Hospital Ingenieure Krankenhaustechnik Planungs-Gesellschaft mbH (HI) v Stadt Wien.
Date: 2002-06-18
25 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 234 EC, 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, in particular, Case C-54/96 Dorsch Consult v Bundesbaugesellschaft Berlin [1997] ECR I-4961, paragraph 23, and Case C-103/97 Köllensperger and Atzwanger v Gemeindeverband Bezirkskrankenhaus Schwaz [1999] ECR I-551, paragraph 17).
30 In that respect, whereas Article 2(1)(b) of Directive 89/665 delimits the scope of the directive, it does not define the unlawful decisions of which annulment may be sought, confining itself to listing measures which Member States are required to take for the purposes of the review proceedings referred to in Article 1 (see, to that effect, Case C-81/98 Alcatel Austria and Others v Bundesministerium für Wissenschaft und Verkehr [1999] ECR I-7671, paragraphs 30 and 31).
37 It follows that, if a decision taken by a contracting authority in a procedure for awarding a public contract is made subject to the Community law rules on public contracts and is therefore capable of infringing them, Article 1(1) of Directive 89/665 requires that that decision be capable of forming the subject-matter of an action for annulment.
41 It follows that, on a proper interpretation of Article 12(2) of Directive 92/50, although that provision requires the contracting authority to notify candidates and tenderers of the grounds for its decision if it decides to withdraw the invitation to tender for a public service contract, there is no implied obligation on that authority to carry the award procedure to its conclusion.
43 In that regard, the Court has consistently 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, inter alia, Case C-380/98 University of Cambridge [2000] ECR I-8035, paragraph 16; Case C-19/00 SIAC Construction [2001] ECR I-7725, paragraph 32).
45 The Court's case-law also demonstrates that the principle of equal treatment, which underlies the directives on procedures for the award of public contracts, implies in particular an obligation of transparency in order to enable verification that it has been complied with (see, to that effect, Case C-275/98 Unitron Scandinavia and 3-S v Ministeriet for Fødevarer, Landbrug og Fiskeri [1999] ECR I-8291, paragraph 31; Case C-324/98 Telaustria and Telefonadress v Telekom Austria [2000] ECR I-10745, paragraph 61).
47 It follows that, even though Directive 92/50 does not specifically govern the detailed procedures for withdrawing an invitation to tender for a public service contract, the contracting authorities are nevertheless required, when adopting such a decision, to comply with the fundamental rules of the Treaty in general, and the principle of non-discrimination on the ground of nationality, in particular (see, by way of analogy, concerning the conclusion of public service concessions, Telaustria and Telefonadress, paragraph 60).
58 Since Directive 89/665 does no more than coordinate existing mechanisms in Member States in order to ensure the full and effective application of the directives laying down substantive rules concerning public contracts, it does not expressly define the scope of the remedies which the Member States must establish for that purpose.
59 Therefore, the question of the extent of the judicial review exercised in the context of the review procedures covered by Directive 89/665 must be examined in the light of the purpose of the latter, taking care that its effectiveness is not undermined.
67 Thus, in the absence of specific Community rules governing the matter, it is for the domestic legal system of each Member State to determine the decisive moment for the purposes of assessing the legality of the withdrawal decision, provided that the relevant national rules are not less favourable than those governing similar domestic actions (principle of equivalence) and that they do not make it practically impossible or excessively difficult to exercise rights conferred by Community law (principle of effectiveness) (see, by analogy, Case C-390/98 Banks v Coal Authority and Secretary of State for Trade and Industry [2001] ECR I-6117, paragraph 121; Case C-453/99 Courage and Crehan [2001] ECR I-6297, paragraph 29).