Alcatel Austria AG and Others, Siemens AG Österreich and Sag-Schrack Anlagentechnik AG v Bundesministerium für Wissenschaft und Verkehr.
Date: 1999-10-28
30 Article 2(1) of Directive 89/665 lists the measures to be taken concerning the review procedures which the Member States must make available in national law. According to Article 2(1)(a), they must include provision for the adoption of interim measures by way of interlocutory procedures. Article 2(1)(b) refers to the possibility of setting aside or ensuring the setting aside of decisions taken unlawfully, and Article 2(1)(c) concerns the award of damages.
31 It is common ground that Article 2(1)(b) of Directive 89/665 does not define the decisions taken unlawfully which a party may ask to have set aside. The Community legislature confined itself to stating that such decisions include those containing discriminatory technical, economic or financial specifications in the documents relating to the contract award procedure in question.
32 Nothing in Article 2(1)(b) of Directive 89/665 indicates that an unlawful decision awarding a public contract does not fall within the category of decisions taken unlawfully in respect of which application may be made to have them set aside.
33 As is clear from the first and second recitals in the preamble to Directive 89/665, the directive reinforces existing arrangements at both national and Community level for ensuring effective application of Community directives on the award of public contracts, in particular at the stage where infringements can still be rectified (Case C-433/93 Commission v Germany [1995] ECR I-2303, paragraph 23).
34 In that regard, Article 1(1) of Directive 89/665 requires the Member States to establish effective review procedures that are as rapid as possible to ensure compliance with Community directives on public procurement.
35 It is clear from that provision that the subject-matter of those review procedures will be decisions taken by the contracting authorities, on the ground that they infringe Community law on public procurement or the national rules transposing it; the provision does not, however, lay down any restriction with regard to the nature and content of those decisions.
43 It follows from those considerations that the combined provisions of Article 2(1)(a) and (b) and the second subparagraph of Article 2(6) of Directive 89/665 are to be interpreted as meaning that the Member States are required to ensure that the contracting authority's decision prior to the conclusion of the contract as to the bidder in a tender procedure with which it will conclude the contract is in all cases open to review in a procedure whereby an applicant may have that decision set aside if the relevant conditions are met, notwithstanding the possibility, once the contract has been concluded, of obtaining an award of damages.
Second and third questions
49 In such circumstances, where it is doubtful that the national court is in a position to give effect to the right of individuals to obtain review in matters concerning public procurement under the conditions set out in Directive 89/665, in particular Article 2(1)(a) and (b), it is useful to recall that, if national provisions cannot be interpreted in a manner consistent with Directive 89/665, those concerned may seek compensation, under the appropriate procedures in national law, for the damage suffered by reason of the failure to transpose a directive within the prescribed period (see, in particular, Joined Cases C-178/94, C-179/94 and C-188/94 to C-190/94 Dillenkofer and Others [1996] ECR I-4845).