Josef Köllensperger GmbH & Co. KG and Atzwanger AG v Gemeindeverband Bezirkskrankenhaus Schwaz.
Date: 1999-02-04
16 It must first be considered whether the Tiroler Landesvergabeamt is a court or tribunal within the meaning of Article 177 of the Treaty, and consequently whether the questions are admissible.
17 It is settled case-law that, in order to determine whether a body making a reference for a preliminary ruling is a court or tribunal within the meaning of Article 177 of the Treaty, which is a question governed by Community law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (see, as the most recent authority, Case C-54/96 Dorsch Consult v Bundesbaugesellschaft Berlin [1997] ECR I-4961, paragraph 23, and Case 61/65 Vaassen (neé Göbbels) [1966] ECR 261; Case 14/86 Pretore di Salò v Persons unknown [1987] ECR 2545, paragraph 7; Case 109/88 Danfoss [1989] ECR 3199, paragraphs 7 and 8; Case C-393/92 Almelo and Others [1994] ECR I-1477; and Case C-111/94 Job Centre [1995] ECR I-3361, paragraph 9).
18 The first five criteria are not in doubt. It is apparent from the provisions of Paragraph 6 of the TVergG on its composition and functioning that the Tiroler Landesvergabeamt complies with them.
19 It is not clear, on the other hand, that the condition of independence is satisfied.
20 As the Advocate General observes in point 25 of his Opinion, the TVergG does not contain any specific provisions on challenges to, or withdrawals by, members of the Landesvergabeamt.
21 Moreover, the passage in Paragraph 6(4) of the TVergG concerning removal of members `if the conditions for appointment are no longer met or if circumstances occur which prevent proper exercise of the office and are likely to do so for a long time' appears prima facie too vague to guarantee against undue intervention or pressure on the part of the executive.
22 On this point, it must be observed, first, that Paragraph 5(2) of the TVergG expressly states that, unless otherwise provided, the Allgemeines Verwaltungsverfahrensgesetz (General Law on Administrative Procedure) 1991 is to apply to review procedures concerning awards of contracts. That Law contains very specific provisions on the circumstances in which members of the body in question must withdraw. Moreover, according to the case-law of the Verfassungsgerichtshof, failure to comply with that obligation constitutes a procedural defect which may be challenged by the parties concerned.
23 Second, Paragraph 6(7) of the TVergG must be considered. By expressly prohibiting the giving of instructions to members of the Tiroler Landesvergabeamt in the performance of their duties, that provision repeats the terms of Article 20 of the Austrian Federal Constitutional Law on the independence of members of collegiate bodies with a judicial element, which include the Landesvergabeamt.
24 Those provisions, taken together, cannot therefore support any conclusion that Paragraph 6(4) of the TVergG does not guarantee the independence of the members of the Landesvergabeamt. It is not for the Court to infer that such a provision is applied in a manner contrary to the Austrian constitution and the principles of a State governed by the rule of law.
25 It follows that the Tiroler Landesvergabeamt must be regarded as a court or tribunal within the meaning of Article 177 of the Treaty and that its questions are admissible.
The questions referred for a preliminary ruling
29 The first solution is to give jurisdiction over reviews to bodies of a judicial character. The second solution is to give that jurisdiction, at a first stage, to bodies which are not of such a character. In that case, the decisions of those bodies must be capable of being the subject of judicial review or of review by another body which must satisfy the particular requirements of the second subparagraph of Article 2(8) of Directive 89/665, so as to guarantee an adequate review.