeamt stayed the proceedings and referred the following questions to the Court for a preliminary ruling:
`1. May an individual derive, from Article 1(1) and (2), Article 2(1) or any other provisions of Council Directive 89/665/EEC, 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, a specific right to have review proceedings conducted before authorities or courts which comply with the provisions of Article 2(8) of Directive 89/665/EEC, which right is so sufficiently precise and specific that, in the event of non-transposition of the directive in question by the Member State, an individual may successfully assert that legal right against that Member State in legal proceedings?
2. In conducting a review procedure on the basis of an individual's right, founded on Article 41 of Directive 92/50/EEC in conjunction with Directive 89/665/EEC, to the conduct of a review procedure, must a national court having the attributes of the Bundesvergabeamt disregard provisions of national law such as Paragraph 91(2) and (3) of the Bundesvergabegesetz, which confer on the Bundesvergabeamt powers of review only in the case of infringements of the Bundesvergabegesetz and regulations adopted thereunder, on the ground that those provisions preclude a review procedure from being conducted under the Bundesvergabegesetz for awards of contracts for services, and must such a national court conduct a review procedure in accordance with the fourth part of the Bundesvergabegesetz?
3(a). Are the services mentioned in the facts of the case (with reference to  Article 10 of Directive 92/50/EEC) to be classified as services coming under Annex I A, Category No 2 (Land transport services) and contracts for such services thus to be awarded in accordance with the provisions of Titles III and IV of the Directive, or are they to be classified as services coming under Annex I B to Directive 92/50/EEC (Health services) with the result that contracts for such services are to be awarded in accordance with the provisions of Articles 13 and 14, or do those services fall entirely outside the sphere of application of Directive 92/50/EEC?
3(b). Do the provisions of Articles 1 to 7 of Directive 92/50/EEC satisfy the preconditions laid down in paragraph 12 of the judgment in Case 41/74 Van Duyn v Home Office on the direct applicability of a Community directive, with the result that services coming under Annex 1 B to the Directive are to be awarded under the procedure therein mentioned or are the relevant provisions of the Directive for the services mentioned in Annex 1 A capable of fulfilling the preconditions laid down in the abovementioned case?
4.  Is there under Article 5 or other provisions of the EC Treaty, or under Directive 92/50/EEC, an obligation on the State to intervene in existing legal situations concluded for an indefinite period or for several years but which were not entered into in accordance with the abovementioned directive?'
The first and second questions
21 By its first and second questions, which it is appropriate to examine together, the national court is asking essentially whether Article 1(1) and (2), Article 2(1), or any other provisions of Directive 89/665, must be interpreted as meaning that, if Directive 92/50 has not been transposed by the end of the period laid down for that purpose, the review bodies in the Member States with jurisdiction in regard to procedures for the award of public supply and public works contracts established under Article 2(8) of Directive 89/665 also have jurisdiction in regard to appeals in connection with procedures for the award of contracts for services.
22 In that connection, it should be recalled first of all that in paragraph 40 of its judgment in Case C-54/96 Dorsch Consult Ingenieurgesellschaft v Bundesbaugesellschaft Berlin [1997] ECR I-4961 the Court held that it was for the legal system of each Member State to determine which court or tribunal has jurisdiction to hear disputes involving individual rights derived from Community law but that in each case the Member States must ensure that those rights are effectively protected. Subject to that proviso, it is not for the Court to involve itself in the resolution of questions of jurisdiction which may arise within the internal judicial system from the classification of certain legal situations based on Community law.
23 At paragraph 41 of that judgment the Court went on to declare that, although Article 41 of Directive 92/50 requires the Member States to adopt the measures necessary to ensure effective review in the field of public service contracts, it does not indicate which national bodies are to be the competent bodies for this purpose or whether these bodies are to be the same as those which the Member States have designated in the field of public works contracts and public supply contracts.
24 However, it is undisputed that on 22 August 1996, the date on which Mr Tögel brought his application before the Bundesvergabeamt, Directive 92/50 had not been transposed into Austrian law. In fact, the Law giving effect to the directive entered into force only on 1 January 1997.
25 In view of those circumstances, the Court reiterated, at paragraph 43 of its judgment in Dorsch Consult, that the Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the EC Treaty 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. It followed that, when applying national law, whether adopted before or after the directive, the national court having to interpret that law must do so, as far as possible, in the light of the wording and purpose of the directive so as to achieve the result it has in view and thereby comply with the third paragraph of Article 189 of the EC Treaty (see the judgments in Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8; Case C-334/92 Wagner Miret [1993] ECR I-6911, paragraph 20; and in Case C-91/92 Faccini Dori [1994] ECR I-3325, paragraph 26).
26 At paragraph 44, the Court went on to point out that the question of the designation of a body competent to hear appeals in relation to public service contracts is relevant even where Directive 92/50 has not been transposed. Where a Member State has failed to take the implementing measures required or has adopted measures which do not conform to a directive, the Court has recognised, subject to certain conditions, the right of individuals to rely in law on a directive as against a defaulting Member State. Although this minimum guarantee cannot justify a Member State in absolving itself from taking in due time implementing measures sufficient to meet the purpose of each directive (see, in particular, the judgment in Case C-253/95 Commission v Germany [1996] ECR I-2423, paragraph 13), it may nevertheless have the effect of enabling individuals to rely, as against a Member State, on the substantive provisions of Directive 92/50.
27 Finally, at paragraph 45 of the judgment in Dorsch Consult, the Court reiterated that, if the relevant domestic provisions cannot be interpreted in conformity with Directive 92/50, the persons concerned, using the appropriate domestic law procedures, may claim compensation for the damage incurred owing to the failure to transpose the directive within the time prescribed (see, in particular, the judgment in Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94 Dillenkofer and Others [1996] ECR I-4845).
28 The reply to be given to the first and second questions must therefore be that neither Article 1(1) and (2), Article 2(1) nor any other provision of Directive 89/665 may be interpreted as meaning that, if Directive 92/50 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 for the award of public supply contracts and public works contracts, established under Article 2(8) of Directive 89/665, may also hear appeals 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 and the requirement that the rights of individuals must be protected effectively, the national court must determine whether the relevant provisions of its domestic law allow recognition of a right for individuals to bring an appeal in relation to awards of public service contracts.  In circumstances such as those arising in the present case, the national court must determine in particular whether such a right of appeal may be exercised before the same bodies as those established to hear appeals concerning the award of public supply contracts and public works contracts.
The third question
The first part of the third question
39 Consequently, CPC reference number 93 appearing in Category No 25 (Health and social services) in Annex I B, clearly indicates that this category relates solely to the medical aspects of health services governed by a public contract such as the one at issue in the main proceedings, to the exclusion of the transport aspects, which come under Category No 2 (Land transport services), which have the CPC reference number 712.
42 It must be recalled here that the Court has consistently held (see the judgment in Case 31/87 Beentjes v Netherlands State [1988] ECR 4635, paragraph 40) that whenever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied on by individuals against the State where that State fails to implement the directive in national law within the prescribed period or where it fails to implement it correctly.
44 It should be observed first of all here that the provisions of Title I, concerning the matters and persons covered by the directive, and of Title II, on the procedures applicable to contracts for the services listed in Annexes I A and I B, are unconditional and sufficiently precise to be relied on before a national court.
45 Under Articles 8 and 10, which form part of Title II, the awarding authorities are required, in unconditional and precise terms, to award public contracts for services in accordance with national procedures in conformity with the provisions of Titles III to VI in the case of services coming wholly or mainly under Annex I A and with the provisions of Articles 14 and 16 in the case of services coming wholly or mainly under Annex I B. Article 14 appears under Title IV whilst Article 16 appears under Title V.
46 As Advocate General Fennelly observes at paragraph 57 of his Opinion, the detailed provisions of Titles III to VI of the directive, on the choice of award procedures and the rules applicable to competitions, common technical and advertising rules, and participation and selection and award criteria, are, subject to exceptions and qualifications which are apparent from their terms, unconditional and sufficiently clear and precise to be relied on by service providers before national courts.
54 The reply to be given to the fourth question must therefore be that Community law does not require an awarding authority in a Member State to intervene, at the request of an individual, in existing legal situations concluded for an indefinite period or for several years where those situations came into being before expiry of the period for transposition of Directive 92/50.