Gesellschaft für Abfallentsorgungs-Technik GmbH (GAT) v Österreichische Autobahnen und Schnellstraßen AG (ÖSAG).
Date: 2003-06-19
25.  On the basis of the order for reference made by the Bundesvergabeamt on 11 July 2001 in another case concerning public procurement, registered at the Court Registry under number C-314/01 and currently pending before the Court, the Commission expresses doubts as to the judicial nature of the body making the reference on the ground that it acknowledged in the order that its decisions   "do not contain binding, enforceable directions addressed to the contracting authority"  .  In those circumstances, the Commission has doubts as to the admissibility of the questions referred for a preliminary ruling by the Bundesvergabeamt in the present proceedings in the light of the case-law of the Court, 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 or tribunal 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.
37.  Where such questions, which the Bundesvergabeamt considers necessary to enable it to determine the existence of illegality, concern the interpretation of Community law they cannot be declared inadmissible (see to this effect, inter alia, Case C-379/98   PreussenElektra   [2001] ECR I-2099, paragraph 38, and Case C-153/00   Der Weduwe   [2002] ECR I-11319, paragraph 31).
44.  In that regard, it is appropriate to recall that, as is apparent from the first and second recitals in the preamble, Directive 89/665 is intended to strengthen the existing mechanisms, both at national and Community levels, to ensure the effective application of Community directives relating to public procurement, in particular at a stage when infringements can still be remedied.  To that effect, Article 1(1) of that directive requires Member States to guarantee that unlawful decisions of contracting authorities can be subjected to effective review which is as swift as possible (see, in particular, Case C-81/98   Alcatel Austria and Others   [1999] ECR I-7671, paragraphs 33 and 34, and Case C-470/99   Universale-Bau and Others   [2002] ECR I-11617, paragraph 74).
45.  However, Directive 89/665 lays down only the minimum conditions to be satisfied by the review procedures established in domestic law to ensure compliance with the requirements of Community law concerning public contracts (see, in particular, Case C-327/00   Santex   [2003] ECR I-1877, paragraph 47).
46.  If there is no specific provision governing the matter, it is therefore for the domestic law of each Member State to determine whether, and in what circumstances, a court responsible for review procedures may raise   ex proprio motu   unlawfulness which has not been raised by the parties to the case brought before it.
52.  Firstly, as is apparent from the case-law of the Court, Article 1(1) of Directive 89/665 applies to all decisions taken by contracting authorities which are subject to the rules of Community law on public procurement (see inter alia Case C-92/00   HI   [2002] ECR I-5553, paragraph 37, and Case C-57/01   Makedoniko Metro and Michaniki   [2003] ECR I-1091, paragraph 68) and makes no provision for any limitation as regards the nature and content of those decisions (see inter alia the judgments cited above in   Alcatel Austria  , paragraph 35, and   HI  , paragraph 49).
59.  According to the scheme of Directive 93/36, in particular Title IV, the examination of the suitability of contractors to deliver the products which are the subject of the contract to be awarded and the awarding of the contract are two different operations in the procedure for the award of a public works contract.  Article 15(1) of Directive 93/36 provides that the contract is to be awarded after the supplier's suitability has been checked (see to this effect, regarding public works contracts, Case 31/87   Beentjes   [1988] ECR 4635, paragraph 15).
60.  Even though Directive 93/36, which, according to the fifth and sixth recitals, is intended to achieve the coordination of national procedures for the award of public supply contracts while taking into account, as far as possible, the procedures and administrative practices in force in each Member State, does not rule out the possibility that examination of the tenderer's suitability and the award of the contract may take place simultaneously, the two procedures are governed by different rules (see to this effect   Beentjes  , cited above, paragraph 16).
61.  Article 15(1) of the directive provides that the suitability of tenderers is to be checked by the contracting authority in accordance with the criteria of economic and financial standing and of technical knowledge or ability referred to in Articles 22, 23 and 24 of the directive.  The purpose of these articles is not to delimit the power of the Member States to fix the level of financial and economic standing and technical knowledge required in order to take part in procedures for the award of public works contracts, but to determine the references or evidence which may be furnished in order to establish the suppliers' financial or economic standing and technical knowledge or ability (see to this effect   Beentjes  , cited above, paragraph 17).
63.  As is apparent from the wording of that provision, in particular the use of the expression   "e.g."  , the criteria which may be accepted as criteria for the award of a public contract to what is the most economically advantageous tender are not listed exhaustively (see to this effect, regarding public works contracts, Case C-19/00   SIAC Construction   [2001] ECR I-7725, paragraph 35, and, regarding public service contracts, Case C-513/99   Concordia Bus Finland   [2002] ECR I-7213, paragraph 54).
64.  However, although Article 26(1) of Directive 93/36 leaves it to the contracting authority to choose the criteria on which it intends to base its award of the contract, that choice may relate only to criteria aimed at identifying the offer which is the most economically advantageous (see to this effect   Beentjes  , paragraph 19,   SIAC Construction  , paragraph 36, and   Concordia Bus Finland  , paragraph 59).
73.  In those circumstances, it is not necessary to consider whether that criterion is also contrary to the principle of equal treatment, which, as the Court has repeatedly held, underlies the directives on procedures for the award of public contracts (see, inter alia, the judgments in   HI  , paragraph 45, and   Universale-Bau  , paragraph 91).