JUDGMENT OF THE COURT (Sixth Chamber)

24 September 1998 (1)

(Public service contracts — Direct effect of a directive not transposed intonational law — Classification of services for the transport of patients)

In Case C-76/97,

REFERENCE to the Court under Article 177 of the EC Treaty by theBundesvergabeamt (Austria) for a preliminary ruling in the proceedings pendingbefore that body between

Walter Tögel

and

Niederösterreichische Gebietskrankenkasse

on the interpretation of Council Directive 89/665/EEC of 21 December 1989 on thecoordination of the laws, regulations and administrative provisions relating to theapplication of review procedures to the award of public supply and public workscontracts (OJ 1989 L 395, p. 33), and of Council Directive 92/50/EEC of 18 June1992 relating to the coordination of procedures for the award of public servicecontracts (OJ 1992 L 209, p. 1),

THE COURT (Sixth Chamber),

composed of: H. Ragnemalm, President of the Chamber, G.F. Mancini, P.J.G.Kapteyn (Rapporteur), J.L. Murray and K.M. Ioannou, Judges,

Advocate General: N. Fennelly,

Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

—    the Niederösterreichische Gebietskrankenkasse, by Karl Preslmayr,Rechtsanwalt, Vienna,

—    the Austrian Government, by Wolf Okresek, Ministerialrat at the FederalChancellor's Office — Department responsible for constitutional matters,acting as Agent,

—    the Commission of the European Communities, by Hendrik van Lier, LegalAdviser, and Claudia Schmidt, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Mr Tögel, represented by Claus Casati,Rechtsanwaltsanwärter, Vienna, the Niederösterreichische Gebietskrankenkasse,represented by Dieter Hauck, Rechtsanwalt, Vienna, the Austrian Government,represented by Michael Fruhmann, of the Federal Chancellor's Office —Department responsible for constitutional matters, acting as Agent, the FrenchGovernment, represented by Philippe Lalliot, Secretary for Foreign Affairs at theDirectorate of Legal Affairs in the Ministry of Foreign Affairs, acting as Agent, andthe Commission, represented by Hendrik van Lier and Claudia Schmidt, at thehearing on 12 February 1998,

after hearing the Opinion of the Advocate General at the sitting on 2 April 1998,

gives the following

Judgment

1.

    By order of 5 December 1996, received at the Court on 20 February 1997, theBundesvergabeamt (Federal Procurement Office) referred to the Court for apreliminary ruling under Article 177 of the EC Treaty four questions on theinterpretation of Council Directive 89/665/EEC of 21 December 1989 on thecoordination of the laws, regulations and administrative provisions relating to theapplication of review procedures to the award of public supply and public workscontracts (OJ 1989 L 395, p. 33), and of Council Directive 92/50/EEC of 18 June

1992 relating to the coordination of procedures for the award of public servicecontracts (OJ 1992 L 209, p. 1).

2.

    Those questions have been raised in proceedings between Mr Tögel and theNiederösterreichische Gebietskrankenkasse (Sickness Insurance Fund for LowerAustria) concerning the procedure for the award of public contracts for thetransport of injured and sick persons.

Legal framework

3.

    Article 1(1) of Directive 89/665, as amended by Article 41 of Directive 92/50,provides:

'1.    The Member States shall take the measures necessary to ensure that, asregards contract-award procedures falling within the scope of Directives71/305/EEC, 77/62/EEC and 92/50/EEC, decisions taken by the contractingauthorities may be reviewed effectively and, in particular, as rapidly as possible inaccordance with the conditions set out in the following Articles, and, in particular,Article 2(7) on the grounds that such decisions have infringed Community law inthe field of public procurement or national rules implementing that law.‘

4.

    Article 1(2) and (3) of Directive 89/665 is worded as follows:

'2.    Member States shall ensure that there is no discrimination betweenundertakings claiming injury in the context of a procedure for the award of acontract as a result of the distinction made by this Directive between national rulesimplementing Community law and other national rules.

3.    The Member States shall ensure that the review procedures are available,under detailed rules which the Member States may establish, at least to any personhaving or having had an interest in obtaining a particular public supply or publicworks contract and who has been or risks being harmed by an alleged infringement.In particular, the Member States may require that the person seeking the reviewmust have previously notified the contracting authority of the alleged infringementand of his intention to seek review.‘

5.

    Article 2 of Directive 89/665 provides:

'1.    The Member States shall ensure that the measures taken concerning thereview 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 orpreventing further damage to the interests concerned, including measures

to suspend or to ensure the suspension of the procedure for the award ofa public contract or the implementation of any decision taken by thecontracting authority;

(b)    either set aside or ensure the setting aside of decisions taken unlawfully,including the removal of discriminatory technical, economic or financialspecifications in the invitation to tender, the contract documents or in anyother document relating to the contract-award procedure;

(c)    award damages to persons harmed by an infringement.

(...)

7.    The Member States shall ensure that decisions taken by bodies responsiblefor review procedures can be effectively enforced.

8.    Where bodies responsible for review procedures are not judicial incharacter, written reasons for their decisions shall always be given. Furthermore insuch a case, provision must be made to guarantee procedures whereby anyallegedly illegal measure taken by the review body or any alleged defect in theexercise of the powers conferred on it can be the subject of judicial review orreview by another body which is a court or tribunal within the meaning of Article177 of the EEC Treaty and independent of both the contracting authority and thereview body.

The members of such an independent body shall be appointed and leave officeunder the same conditions as members of the judiciary as regards the authorityresponsible for their appointment, their period of office, and their removal. At leastthe President of this independent body shall have the same legal and professionalqualifications as members of the judiciary. The independent body shall take itsdecisions following a procedure in which both sides are heard, and these decisionsshall, by means determined by each Member State, be legally binding.‘

6.

    Moreover, Article 8 of Directive 92/50 provides for the observance of the provisionsof Titles III to VI in the case of contracts which have as their object services listedin Annex I A thereto, whilst Article 9 provides that contracts which have as theirobject the services set out in Annex I B are to be awarded in accordance withArticles 14 and 16 thereof.

7.

    Article 10 of Directive 92/50 provides:

'Contracts which have as their object services listed in both Annex I A and I Bshall be awarded in accordance with the provisions of Titles III to VI where thevalue of the services listed in Annex I A is greater than the value of the serviceslisted in Annex I B. Where this is not the case, they shall be awarded in accordancewith Articles 14 and 16.‘

8.

    Annex I A (Services within the meaning of Article 8) of Directive 92/50 is wordedas follows:

'Category No.        Subject                    CPC Reference No

1                ...                        ...

2            Land transport services, including    712 (except 71235),

            armoured car services, and courier    7512, 87304

            services, except transport of mail

3                ...                        ...‘

9.

    Annex I B (Services within the meaning of Article 9) of Directive 92/50 is in thefollowing terms:

'Category No.        Subject                    CPC Reference No

...                ...                        ...

25            Health and social services            93

...                ...                        ...‘

10.

    According to the seventh recital in the preamble to Directive 92/50, Annexes I Aand I B refer to the CPC nomenclature (common product classification) of theUnited Nations.

11.

    Article 1 of Council Regulation (EEC) No 3696/93 of 29 October 1993 on thestatistical classification of products by activity (CPA) in the European EconomicCommunity (OJ 1993 L 342, p. 1) provides:

'1.    The purpose of this Regulation is to establish a classification of products byactivity within the Community in order to ensure comparability between nationaland Community classifications and hence national and Community statistics.

2. (...)

3.    This Regulation shall apply only to the use of this classification for statisticalpurposes.‘

12.

    According to Point 1 of Commission Recommendation 96/527/EC of 30 July 1996on the use of the Common Procurement Vocabulary (CPV) for describing thesubject-matter of public contracts (OJ 1996 L 222, p. 10), the contracting entitiescovered by the Community directives dealing with the award of public contracts are

recommended to use the terms and codes of the Common Procurement Vocabulary(CPV) published in Supplement 169 to the Official Journal of the EuropeanCommunities for 1996.

13.

    Under Austrian law, Directive 89/665 was transposed into national law by theBundesgesetz über die Vergabe von Aufträgen (Federal Law on the Award ofPublic Contracts, BGBl. 462/1993), which entered into force on 1 January 1994.

14.

    By virtue of Article 168 of the Act concerning the conditions of accession of theKingdom of Norway, the Republic of Austria, the Republic of Finland and theKingdom of Sweden and the adjustments to the Treaties on which the EuropeanUnion is founded, of 24 June 1994 (OJ 1994 C 241, p. 21), Directive 92/50 was tobe transposed into Austrian law by 1 January 1995. It is not disputed thattransposition into national law occurred only on 1 January 1997, that is to say afterthe order for reference was made.

The main proceedings

15.

    Under national legislation the Austrian social security institutions are required toreimburse to insured persons the costs of transport incurred by them or bymembers of their families when they have had to call on medical assistance.Reimbursement includes the cost of transport within the country for transport tothe nearest hospital for treatment or from the hospital to the patient's home andalso, for outpatient treatment, to the nearest approved doctor or the nearestapproved institution, reimbursement being made at the rates laid down byagreement.

16.

    As regards the transport of patients in the broad sense, a distinction is madebetween transport by ambulance with a duty doctor, the transport of injured andsick persons with a nurse and unaccompanied transport by ambulance withoutmedical attendance.

17.

    The relationship between the social security institutions and the transportingundertakings are governed by private-law contracts which must afford insuredpersons and members of their families insured under them adequate access to thebenefits provided for by the law and under agreements.

18.

    Thus, in 1984, the Niederösterreichische Gebietskrankenkasse entered intoframework agreements with the Austrian Red Cross, regional section for LowerAustria, and the Austrian Federation of Samaritan Workers, for the provision ofpatient transport of all three types. Tariffs under these framework agreements areadjusted annually. Pursuant to these contracts, persons engaged in the transport ofpatients are not only required to undertake all transport on the ground, that is saytransport accompanied by a duty doctor, the transport of injured and sick persons

as well as unaccompanied transport by ambulance but must also coordinate and usedual-mode or multi-mode transport.

19.

    On 1 December 1992, the Bezirkshauptmannschaft Wien Umgebung (Chief LocalGovernment Office for Vienna and District) granted Mr Tögel a licence to carryon a hire-car business, limited to the transport of injured and sick persons. TheNiederösterreichische Gebietskrankenkasse repeatedly turned down the applicant'srequest for a direct-charging contract for that type of transport on the ground thatthat type of transport was adequately provided for under the two existingagreements. On 22 August 1996 Mr Tögel therefore applied to theBundesvergabeamt for a declaration that the contract at issue concerned a servicecovered by Annex I A to Directive 92/50 and that, consequently, a public tenderprocedure should be carried out.

20.

    In those circumstances, the Bundesvergabeamt stayed the proceedings and referredthe following questions to the Court for a preliminary ruling:

'1.    May an individual derive, from Article 1(1) and (2), Article 2(1) or anyother provisions of Council Directive 89/665/EEC, on the coordination ofthe laws, regulations and administrative provisions relating to the applicationof review procedures to the award of public supply and public workscontracts, a specific right to have review proceedings conducted beforeauthorities or courts which comply with the provisions of Article 2(8) ofDirective 89/665/EEC, which right is so sufficiently precise and specific that,in the event of non-transposition of the directive in question by the MemberState, an individual may successfully assert that legal right against thatMember State in legal proceedings?

2.    In conducting a review procedure on the basis of an individual's right,founded on Article 41 of Directive 92/50/EEC in conjunction with Directive89/665/EEC, to the conduct of a review procedure, must a national courthaving the attributes of the Bundesvergabeamt disregard provisions ofnational law such as Paragraph 91(2) and (3) of the Bundesvergabegesetz,which confer on the Bundesvergabeamt powers of review only in the caseof infringements of the Bundesvergabegesetz and regulations adoptedthereunder, on the ground that those provisions preclude a reviewprocedure from being conducted under the Bundesvergabegesetz for awardsof contracts for services, and must such a national court conduct a reviewprocedure in accordance with the fourth part of the Bundesvergabegesetz?

3(a).    Are the services mentioned in the facts of the case (with reference to    Article 10 of Directive 92/50/EEC) to be classified as services coming underAnnex I A, Category No 2 (Land transport services) and contracts for suchservices thus to be awarded in accordance with the provisions of Titles IIIand IV of the Directive, or are they to be classified as services coming

under Annex I B to Directive 92/50/EEC (Health services) with the resultthat contracts for such services are to be awarded in accordance with theprovisions of Articles 13 and 14, or do those services fall entirely outside thesphere of application of Directive 92/50/EEC?

3(b).    Do the provisions of Articles 1 to 7 of Directive 92/50/EEC satisfy thepreconditions laid down in paragraph 12 of the judgment in Case 41/74 VanDuyn v Home Office on the direct applicability of a Community directive,with the result that services coming under Annex 1 B to the Directive areto be awarded under the procedure therein mentioned or are the relevantprovisions of the Directive for the services mentioned in Annex 1 A capableof fulfilling the preconditions laid down in the abovementioned case?

4.     Is there under Article 5 or other provisions of the EC Treaty, or underDirective 92/50/EEC, an obligation on the State to intervene in existing legalsituations concluded for an indefinite period or for several years but whichwere not entered into in accordance with the abovementioned directive?‘

The first and second questions

21.

    By its first and second questions, which it is appropriate to examine together, thenational court is asking essentially whether Article 1(1) and (2), Article 2(1), or anyother provisions of Directive 89/665, must be interpreted as meaning that, ifDirective 92/50 has not been transposed by the end of the period laid down for thatpurpose, the review bodies in the Member States with jurisdiction in regard toprocedures for the award of public supply and public works contracts establishedunder Article 2(8) of Directive 89/665 also have jurisdiction in regard to appealsin connection with procedures for the award of contracts for services.

22.

    In that connection, it should be recalled first of all that in paragraph 40 of itsjudgment in Case C-54/96 Dorsch Consult Ingenieurgesellschaft mbH vBundesbaugesellschaft Berlin mbH [1997] ECR I-4961 the Court held that it was forthe legal system of each Member State to determine which court or tribunal hasjurisdiction to hear disputes involving individual rights derived from Community lawbut that in each case the Member States must ensure that those rights areeffectively protected. Subject to that proviso, it is not for the Court to involve itselfin the resolution of questions of jurisdiction which may arise within the internaljudicial system from the classification of certain legal situations based onCommunity law.

23.

    At paragraph 41 of that judgment the Court went on to declare that, althoughArticle 41 of Directive 92/50 requires the Member States to adopt the measuresnecessary to ensure effective review in the field of public service contracts, it doesnot indicate which national bodies are to be the competent bodies for this purpose

or whether these bodies are to be the same as those which the Member States havedesignated in the field of public works contracts and public supply contracts.

24.

    However, it is undisputed that on 22 August 1996, the date on which Mr Tögelbrought his application before the Bundesvergabeamt, Directive 92/50 had not beentransposed into Austrian law. In fact, the Law giving effect to the directive enteredinto force only on 1 January 1997.

25.

    In view of those circumstances, the Court reiterated, at paragraph 43 of itsjudgment in Dorsch Consult, that the Member States' obligation arising from adirective to achieve the result envisaged by the directive and their duty underArticle 5 of the EC Treaty to take all appropriate measures, whether general orparticular, to ensure fulfilment of that obligation is binding on all the authoritiesof Member States, including, for matters within their jurisdiction, the courts. Itfollowed that, when applying national law, whether adopted before or after thedirective, the national court having to interpret that law must do so, as far aspossible, in the light of the wording and purpose of the directive so as to achievethe result it has in view and thereby comply with the third paragraph of Article 189of the EC Treaty (see the judgments in Case C-106/89 Marleasing [1990] ECRI-4135, paragraph 8; Case C-334/92 Wagner Miret [1993] ECR I-6911, paragraph 20;and in Case C-91/92 Faccini Dori [1994] ECR I-3325, paragraph 26).

26.

    At paragraph 44, the Court went on to point out that the question of thedesignation of a body competent to hear appeals in relation to public servicecontracts is relevant even where Directive 92/50 has not been transposed. Wherea Member State has failed to take the implementing measures required or hasadopted measures which do not conform to a directive, the Court has recognised,subject to certain conditions, the right of individuals to rely in law on a directive asagainst a defaulting Member State. Although this minimum guarantee cannot justifya Member State in absolving itself from taking in due time implementing measuressufficient to meet the purpose of each directive (see, in particular, the judgment inCase C-253/95 Commission v Germany [1996] ECR I-2423, paragraph 13), it maynevertheless have the effect of enabling individuals to rely, as against a MemberState, on the substantive provisions of Directive 92/50.

27.

    Finally, at paragraph 45 of the judgment in Dorsch Consult, the Court reiteratedthat, if the relevant domestic provisions cannot be interpreted in conformity withDirective 92/50, the persons concerned, using the appropriate domestic lawprocedures, may claim compensation for the damage incurred owing to the failureto transpose the directive within the time prescribed (see, in particular, thejudgment in Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94Dillenkofer and Others [1996] ECR I-4845).

28.

    The reply to be given to the first and second questions must therefore be thatneither Article 1(1) and (2), Article 2(1) nor any other provision of Directive

89/665 may be interpreted as meaning that, if Directive 92/50 has not beentransposed by the end of the period laid down for that purpose, the review bodiesin the Member States with jurisdiction to review procedures for the award of publicsupply contracts and public works contracts, established under Article 2(8) ofDirective 89/665, may also hear appeals concerning procedures for the award ofpublic service contracts. However, in order to observe the requirement thatdomestic law must be interpreted in conformity with Directive 92/50 and therequirement that the rights of individuals must be protected effectively, the nationalcourt must determine whether the relevant provisions of its domestic law allowrecognition of a right for individuals to bring an appeal in relation to awards ofpublic service contracts. In circumstances such as those arising in the present case,the national court must determine in particular whether such a right of appeal maybe exercised before the same bodies as those established to hear appealsconcerning the award of public supply contracts and public works contracts.

The third question

The first part of the third question

29.

    By the first part of the third question the national court asks whether servicesconsisting in the transport of injured and sick persons with a nurse in attendance,which are the services at issue in the main proceedings, come within Annex I A orAnnex I B to Directive 92/50, to which Article 10 of that directive refers.

30.

    As regards the designation of the services governed by contracts covered byDirective 92/50, Articles 8 and 9 thereof refer to respectively Annex I A and AnnexI B to that directive. In that connection, both Annex I A and Annex I B toDirective 92/50 refer to the CPC nomenclature.

31.

    According to Article 10 of Directive 92/50, contracts which have as their objectservices listed in both Annex I A and I B are to be awarded in accordance with theprovisions of Titles III to VI where the value of the services listed in Annex I A isgreater than the value of the services listed in Annex I B. Where this is not thecase, they are to be awarded in accordance with Articles 14 and 16.

32.

    According to the Niederösterreichische Gebietskrankenkasse, the services inquestion constitute services listed in Annex I B, Category No 25 (Health and socialservices). In that connection, it refers in particular to the CPV, Heading 85, whichlists 'ambulance services‘ amongst the 'health and social services‘ to which itrefers.

33.

    The Austrian Government takes the view that neither the CPC nomenclature northe CPA nor the CPV enable the services to be classified in any of the categoriesmentioned in Annex I A or Annex I B.

34.

    On the other hand, in the Commission's view, it follows from the CPCnomenclature, the CPV and the CPA that the services in question must beclassified as services mentioned in both Annex I A, Category No 2 (Land transportservices) and Annex I B, Category No 25 (Health and social services).

35.

    In that connection, it should be observed that, according to Article 1(3) ofRegulation No 3696/93, the classification provided for in the CPA must be used forstatistical purposes and that, according to point 1 of Recommendation 96/527, theCPV is intended only to be used for the drawing up of notices and othercommunications published in connection with public tendering procedures.

36.

    It follows that the designations of services listed in Category No 2 of Annex I Aand Category No 25 of Annex I B cannot be interpreted in the light of the CPA orthe CPV.

37.

    On the other hand, as Advocate General Fennelly observes at paragraph 32 of hisOpinion, the seventh recital in the preamble to Directive 92/50 clearly indicates thatthe reference in Annexes I A and I B to the CPC nomenclature is binding.

38.

    It must be observed next that, as Advocate General Fennelly explains more fullyat paragraphs 36 to 48 of his Opinion, the global approach advocated by Franceat the hearing, which consists in allocating each service in its entirety to eitherAnnex I A or Annex I B depending on the presence or absence of medicalassistance, does not reflect the clear distinction in the Annexes between transportand medical services delivered in the ambulance.

39.

    Consequently, CPC reference number 93 appearing in Category No 25 (Health andsocial services) in Annex I B, clearly indicates that this category relates solely to themedical aspects of health services governed by a public contract such as the one atissue in the main proceedings, to the exclusion of the transport aspects, which comeunder Category No 2 (Land transport services), which have the CPC referencenumber 712.

40.

    The reply to be given to the first part of the third question must therefore be thatservices consisting in the transport of injured and sick persons with a nurse inattendance come within both Annex I A, Category No 2, and Annex I B, CategoryNo 25, to Directive 92/50, so that a contract for those services is covered by Article10 of Directive 92/50.

The second part of the third question

41.

    By the second part of the third question the national court is essentially seeking toascertain whether the provisions of Titles I to VI of Directive 92/50 may be reliedon by individuals before national courts.

42.

    It must be recalled here that the Court has consistently held (see the judgment inCase 31/87 Beentjes v Netherlands State [1988] ECR 4635, paragraph 40) thatwhenever the provisions of a directive appear, as far as their subject-matter isconcerned, to be unconditional and sufficiently precise, those provisions may berelied on by individuals against the State where that State fails to implement thedirective in national law within the prescribed period or where it fails to implementit correctly.

43.

    The question is, therefore, whether the relevant provisions of Directive 92/50appear to be, as regards their content, unconditional and sufficiently precise to berelied on by an individual as against the State.

44.

    It should be observed first of all here that the provisions of Title I, concerning thematters and persons covered by the directive, and of Title II, on the proceduresapplicable to contracts for the services listed in Annexes I A and I B, areunconditional and sufficiently precise to be relied on before a national court.

45.

    Under Articles 8 and 10, which form part of Title II, the awarding authorities arerequired, in unconditional and precise terms, to award public contracts for servicesin accordance with national procedures in conformity with the provisions of TitlesIII to VI in the case of services coming wholly or mainly under Annex I A and withthe provisions of Articles 14 and 16 in the case of services coming wholly or mainlyunder Annex I B. Article 14 appears under Title IV whilst Article 16 appears underTitle V.

46.

    As Advocate General Fennelly observes at paragraph 57 of his Opinion, thedetailed provisions of Titles III to VI of the directive, on the choice of awardprocedures and the rules applicable to competitions, common technical andadvertising rules, and participation and selection and award criteria, are, subject toexceptions and qualifications which are apparent from their terms, unconditionaland sufficiently clear and precise to be relied on by service providers beforenational courts.

47.

    The reply to be given to the second part of the third question must therefore bethat the provisions of Titles I and II of Directive 92/50 may be relied on directly byindividuals before national courts. As regards the provisions of Titles III to VI,these may also be relied on by an individual before a national court if it is clearfrom an individual examination of their wording that they are unconditional andsufficiently clear and precise.

The fourth question

48.

    By its fourth question the national court asks whether a Member State is required,under Article 5 or any other provision of the EC Treaty or under Directive92/50/EEC, to intervene in existing legal situations concluded for an indefinite

period or for several years in a manner not in conformity with the abovementioneddirective.

49.

    Since the directive had not yet been transposed into Austrian law at the time whenthe order for reference was made, that question cannot, in the present case,concern any obligation on the Austrian legislature to intervene in this area.

50.

    The fourth question must therefore be construed as seeking to ascertain whetherCommunity law requires an awarding authority of a Member State to intervene atthe request of an individual in existing legal situations concluded for an indefiniteperiod or for several years in a manner not in conformity with Directive 92/50.

51.

    It should be recalled here that it is settled case-law that unconditional andsufficiently precise provisions of a directive may be relied on before a nationalcourt by the persons concerned against any public authority required to apply laws,regulations or administrative provisions of national law which are not in conformitywith that directive, even if that directive has not yet been transposed into thedomestic legal order of the State in question.

52.

    It follows that an individual may rely before a national court on the provisions ofDirective 92/50 if they are unconditional and sufficiently precise, when an awardingbody of a Member State has awarded a public service contract in breach of thoseprovisions, provided, however, that the award was made after expiry of thetransposition period provided for by that directive.

53.

    In this instance, the file shows that the framework contracts at issue in the mainproceedings were entered into in 1984, that is to say even before adoption of thedirective.

54.

    The reply to be given to the fourth question must therefore be that Community lawdoes not require an awarding authority in a Member State to intervene, at therequest of an individual, in existing legal situations concluded for an indefiniteperiod or for several years where those situations came into being before expiry ofthe period for transposition of Directive 92/50.

Costs

55.

    The costs incurred by the French and Austrian Governments and the Commission,which have submitted observations to the Court, are not recoverable. Since theseproceedings are, for the parties to the main proceedings, a step in the proceedingspending before the referring body, the decision on costs is a matter for that body.

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the Bundesvergabeamt by order of 5December 1996, hereby rules:

1.    Neither Article 1(1) and (2), Article 2(1) nor any other provision of CouncilDirective 89/665/EEC of 21 December 1989, on the coordination of the laws,regulations and administrative provisions relating to the application ofreview procedures to the award of public supply and public works contracts,may be interpreted as meaning that, if Council Directive 92/50/EEC of 18June 1992 relating to the coordination of procedures for the award of publicservice contracts has not been transposed by the end of the period laiddown for that purpose, the review bodies in the Member States withjurisdiction to review procedures for the award of public supply contractsand public works contracts, established under Article 2(8) of Directive89/665, may also hear appeals concerning procedures for the award ofpublic service contracts. However, in order to observe the requirement thatdomestic law must be interpreted in conformity with Directive 92/50 andthe requirement that the rights of individuals must be protected effectively,the national court must determine whether the relevant provisions of itsdomestic law allow recognition of a right for individuals to bring an appealin relation to awards of public service contracts. In circumstances such asthose arising in the present case, the national court must determine inparticular whether such a right of appeal may be exercised before the samebodies as those established to hear appeals concerning the award of publicsupply contracts and public works contracts.

2.    Services consisting in the transport of injured and sick persons with anurse in attendance come within both Annex I A, Category No 2, and AnnexI B, Category No 25, to Directive 92/50, so that a contract for thoseservices is covered by Article 10 of Directive 92/50.

3.    The provisions of Titles I and II of Directive 92/50 may be relied on directlyby individuals before national courts. As regards the provisions of Titles IIIto VI, these may also be relied on by an individual before a national courtif it is clear from an individual examination of their wording that they areunconditional and sufficiently clear and precise.

4.    Community law does not require an awarding authority in a Member Stateto intervene, at the request of an individual, in existing legal situationsconcluded for an indefinite period or for several years where thosesituations came into being before expiry of the period for transposition ofDirective 92/50.

RagnemalmMancini Kapteyn Murray Ioannou

Delivered in open court in Luxembourg on 24 September 1998.

R. Grass

H. Ragnemalm

Registrar

President of the Sixth Chamber

1: Language of the case: German.