Notice for the OJ
Action brought on 5 June 2002 by the Commission of the European Communities
against the Republic of Austria
(Case C-212/02)
An action against the Republic of Austria was brought before the Court of Justice of the European Communities on 5 June 2002 by the Commission of the European Communities, represented by Michel Nolin, of the Commission's Legal Service, acting as Agent, assisted by Rainer Roniger, Rechtsanwalt, of Haarmann and Hemmelrath, Brussels, having an address for service at the office of Luis Escobar Guerrero, of the Commission's Legal Service, Centre Wagner C 254.
The applicant claims that the Court should:
1.Rule that the Republic of Austria has failed to fulfil its obligations under the remedial Directives 89/665/EEC 1 and 92/13/EEC 2, in particular the obligations under Articles 2(1)(a) and (b) thereof, since the Land procurement laws of the Länder of Salzburg, Steiermark, Niederösterreich and Kärnten do not ensure in all cases that the award decision is open to review in a procedure whereby an unsuccessful tenderer can have that decision set aside; 2.Order the Republic of Austria to pay the costs.
Pleas in law and main arguments:
The Land legislatures in Salzburg, Steiermark, Niederösterreich and Kärnten have decided to limit the effects of a review procedure following the conclusion of a contract to awarding damages within the meaning of Article 2(6) of Directives 89/665/EEC and 92/13/EEC. With the award, to be considered as a private law declaration of intent, by the contracting authority to the successful tenderer, the contract is closed and, according to the provisions of the Land procurement laws ( in conformity with Article 2(6) of both directives ( no longer open to challenge by the Land bodies responsible for review procedures.
The Land procurement laws which the Commission is challenging do not, however, contain a definition of the "award decision". They therefore also do not lay down any specific form for the decision by the contracting authority to award a particular tenderer the contract. Nor are uniform rules laid down as to whether, and how, tenderers can obtain knowledge of such award decisions. The award decision is rather an internal decision by the contracting authority, of which tenderers cannot acquire any knowledge. The award decision becomes public knowledge only once the contract is concluded.
The Austrian system is therefore not in compliance with the directive inasmuch as, through that nomination as well as through the coincidence of the award decision and the conclusion of the contract, the tenderer is deprived of any chance to contest the award decision and effectively to prevent an unlawful award decision by applying at the same time for a provisional order. That is contrary to the effective review procedures required by the directives, under which it must be possible to apply for a provisional order at least until the conclusion of the contract.
As a consequence of the Court's judgment in Case C-81/98
Alcatel,
3 the Austrian Federal Chancellery prepared a memorandum intended to ensure an approach to contract awards in compliance with that judgment until statutory regulations have been issued. However, a non-binding memorandum does not establish an unequivocal legal framework such as the Republic of Austria is required to create.