Universale-Bau AG, Bietergemeinschaft: 1) Hinteregger & Söhne Bauges.m.b.H. Salzburg, 2) ÖSTÜ-STETTIN Hoch- und Tiefbau GmbH v Entsorgungsbetriebe Simmering GmbH.
Date: 2002-12-12
42.  In that regard, it must be recalled that, according to settled case-law, it is 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.  However, it is the Member States' responsibility to ensure that those rights are effectively protected in each case.  Subject to that reservation, it is not for the Court to involve itself in the resolution of questions of jurisdiction to which the classification of certain legal situations based on Community law may give rise in the national judicial system (see, in particular, Case C-446/93   SEIM   [1996] ECR I-73, paragraph 32, and Case C-54/96   Dorsch Consult   [1997] ECR I-4691, paragraph 40).
43.  However, the Court has power to explain to the national court points of Community law which may help to solve the problem of jurisdiction with which that court is faced (see, in particular,   SEIM  , cited above, paragraph 33, and Joined Cases C-10/97 to C-22/97   IN.CO.GE.'90 and Others   [1998] ECR I-6307, paragraph 15).
51.  Thus the Court has held that the purpose of coordinating at Community level the procedures for the award of public contracts is to eliminate barriers to the freedom to provide services and goods and therefore to protect the interests of traders established in a Member State who wish to offer goods or services to contracting authorities established in another Member State (see, in particular, Case C-380/98   University of Cambridge   [2000] ECR I-8035, paragraph 16, and Case C-237/99   Commission   v   France   [2001] ECR I-939, paragraph 41).
52.  It has deduced therefrom that the aim of Directive 93/37 is to avoid both the risk of preference being given to national tenderers or applicants whenever a contract is awarded by the contracting authorities and the possibility that a body financed or controlled by the State, regional or local authorities or other bodies governed by public law may choose to be guided by considerations other than economic ones (see, in particular, both cases cited above,   University of Cambridge  , paragraph 17, and   Commission   v   France  , paragraph 42).
53.  The Court has therefore held that it is in the light of those objectives that the concept of   "body governed by public law"   in the second subparagraph of Article 1(b) of Directive 93/37 must be interpreted in functional terms (see, in particular,   Commission   v   France  , cited above, paragraph 43).
54.  Thus, at paragraph 26 of the judgment in   Mannesmann Anlagenbau Austria and Others  , cited above, in relation to the treatment of an entity which had been established for the specific purpose of meeting needs in the general interest not having an industrial or commercial character, but which also carried on commercial activities, the Court held that the condition laid down in the first indent of the second subparagraph of Article 1(b) of Directive 93/37 does not entail that the body concerned may be entrusted only with meeting needs in the general interest, not having an industrial or commercial character.
55.  In particular, as is clear from paragraph 25 of the judgment in   Mannesmann Anlagenbau Austria and Others  , cited above, the Court has held that it is immaterial that, in addition to the specific task of meeting needs in the general interest, the entity concerned is free to carry out other activities, but, on the other hand, decided that it is a critical factor that it should continue to attend to the needs which it is specifically required to meet.
60.  It is appropriate, furthermore, to point out that, in relation to the definition of the expression   "body governed by public law"   in the second subparagraph of Article 1(b) of Directive 92/50, which is in terms identical to those contained in the second subparagraph of Article 1(b) of Directive 93/37, the Court has already held that the existence or absence of needs in the general interest not having an industrial or commercial character must be appraised objectively, the legal form of the provisions in which those needs are mentioned being immaterial in that regard (Case C-360/96   BFI Holding   [1998] ECR I-6821, paragraph 63).
71.  It should be noted, first of all, that, whilst the objective of Directive 89/665 is to guarantee the existence, in all Member States, of effective remedies for infringements of Community law in the field of public procurement or of the national rules implementing that law, so as to ensure the effective application of the directives on the coordination of public procurement procedures, it contains no provision specifically covering time-limits for the applications for review which it seeks to establish.  It is therefore for the internal legal order of each Member State to establish such time-limits.
72.  None the less, since there are detailed procedural rules governing the remedies intended to protect rights conferred by Community law on candidates and tenderers harmed by decisions of contracting authorities, they must not compromise the effectiveness of Directive 89/665.
73.  It is therefore appropriate to determine whether, in light of the purpose of that directive, national legislation such as that at issue in the main proceedings does not adversely affect rights conferred on individuals by Community law.
74.  In that regard, it is appropriate to recall that, as is apparent from the first and second recitals in its preamble, Directive 89/665 is intended to strengthen the existing mechanisms, both at national and Community levels, to ensure the effective application of the directives relating to public procurement, in particular at a stage when infringements can still be corrected.  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.
75.  The full implementation of the objective sought by Directive 89/665 would be undermined if candidates and tenderers were allowed to invoke, at any stage of the award procedure, infringement of the rules of public procurement, thus obliging the contracting authority to restart the entire procedure in order to correct such infringements.
76.  Moreover, the setting of reasonable limitation periods for bringing proceedings must be regarded as satisfying, in principle, the requirement of effectiveness under Directive 89/665, since it is an application of the fundamental principle of legal certainty (see, by analogy, in relation to the principle of the effectiveness of Community law, Case C-261/95   Palmisani   [1997] ECR I-4025, paragraph 28, and Case C-78/98   Preston and Others   [2000] ECR I-3201, paragraph 33).
77.  In light of the foregoing considerations, it must be held, first, that the conditions governing time-limits such as those at issue in the main proceedings appear to be reasonable with regard both to the objectives of Directive 89/665, as set out in paragraph 74 of this judgment, and to the principle of legal certainty.
78.  Secondly, there can be no doubt that penalties such as prescription are such as to ensure that unlawful decisions of contracting authorities, from the moment they become known to those concerned, are challenged and corrected as soon as possible, which is also in accordance both with the objectives of Directive 89/665 and with the principle of legal certainty.
79.  The answer to the third question must therefore be that Directive 89/665 does not preclude national legislation which provides that any application for review of a contracting authority's decision must be commenced within a time-limit laid down to that effect and that any irregularity in the award procedure relied upon in support of such application must be raised within the same period, if it is not to be out of time, with the result that, when that period has passed, it is no longer possible to challenge such a decision or to raise such an irregularity, provided that the time-limit in question is reasonable.
The fourth question
88.  The title of Directive 93/37 and the second recital in its preamble show that its aim is simply to coordinate national procedures for the award of public works contracts, although it does not lay down a complete system of Community rules on the matter (Joined Cases C-285/99 and C-286/99   Lombardini and Mantovani   [2001] ECR I-9233, paragraph 33).
89.  The Directive nevertheless aims, as is clear from its preamble and 2nd and 10th recitals, to abolish restrictions on the freedom of establishment and on the freedom to provide services in respect of public works contracts in order to open up such contracts to genuine competition between entrepreneurs in the Member States (see, among others,   Lombardini and Mantovani  , cited above, paragraph 34).
90.  As the Court has already stated in respect of Directive 71/305, which, as was pointed out in paragraph 6 of this judgment, was consolidated by Directive 93/37, in order to meet that aim, the criteria and conditions which govern each contract must be given sufficient publicity by the authorities awarding contracts (Case 31/87   Beentjes   [1988] ECR 4635, paragraph 21).
91.  The principle of equal treatment, which underlies the directives on procedures for the award of public contracts, implies an obligation of transparency in order to enable verification that it has been complied with (see, in particular, Case C-324/98   Telaustria and Telefonadress   [2000] ECR I-10745, paragraph 61, and Case C-92/00   HI   [2002] ECR I-5553, paragraph 45).
92.  That obligation of transparency which is imposed on the contracting authority consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the services market to be opened up to competition and the impartiality of procurement procedures to be reviewed (see   Telaustria and Telefonadress  , cited above, paragraph 62).
93.  It follows therefrom that the procedure for awarding a public contract must comply, at every stage, particularly that of selecting the candidates in a restricted procedure, both with the principle of the equal treatment of the potential tenderers and the principle of transparency so as to afford all equality of opportunity in formulating the terms of their applications to take part and their tenders (see, to that effect, in relation to the stage of comparison of tenders, Case C-87/94   Commission   v   Belgium   [1996] ECR I-2043, paragraph 54).
98.  As the Court has stated in respect of Article 27(2) of Council Directive 90/531/EEC of 17 September 1990 on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1990 L 297, p. 1), the terms of which are substantially the same as those of Article 30(2) of Directive 93/37, the requirement thus imposed on the contracting authorities is intended precisely to inform all potential tenderers, before the preparation of their tenders, of the award criteria to be satisfied by these tenders and the relative importance of those criteria, thus ensuring the observance of the principles of equal treatment of tenderers and of transparency (see,   Commission   v   Belgium  , cited above, paragraphs 88 and 89).
99.  It is therefore clear that the interpretation according to which, where, in the context of a restricted procedure, the contracting authority has laid down prior to the publication of the contract notice the rules for the weighting of the selection criteria it intends to use, it is obliged to bring them to the prior knowledge of the candidates, is the only interpretation which complies with the objective of Directive 93/37, as explained in paragraphs 88 to 92 of this judgment, since it is the only one which is apt to guarantee an appropriate level of transparency and, therefore, compliance with the principle of equal treatment in the procedures awarding contracts to which that directive applies.