Hospital Ingenieure Krankenhaustechnik Planungs-Gesellschaft mbH (HI) v Landeskrankenanstalten-Betriebsgesellschaft.
Date: 1999-03-04
13 Considering that it was unable to adjudicate on the dispute before it without seeking clarification as to the interpretation of Directives 89/665 and 92/50, the UVK stayed proceedings pending a preliminary ruling from the Court of Justice on the following five questions:
`1. Is Article 2(8) of Council Directive 89/665/EEC of 21 December 1989 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 to be interpreted as meaning that the Unabhängiger Verwaltungssenat für Kärnten fulfils the conditions for a body responsible for review procedures with respect to services?
2. Are these or 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, from which there derives an individual right to have review proceedings conducted before authorities or courts which comply with the provisions of Article 2(8) of Directive 89/665/EEC, to be interpreted as being 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 the Member State in legal proceedings?
3. Are the provisions of Article 41 of Directive 92/50/EEC in conjunction with Directive 89/665/EEC, which are the basis of an individual's right to have review proceedings conducted, to be interpreted as meaning that a national court with the characteristics of the Unabhängiger Verwaltungssenat für Kärnten may, when conducting review proceedings on the basis of national provisions such as Article 59 et seq. of the Carinthian Auftragsvergabegesetz and the regulations relating thereto, disregard those provisions if they prevent the carrying out of review proceedings under the Carinthian Auftragsvergabegesetz for the award of public service contracts, and therefore nevertheless conduct review proceedings in accordance with Article 8 of the Carinthian Auftragsvergabegesetz?
4. 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 IA, Category No 12, of Directive 92/50/EEC (architectural services; engineering services and integrated engineering services; urban planning and landscape architectural services; related scientific and technical consulting services; technical testing and analysis services)?
5. Are the provisions of Directive 92/50/EEC to be interpreted as satisfying the conditions laid down in the judgment in Case 41/74 Van Duyn (paragraph 12) for the direct applicability of a Community directive, with the result that services coming under Annex IA of the directive are to be awarded under the procedure therein mentioned, or are the relevant provisions of the directive in connection with the services mentioned in Annex IA capable of fulfilling the conditions laid down in the said case?'
The first question
17 The first option consists in vesting the power to hear appeals in judicial authorities.  Under the second option, that power is, initially, granted to non-judicial authorities.  In such circumstances, the decisions of those authorities must be amenable to judicial review or to review by another authority which meets the special requirements laid down in the second subparagraph of Article 2(8) of Directive 89/665 in order to ensure that an adequate remedy is available (Case C-103/97 Köllensperger [1999] ECR I-551, paragraph 29).
18 As the Advocate General observed in points 12 to 14 of his Opinion, a body such as the UVK displays all the characteristics required for it to be recognised as a court or tribunal within the meaning of Article 177 of the Treaty.
22 It must be noted at the outset that, in Case C-54/96 Dorsch Consult v Bundesbaugesellschaft Berlin [1997] ECR I-4961, paragraph 40, and Case C-76/97 Tögel v Niederösterreichische Gebietskrankenkasse [1998] ECR I-5357, paragraph 22), 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 reservation, it is not for the Court to involve itself in the resolution of questions of jurisdiction which may arise within the national judicial system from the classification of certain legal situations based on Community law.
23 In paragraphs 41 and 23 of those judgments, respectively, the Court went on to state 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 that purpose or whether those 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 Having regard to similar circumstances, in paragraphs 43 and 25 respectively of Dorsch Consult and Tögel, cited above, the Court stated that the Member States' obligation arising from a directive to achieve the result prescribed 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 In paragraphs 44 and 26 respectively of its judgments in Dorsch Consult and Tögel, cited above, the Court also pointed 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, in paragraphs 45 and 27 respectively of the same judgments, 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).
34 As the Court held in paragraph 42 of Tögel, cited above, it is settled case-law (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.
36 It was held in paragraph 44 of Tögel, cited above, 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.
37 It was also held, in paragraph 45 of Tögel, that 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 constitutes Title IV whilst Article 16 appears under Title V.
38 Finally, the Court held in paragraph 46 of Tögel that the detailed provisions of Titles III to VI of Directive 92/50 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.