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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Siemens and ARGE Telekom & Partner (Law relating to undertakings) [2004] EUECJ C-314/01 (18 March 2004) URL: https://www.bailii.org/eu/cases/EUECJ/2004/C31401.html Cite as: [2004] EUECJ C-314/01, [2004] EUECJ C-314/1, Case C-314/01, [2004] 2 CMLR 27 |
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JUDGMENT OF THE COURT (Sixth Chamber)
18 March 2004
(1)
(Public contracts - Directive 89/665/EEC - Review procedures concerning the award of public contracts - Effects of a decision by the body responsible for review procedures annulling the decision by the contracting authority not to revoke the procedure by which a contract was awarded - Restriction on the use of subcontracting)
In Case C-314/01, REFERENCE to the Court under Article 234 EC by the Bundesvergabeamt (Austria) for a preliminary ruling in the proceedings pending before that tribunal between Siemens AG Österreich, ARGE Telekom & Partnerand
Hauptverband der österreichischen Sozialversicherungsträger, joined party: Bietergemeinschaft EDS/ORGA, on the interpretation 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 (OJ 1989 L 395, p. 33), as amended by Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1),THE COURT (Sixth Chamber),
after considering the written observations submitted on behalf of:
- ARGE Telekom & Partner, by M. Öhler, Rechtsanwalt, - Hauptverband der österreichischen Sozialversicherungsträger, by G. Lansky, Rechtsanwalt, - Bietergemeinschaft EDS/ORGA, by R. Regner, Rechtsanwalt, - the Austrian Government, by M. Fruhmann, acting as Agent, - the Commission of the European Communities, by M. Nolin, acting as Agent, assisted by R. Roniger, Rechtsanwalt,having regard to the Report for the Hearing,
after hearing the oral observations of Hauptverband der österreichischen Sozialversicherungsträger, represented by T. Hamerl, Rechtsanwalt; of the Austrian Government, represented by M. Fruhmann; and the Commission, represented by M. Nolin, assisted by R. Roniger, at the hearing on 18 September 2003,
after hearing the Opinion of the Advocate General at the sitting on 20 November 2003,
gives the following
'The Member States shall take the measures necessary to ensure that, as regards contract award procedures falling within the scope of Directives 71/305/EEC, 77/62/EEC and 92/50/EEC, decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the provisions set out in the following articles and, in particular, Article 2(7), on the grounds that such decisions have infringed Community law in the field of public procurement or national rules implementing that law.'
'1. The Member States shall ensure that the measures taken concerning the review procedures specified in Article 1 include provision for the powers to: (a) take, at the earliest opportunity and by way of interlocutory procedures, interim measures with the aim of correcting the alleged infringement or preventing further damage to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a public contract or the implementation of any decision taken by the contracting authority; (b) either set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discriminatory technical, economic or financial specifications in the invitation to tender, the contract documents or in any other document relating to the contract award procedure; (c) award damages to persons harmed by an infringement. ... 6. The effects of the exercise of the powers referred to in paragraph 1 on a contract concluded subsequent to its award shall be determined by national law. Furthermore, except where a decision must be set aside prior to the award of damages, a Member State may provide that, after the conclusion of a contract following its award, the powers of the body responsible for the review procedures shall be limited to awarding damages to any person harmed by an infringement. 7. The Member States shall ensure that decisions taken by bodies responsible for review procedures can be effectively enforced.'
'In the contract documents, the contracting authority may ask the tenderer to indicate in his tender any share of the contract he may intend to subcontract to third parties. This indication shall be without prejudice to the question of the principal service provider's liability.'
'1. The ability of service providers to perform services may be evaluated in particular with regard to their skills, efficiency, experience and reliability. 2. Evidence of the service provider's technical capability may be furnished by one or more of the following means according to the nature, quantity and purpose of the services to be provided: ... (c) an indication of the technicians or technical bodies involved, whether or not belonging directly to the service provider, especially those responsible for quality control; ... (h) an indication of the proportion of the contract which the service provider may intend to sub-contract. 3. The contracting authority shall specify, in the notice or in the invitation to tender, which references it wishes to receive. ...' National legislation
'1. The documents relating to the invitation to tender shall specify whether subcontracting is permitted. The subcontracting of the whole contract is not permitted except in the case of purchase agreements and subcontracting to undertakings associated with the contractor. In the case of building contracts the subcontracting of the majority of the services constituting the object of the undertaking is not permitted. ... The contracting authority shall ensure that the contractor's subcontractors themselves perform the greater part of contracts subcontracted to them. In exceptional cases the contracting authority may specify in the contract documents, stating its reasons, that it is permissible for the majority of the contract to be subcontracted. Subcontracting parts of the contract is, moreover, permitted only if the subcontractor is qualified to perform his share of the work. 2. The contracting authority should ask the tenderer in the documents relating to the invitation to tender to indicate in his tender the proportion of the contract which he may intend to subcontract to third parties. This information shall be without prejudice to the issue of the contractor's liability.'
'During the tendering period the invitation to tender may be withdrawn for compelling reasons, especially if before the end of the tendering period circumstances become known which, had they been known earlier, would not have led to an invitation to tender or would have led to an invitation to tender essentially different in substance.'
'Before the contracting authority proceeds to the selection of the tender qualifying for the award of the contract, it should immediately eliminate the following tenders on the basis of the results of the assessment: ... (9) tenders received from applicants who, immorally or contrary to the principle of effective competition, have come to agreements with other applicants which are disadvantageous to the contracting authority; ...'.
'2. In order to preclude infringements of this Federal Law and of the regulations implementing it, the Bundesvergabeamt is authorised until the time of the award: (1) to adopt interim measures and (2) to set aside unlawful decisions of the contracting authority. 3. After the award of the contract or the close of the contract award procedure, the Bundesvergabeamt is competent to determine whether, on grounds of infringement of this Federal Law or of any regulations issued under it, the contract has not been awarded to the best tenderer. ...'
'1. The Bundesvergabeamt shall set aside, by way of administrative decision, taking into account the opinion of the Conciliation Committee in the case, any decision of the contracting authority in an award procedure where the decision in question: (1) is contrary to the provisions of this Federal Law or its implementing regulations and (2) significantly affects the outcome of the award procedure. ... 3. After the award of the contract, the Bundesvergabeamt shall, in accordance with the conditions of subparagraph 1, determine only whether the alleged illegality exists or not.'
'A contract shall be null and void if it infringes a statutory prohibition or is contrary to acceptable moral values.'
'A maximum of 30% of the services may be subcontracted, provided that the characteristic parts of the contract, namely, project management, system design, development, construction, delivery and management of the central components of the overall system specific to the project development, delivery and management of the life-cycle of the cards and development and delivery of the terminals remain with the tenderer or tender consortium'.
(1) Is ... Directive 89/665 ... , and in particular Article 2(1)(b) thereof, if necessary in conjunction with Article 2(7) thereof, to be interpreted as meaning that the legal effect of a decision taken by a national review body within the meaning of Article 2(8) of Directive 89/665 relating to the setting aside of a contracting authority's decision not to cancel a contract award procedure is that if national law does not provide any basis for the effective and compulsory enforcement of the review body's decision against the contracting authority, the contract award procedure is automatically terminated by the national review body's decision, without the need for any further act by the contracting authority? (2) Is Directive 89/665, in particular Article 2(7) thereof, if necessary in conjunction with ... Directive 92/50... , in particular Articles 25 and 32(2)(c) thereof, or any other provisions of Community law, in particular having regard to the effet utile doctrine relating to the interpretation of Community law, to be construed as meaning that a provision in an invitation to tender which prohibits subcontracting material parts of the service concerned and, contrary to the case-law of the Court of Justice, in particular Case C-176/98 Holst Italia [1999] ECR I-8607, prevents the tenderer from using his contract with his subcontractor to prove that the services of a third party are actually available to him and which thus deprives him of his right to prove his own capability by relying on the services of a third party or to prove that he actually has available a third party's services, is so clearly contrary to Community law that a contract concluded on the basis of such an invitation to tender is to be regarded as invalid, in particular where national law in any case provides that illegal contracts are invalid? (3) Is Directive 89/665, in particular Article 2(7) thereof, or any other provision of Community law, in particular having regard to the effet utile doctrine relating to the interpretation of Community law, to be construed as meaning that a contract concluded contrary to a decision by a national review body within the meaning of Article 2(8) of Directive 89/665 relating to the setting aside of a contracting authority's decision not to cancel a contract award procedure is invalid, in particular where national law in any case provides that immoral or illegal contracts are void but does not provide any basis for the effective and compulsory enforcement of the review body's decision against the contracting authority? (4a) Is Directive 89/665, in particular Article 2(1)(b) thereof, if necessary in conjunction with Article 2(7), to be interpreted as meaning that where national law does not otherwise provide any basis for the effective and compulsory enforcement of the review body's decision against the contracting authority, the review body has, by virtue of the direct application of Article 2(1)(b) in conjunction with Article 2(7), the power to issue a compulsory, enforceable order to the contracting authority to ensure that the unlawful decision is set aside, even though national law authorises the review body to issue only non-compulsory, non-enforceable orders to set aside contracting authorities' decisions in tenderers' applications for review within the meaning of Article 1(1) of Directive 89/665? (4b) If Question 4a is answered in the affirmative: does Article 2(7) of Directive 89/665, if necessary in conjunction with other provisions of Community law, give the review body the power in such a case to threaten contracting authorities and the members of their executive organs with, and to impose on them, such fines or fines and imprisonment by way of coercive penalties as are necessary to enforce their orders and are calculated in accordance with judicial discretion, where the contracting authorities and the members of their executive organs do not comply with the orders issued by the review body?'
On those grounds,
THE COURT (Sixth Chamber)
in answer to the questions referred to it by the Bundesvergabeamt by order of 11 July 2001, hereby rules: 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, as amended by Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, and in particular Articles 1(1) and 2(7) thereof, must be construed as meaning that, in the case where a clause in an invitation to tender is incompatible with Community rules on public contracts, the national legal systems of the Member States must provide for the possibility of relying on that incompatibility in the review procedures referred to in Directive 89/665.
Skouris |
Gulman |
Puissochet |
Schintgen |
Colneric |
|
R. Grass |
V. Skouris |
Registrar |
President |
1 - Language of the case: German.