Hochtief AG and Linde-Kca-Dresden GmbH v Közbeszerzések Tanácsa Közbeszerzési Döntőbizottság.
Date: 2009-10-15
20. In that regard, the Court notes that, in the context of the cooperation between the Court and the national courts provided for by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequ ent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, inter alia, Case C‑306/99 BIAO [2003] ECR I‑1, paragraph 88; Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio  [2006] ECR I‑11987, paragraph 16; and Case C‑260/07 Pedro IV Servicios [2009] ECR I‑0000, paragraph 28).
21. The right to determine the questions to be put to the Court thus devolves upon the national court alone and the parties may not change their tenor (see, inter alia, Case 44/65 Singer [1965] ECR 1191, 1198; Case C‑412/96 Kainuun Liikenne and Pohjolan Liikenne [1998] ECR I‑5141, paragraph 23; and Case C‑402/98 ATB and Others [2000] ECR I‑5501, paragraph 29).
22. In addition, to alter the substance of the questions referred for a preliminary ruling, or to answer the additional questions mentioned by the applicants in the main proceedings in their observations, would be incompatible with the Court’s function under Article 234 EC and with its duty to ensure that the governments of the Member States and the parties concerned are given the opportunity to submit observations under Article 23 of the Statute of the Court of Justice, bearing in mind that under that provision only the order of the referring court is notified to the interested parties (see, to that effect, inter alia, Joined Cases 141/81 to 143/81 Holdijk and Others [1982] ECR 1299, paragraph 6; Case C‑178/95 Wiljo [1997] ECR I‑585, paragraph 30; Case C‑352/95 Phytheron International [1997] ECR I‑1729, paragraph 14; and Kainuun Liikenne and Pohjohlan Liikenne , paragraph 24).
25. At the outset, it should be borne in mind that, before the period for transposition of a directive has expired, Member States cannot be reproached for not having yet adopted measures implementing it in national law (see Case C‑129/96 Inter‑Environnement Wallonie [1997] ECR I‑7411, paragraph 43 and Case C‑212/04 Adeneler and Others [2006] ECR I‑6057, paragraph 114).
29. It would, in those circumstances, be contrary to the principle of legal certainty to determine the law applicable to the case in the main proceedings by reference to the date of the award of the contract, when the decision which in the present case is alleged to have infringed Community law was taken before the date referred to in the previous paragraph of this judgment (see, by analogy, Case C‑337/98 Commission v France [2000] ECR I‑8377, paragraph 40).
47. However, it should be observed, as is apparent from the 10th recital in the preamble to Directive 93/37, that the purpose of that directive is to develop effective competition in the field of public works contracts (see Case C‑27/98 Fracasso and Leitschutz [1999] ECR I‑5697, paragraph 26; Joined Cases C‑285/99 and C‑286/99 Lombardini and Mantovani [2001] ECR I‑9233, paragraph 34; Case C‑470/99 Universale‑Bau and Others [2002] ECR I‑11617, paragraph 89; and Case C‑247/02 Sintesi [2004] ECR I‑9215, paragraph 35).
48. Thus, in order to meet the objective of developing effective competition, Directive 93/37 seeks to organise the award of contracts in such a way that the contracting authority is able to compare the different tenders and to accept the most advantageous on the basis of objective criteria ( Fracasso and Leitschutz , paragraph 31 and Sintesi , paragraph 37).