CJEC, 6th chamber, September 24, 1998, No C-76/97

THE COURT (Sixth Chamber)

1. By order of 5 December 1996, received at the Court on 20 February 1997, the Bundesvergabeamt (Federal Procurement Office) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty four questions 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), and of 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).

2. Those questions have been raised in proceedings between Mr Tögel and the Niederösterreichische Gebietskrankenkasse (Sickness Insurance Fund for Lower Austria) concerning the procedure for the award of public contracts for the transport 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, 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 conditions 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.'

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

'2. Member States shall ensure that there is no discrimination between undertakings claiming injury in the context of a procedure for the award of a contract as a result of the distinction made by this Directive between national rules implementing 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 person having or having had an interest in obtaining a particular public supply or public works 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 review must have previously notified the contracting authority of the alleged infringement and 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 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.

(...)

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

8. Where bodies responsible for review procedures are not judicial in character, written reasons for their decisions shall always be given. Furthermore in such a case, provision must be made to guarantee procedures whereby any allegedly illegal measure taken by the review body or any alleged defect in the exercise of the powers conferred on it can be the subject of judicial review or review by another body which is a court or tribunal within the meaning of Article 177 of the EEC Treaty and independent of both the contracting authority and the review body.

The members of such an independent body shall be appointed and leave office under the same conditions as members of the judiciary as regards the authority responsible for their appointment, their period of office, and their removal. At least the President of this independent body shall have the same legal and professional qualifications as members of the judiciary. The independent body shall take its decisions following a procedure in which both sides are heard, and these decisions shall, by means determined by each Member State, be legally binding.'

6. Moreover, Article 8 of Directive 92-50 provides for the observance of the provisions of Titles III to VI in the case of contracts which have as their object services listed in Annex I A thereto, whilst Article 9 provides that contracts which have as their object the services set out in Annex I B are to be awarded in accordance with Articles 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 B shall be awarded in accordance with the provisions of Titles III to VI where the value of the services listed in Annex I A is greater than the value of the services listed in Annex I B. Where this is not the case, they shall be awarded in accordance with Articles 14 and 16.'

8. Annex I A (Services within the meaning of Article 8) of Directive 92-50 is worded as 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 the following 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 A and I B refer to the CPC nomenclature (common product classification) of the United Nations.

11. Article 1 of Council Regulation (EEC) No 3696-93 of 29 October 1993 on the statistical classification of products by activity (CPA) in the European Economic Community (OJ 1993 L 342, p. 1) provides:

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

2. (...)

3. This Regulation shall apply only to the use of this classification for statistical purposes.'

12. According to Point 1 of Commission Recommendation 96-527-EC of 30 July 1996 on the use of the Common Procurement Vocabulary (CPV) for describing the subject-matter of public contracts (OJ 1996 L 222, p. 10), the contracting entities covered 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 European Communities for 1996.

13. Under Austrian law, Directive 89-665 was transposed into national law by the Bundesgesetz über die Vergabe von Aufträgen (Federal Law on the Award of Public 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 the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded, of 24 June 1994 (OJ 1994 C 241, p. 21), Directive 92-50 was to be transposed into Austrian law by 1 January 1995. It is not disputed that transposition into national law occurred only on 1 January 1997, that is to say after the order for reference was made.

The main proceedings

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

16. As regards the transport of patients in the broad sense, a distinction is made between transport by ambulance with a duty doctor, the transport of injured and sick persons with a nurse and unaccompanied transport by ambulance without medical attendance.

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

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

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

19. On 1 December 1992, the Bezirkshauptmannschaft Wien Umgebung (Chief Local Government Office for Vienna and District) granted Mr Tögel a licence to carry on a hire-car business, limited to the transport of injured and sick persons. The Niederösterreichische Gebietskrankenkasse repeatedly turned down the applicant's request for a direct-charging contract for that type of transport on the ground that that type of transport was adequately provided for under the two existing agreements. On 22 August 1996 Mr Tögel therefore applied to the Bundesvergabeamt for a declaration that the contract at issue concerned a service covered by Annex I A to Directive 92-50 and that, consequently, a public tender procedure should be carried out.

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

'1. May an individual derive, from Article 1(1) and (2), Article 2(1) or any other provisions of Council Directive 89-665-EEC, 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, a specific right to have review proceedings conducted before authorities or courts which comply with the provisions of Article 2(8) of Directive 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 Member State, an individual may successfully assert that legal right against that Member 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 Directive 89-665-EEC, to the conduct of a review procedure, must a national court having the attributes of the Bundesvergabeamt disregard provisions of national law such as Paragraph 91(2) and (3) of the Bundesvergabegesetz, which confer on the Bundesvergabeamt powers of review only in the case of infringements of the Bundesvergabegesetz and regulations adopted thereunder, on the ground that those provisions preclude a review procedure from being conducted under the Bundesvergabegesetz for awards of contracts for services, and must such a national court conduct a review procedure 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 under Annex I A, Category No 2 (Land transport services) and contracts for such services thus to be awarded in accordance with the provisions of Titles III and 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 result that contracts for such services are to be awarded in accordance with the provisions of Articles 13 and 14, or do those services fall entirely outside the sphere of application of Directive 92-50-EEC?

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

4. Is there under Article 5 or other provisions of the EC Treaty, or under Directive 92-50-EEC, an obligation on the State to intervene in existing legal situations concluded for an indefinite period or for several years but which were 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, the national court is asking essentially whether Article 1(1) and (2), Article 2(1), or any other provisions of Directive 89-665, must be interpreted as meaning that, if Directive 92-50 has not been transposed by the end of the period laid down for that purpose, the review bodies in the Member States with jurisdiction in regard to procedures for the award of public supply and public works contracts established under Article 2(8) of Directive 89-665 also have jurisdiction in regard to appeals in 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 its judgment in Case C-54-96 Dorsch Consult Ingenieurgesellschaft mbH v Bundesbaugesellschaft Berlin mbH [1997] ECR I-4961 the Court held that it was for the legal system of each Member State to determine which court or tribunal has jurisdiction to hear disputes involving individual rights derived from Community law but that in each case the Member States must ensure that those rights are effectively protected. Subject to that proviso, it is not for the Court to involve itself in the resolution of questions of jurisdiction which may arise within the internal judicial system from the classification of certain legal situations based on Community law.

23. At paragraph 41 of that judgment the Court went on to declare that, although Article 41 of Directive 92-50 requires the Member States to adopt the measures necessary to ensure effective review in the field of public service contracts, it does not 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 have designated 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 Tögel brought his application before the Bundesvergabeamt, Directive 92-50 had not been transposed into Austrian law. In fact, the Law giving effect to the directive entered into force only on 1 January 1997.

25. In view of those circumstances, the Court reiterated, at paragraph 43 of its judgment in Dorsch Consult, that the Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the EC Treaty to take all appropriate measures, whether general or particular, to ensure fulfilment of that obligation is binding on all the authorities of Member States, including, for matters within their jurisdiction, the courts. It followed that, when applying national law, whether adopted before or after the directive, the national court having to interpret that law must do so, as far as possible, in the light of the wording and purpose of the directive so as to achieve the result it has in view and thereby comply with the third paragraph of Article 189 of the EC Treaty (see the judgments in Case C-106-89 Marleasing [1990] ECR I-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 the designation of a body competent to hear appeals in relation to public service contracts is relevant even where Directive 92-50 has not been transposed. Where a Member State has failed to take the implementing measures required or has adopted 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 as against a defaulting Member State. Although this minimum guarantee cannot justify a Member State in absolving itself from taking in due time implementing measures sufficient to meet the purpose of each directive (see, in particular, the judgment in Case C-253-95 Commission v Germany [1996] ECR I-2423, paragraph 13), it may nevertheless have the effect of enabling individuals to rely, as against a Member State, on the substantive provisions of Directive 92-50.

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

28. The reply to be given to the first and second questions must therefore be that neither 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 been transposed by the end of the period laid down for that purpose, the review bodies in the Member States with jurisdiction to review procedures for the award of public supply contracts and public works contracts, established under Article 2(8) of Directive 89-665, may also hear appeals concerning procedures for the award of public service contracts. However, in order to observe the requirement that domestic law must be interpreted in conformity with Directive 92-50 and the requirement that the rights of individuals must be protected effectively, the national court must determine whether the relevant provisions of its domestic law allow recognition of a right for individuals to bring an appeal in relation to awards of public 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 may be exercised before the same bodies as those established to hear appeals concerning 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 services consisting 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 or Annex 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 by Directive 92-50, Articles 8 and 9 thereof refer to respectively Annex I A and Annex I B to that directive. In that connection, both Annex I A and Annex I B to Directive 92-50 refer to the CPC nomenclature.

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

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

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

34. On the other hand, in the Commission's view, it follows from the CPC nomenclature, the CPV and the CPA that the services in question must be classified as services mentioned in both Annex I A, Category No 2 (Land transport services) 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) of Regulation No 3696-93, the classification provided for in the CPA must be used for statistical purposes and that, according to point 1 of Recommendation 96-527, the CPV is intended only to be used for the drawing up of notices and other communications published in connection with public tendering procedures.

36. It follows that the designations of services listed in Category No 2 of Annex I A and Category No 25 of Annex I B cannot be interpreted in the light of the CPA or the CPV.

37. On the other hand, as Advocate General Fennelly observes at paragraph 32 of his Opinion, the seventh recital in the preamble to Directive 92-50 clearly indicates that the 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 fully at paragraphs 36 to 48 of his Opinion, the global approach advocated by France at the hearing, which consists in allocating each service in its entirety to either Annex I A or Annex I B depending on the presence or absence of medical assistance, does not reflect the clear distinction in the Annexes between transport and medical services delivered in the ambulance.

39. Consequently, CPC reference number 93 appearing in Category No 25 (Health and social services) in Annex I B, clearly indicates that this category relates solely to the medical aspects of health services governed by a public contract such as the one at issue in the main proceedings, to the exclusion of the transport aspects, which come under Category No 2 (Land transport services), which have the CPC reference number 712.

40. The reply to be given to the first part of the third question must therefore be that services consisting in the transport of injured and sick persons with a nurse in attendance 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 Article 10 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 to ascertain whether the provisions of Titles I to VI of Directive 92-50 may be relied on by individuals before national courts.

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

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

44. It should be observed first of all here that the provisions of Title I, concerning the matters and persons covered by the directive, and of Title II, on the procedures applicable to contracts for the services listed in Annexes I A and I B, are unconditional 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 are required, in unconditional and precise terms, to award public contracts for services in accordance with national procedures in conformity with the provisions of Titles III to VI in the case of services coming wholly or mainly under Annex I A and with the provisions of Articles 14 and 16 in the case of services coming wholly or mainly under Annex I B. Article 14 appears under Title IV whilst Article 16 appears under Title V.

46. As Advocate General Fennelly observes at paragraph 57 of his Opinion, the detailed provisions of Titles III to VI of the directive, on the choice of award procedures and the rules applicable to competitions, common technical and advertising rules, and participation and selection and award criteria, are, subject to exceptions and qualifications which are apparent from their terms, unconditional and sufficiently clear and precise to be relied on by service providers before national courts.

47. The reply to be given to the second part of the third question must therefore be that the provisions of Titles I and II of Directive 92-50 may be relied on directly by individuals 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 clear from an individual examination of their wording that they are unconditional and sufficiently 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 Directive 92-50-EEC, to intervene in existing legal situations concluded for an indefinite

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

49. Since the directive had not yet been transposed into Austrian law at the time when the 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 whether Community law requires an awarding authority of a Member State to intervene at the request of an individual in existing legal situations concluded for an indefinite period 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 and sufficiently precise provisions of a directive may be relied on before a national court by the persons concerned against any public authority required to apply laws, regulations or administrative provisions of national law which are not in conformity with that directive, even if that directive has not yet been transposed into the domestic legal order of the State in question.

52. It follows that an individual may rely before a national court on the provisions of Directive 92-50 if they are unconditional and sufficiently precise, when an awarding body of a Member State has awarded a public service contract in breach of those provisions, provided, however, that the award was made after expiry of the transposition period provided for by that directive.

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

54. The reply to be given to the fourth question must therefore be that Community law does not require an awarding authority in a Member State to intervene, at the request of an individual, in existing legal situations concluded for an indefinite period or for several years where those situations came into being before expiry of the 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 these proceedings are, for the parties to the main proceedings, a step in the proceedings pending 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 5 December 1996, hereby rules:

1. Neither Article 1(1) and (2), Article 2(1) nor any other provision 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, may be interpreted as meaning that, if Council Directive 92-50-EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts has not been transposed by the end of the period laid down for that purpose, the review bodies in the Member States with jurisdiction to review procedures for the award of public supply contracts and public works contracts, established under Article 2(8) of Directive 89-665, may also hear appeals concerning procedures for the award of public service contracts. However, in order to observe the requirement that domestic law must be interpreted in conformity with Directive 92-50 and the requirement that the rights of individuals must be protected effectively, the national court must determine whether the relevant provisions of its domestic law allow recognition of a right for individuals to bring an appeal in relation to awards of public 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 may be exercised before the same bodies as those established to hear appeals concerning the award of public supply contracts and public works contracts.

2. Services consisting in the transport of injured and sick persons with a nurse in attendance come within both Annex I A, Category No 2, and Annex I B, Category No 25, to Directive 92-50, so that a contract for those services 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 directly by individuals 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 clear from an individual examination of their wording that they are unconditional and sufficiently clear and precise.

4. Community law does not require an awarding authority in a Member State to intervene, at the request of an individual, in existing legal situations concluded for an indefinite period or for several years where those situations came into being before expiry of the period for transposition of Directive 92-50.