Judgment of the Court (Third Chamber) of 11 October 2007 (reference for a preliminary ruling from the Hanseatisches Oberlandesgericht - Germany) - Lämmerzahl GmbH v Freie Hansestadt Bremen
(Public contracts - Directive 89/665/EEC - Review procedures concerning the award of public contracts - Limitation period - Principle of effectiveness)
Language of the case: German
Referring court
Hanseatisches Oberlandesgericht
Parties to the main proceedings
Applicant: Lämmerzahl GmbH
Defendant: Freie Hansestadt Bremen
Re:
Reference for a preliminary ruling - Hanseatisches Oberlandesgericht - Interpretation of Article 1(1) and (3) 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) - No right to review of a decision of the contracting authority awarding a contract the estimated value of which does not exceed EUR 200 000 - All objections time-barred as a result of a wrong estimate of the contract price at the time of publication of the notice of invitation to tender.
Operative part of the judgment
In accordance with Article 9(4) of and Annex IV to Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts, as amended by Commission Directive 2001/78/EC of 13 September 2001, the contract notice concerning a contract within the scope of that directive must state the total quantity or scope of that contract. The absence of such an indication must be capable of being reviewed under Article 1(1) 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, 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;
Directive 89/665, as amended by Directive 92/50, particularly Article 1(1) and (3), precludes a limitation period laid down by national law from being applied in such a way that a tenderer is refused access to a review concerning the choice of procedure for awarding a public contract or the estimate of the value of that contract, where the contracting authority has not clearly stated the total quantity or scope of the contract to the person concerned. Those provisions of the directive also preclude such a rule from being extended generally to cover the review of decisions of the contracting authority, including those occurring in stages of an award procedure after the end of that limitation period.
____________1 - OJ C 212, 2.9.2006.