Werner Hackermüller v Bundesimmobiliengesellschaft mbH (BIG) and Wiener Entwicklungsgesellschaft mbH für den Donauraum AG (WED).
Date: 2003-06-19
18.  It is thus apparent that the provision does not oblige the Member States to make those review procedures available to any person wishing to obtain a public contract but allows them to require, in addition, that the person concerned has been or risks being harmed by the infringement he alleges.
22.  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 level, to ensure the effective application of the 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,   Alcatel Austria  , cited above, paragraphs 33 and 34, and Case C-470/99   Universale-Bau and Others   [2002] ECR I-11617, paragraph 74).
24.  There can be no doubt that a decision by which the contracting authority eliminates the bid of a tenderer even before making that selection is a decision of which it must be possible to seek review under Article 1(1) of Directive 89/665, since that provision 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 aforementioned judgments in   Alcatel Austria  , paragraph 35, and   HI  , paragraph 49).
26.  In those circumstances, if a review body were to refuse access to those procedures to a tenderer in a position like that of Mr Hackermüller, the effect would be to deny him not only his right to seek review of the decision he alleges to be unlawful but also the right to challenge the validity of the ground for exclusion raised by that body to deny him the status of a person who has been or risks being harmed by the alleged unlawfulness.
27.  Admittedly, if in order to mitigate that situation the tenderer is afforded the right to challenge the validity of that ground of exclusion in the review procedure he instigates in order to challenge the lawfulness of the decision by which the contracting authority did not consider his bid as being the best bid, it is possible that at the end of that procedure the review body may reach the conclusion that the bid should actually have been eliminated at the outset and that the tenderer's application should be dismissed on the ground that, in the light of that circumstance, he neither has been nor risks being harmed by the infringement he alleges.
28.  However, if the contracting authority has not taken a decision to exclude the tenderer's bid at the appropriate stage of the award procedure, the method of proceeding described in the previous paragraph must be regarded as the only one likely to guarantee the tenderer the right to challenge the validity of the ground for exclusion on the basis of which the review body intends to conclude that he neither has been nor risks being harmed by the decision he alleges to be unlawful and, accordingly, to ensure the effective application of the Community directives on public procurement at all stages of the award procedure.
29.  In the light of the foregoing considerations, the reply which should be given to Question 2 is that Article 1(3) of Directive 89/665 does not permit a tenderer to be refused access to the review procedures laid down by the directive to contest the lawfulness of the decision of the contracting authority not to consider his bid as the best bid on the ground that his bid should have been eliminated at the outset by the contracting authority for other reasons and that therefore he neither has been nor risks being harmed by the unlawfulness which he alleges. In the review procedure thus open to the tenderer, he must be allowed to challenge the ground of exclusion on the basis ofwhich the review body intends to conclude that he neither has been nor risks being harmed by the decision he alleges to be unlawful.