| | ECT-234Preliminary references    
| ECT (2003) | Article 234 | The Court of Justice shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of this Treaty;
(b) the validity and interpretation of acts of the institutions of the Community and of the ECB;
(c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide.
Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice. |
| Case | Pte | Ref | Text | C-323/07-S
Termoraggi | 15-17 | S2-2
ECT-234-impl | 15 Si un marché public a pour objet à la fois des produits au sens de la directive 93/36 et des services au sens de la directive 92/50, il résulte de l’article 2 de cette dernière directive que ce marché relève de la directive 92/50 si la valeur des services en question dépasse celle des produits incorporés dans le marché, et de la directive 93/36 dans le cas inverse (voir arrêts du 18 novembre 1999, Teckal, C-107/98, Rec. p. I-8121, point 38, ainsi que du 11 mai 2006, Carbotermo et Consorzio Alisei, C-340/04, Rec. p. I-4137, point 31).
16 Il ressort de la décision de renvoi que le marché en cause au principal a pour objet à la fois la fourniture de combustibles, soit des produits au sens de la directive 93/36, et des services d’entretien des installations de chauffage, soit des services au sens de la directive 92/50.
17 Il appartient à la juridiction de renvoi de décider, en fonction de la valeur respective des produits et des services faisant l’objet du marché en cause au principal, si celui-ci relève de la directive 93/36 ou de la directive 92/50. | C-323/07
Termoraggi | 18-23 | S2-1.c.s1-impl
ECT-234-impl | 18 La directive 93/36 s’applique, en principe, aux marchés conclus entre, d’une part, une collectivité territoriale et, d’autre part, une personne juridiquement distincte de cette dernière. Cependant, elle ne s’applique pas dans l’hypothèse où, à la fois, la collectivité territoriale exerce sur la personne en cause un contrôle analogue à celui qu’elle exerce sur ses propres services et où cette personne réalise l’essentiel de son activité avec la ou les collectivités qui la détiennent (voir arrêt Teckal, précité, point 50).
19 Des considérations analogues s’appliquent en ce qui concerne la directive 92/50 (voir arrêt du 11 janvier 2005, Stadt Halle et RPL Lochau, C-26/03, Rec. p. I-1, points 48, 49 et 52). 20 Le dossier soumis à la Cour contient certaines indications desquelles il pourrait être déduit qu’AGAM est sous le contrôle du Comune di Monza et réalise l’essentiel de son activité avec celui-ci.
21 Il appartient à la juridiction de renvoi de vérifier si tel est effectivement le cas dans l’affaire au principal.
22 Dans l’affirmative, il conviendrait de conclure que ni la directive 92/50 ni la directive 93/36 ne sont applicables au marché en cause au principal.
23 Dans la négative, il conviendrait d’examiner si les autres conditions d’applicabilité de ces directives sont réunies. S’agissant de la directive 92/50, il conviendrait d’examiner si les conditions posées à son article 6 sont satisfaites. Une question analogue ne se poserait pas à l’égard de la directive 93/36, celle-ci ne contenant pas de disposition comparable à l’article 6 de la directive 92/50 (voir arrêt Teckal, précité, point 44). | C-213/07
Michaniki | 27-30 | S2-3.1-impl
ECT-234 | 27 The Greek Government disputes the relevance of the questions submitted by the referring court.
28 First, it asserts that the dispute in the main proceedings relates to a purely domestic situation, which concerns Greek operators exclusively. It is therefore doubtful that that case falls within the scope of Directive 93/37 and, consequently, is covered by the Court’s jurisdiction to interpret Community law.
29 In this respect, it must however be observed that there is nothing in Directive 93/37 to permit the inference that the applicability of its provisions, in particular the common rules on participation laid down, inter alia, in Article 24 thereof, depends on the existence of an actual link with free movement between Member States. As the Advocate General stated at point 16 of his Opinion, that directive does not make the applicability of its provisions to procedures for the award of public works contracts contingent on any condition relating to the nationality or the place of establishment of the tenderers (see, by analogy, Case C-87/94 Commission v Belgium [1996] ECR I-2043, paragraph 33).
30 Consequently, and in the light of the fact that the amount of the contract at issue in the main proceedings exceeds the threshold for the application of Directive 93/37, the Court does have jurisdiction in this case to interpret that directive. | C-213/07
Michaniki | 31-36 | ECT-234 | 31 Second, the Greek Government submits that the dispute pending before the referring court relates solely to the issue of whether provisions of Law 3021/2002 are compatible with Article 14(9) of the Constitution. The interpretation of Community law sought by that court does not therefore satisfy an objective need for the resolution of the dispute.
32 In this respect, it must be recalled that, according to settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (Case C-415/93 Bosman [1995] ECR I-4921, paragraph 59; Case C-466/04 Acereda Herrera [2006] ECR I-5341, paragraph 47; and Case C-380/05 Centro Europa 7 [2008] ECR I-349, paragraph 52).
33 Consequently, where the questions submitted concern the interpretation of Community law, the Court is in principle bound to give a ruling (see, inter alia, Case C-326/00 IKA [2003] ECR I-1703, paragraph 27; Case C-145/03 Keller [2005] ECR I-2529, paragraph 33; and Case C-13/05 Chacón Navas [2006] ECR I-6467, paragraph 32).
34 The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 39; Case C-35/99 Arduino [2002] ECR I-1529, paragraph 25; and Chacón Navas, paragraph 33).
35 That is not so here. In this case, an answer from the Court in response to the reference for a preliminary ruling will provide the referring court with the interpretation necessary for it to resolve the question, which affects the final outcome of the main proceedings, of whether the system of incompatibility between the public works contracts sector and the media sector, established by Article 14(9) of the Constitution and implemented by Law 3021/2002, complies with Community law.
36 Consequently, the reference for a preliminary ruling must be held admissible. | C-213/07
Michaniki | 50-52 | ECT-234 | 50 By its second question, the referring court is essentially asking whether a national provision which establishes an incompatibility between the media sector and the public procurement sector is compatible with the principles of Community law.
51 As a preliminary point, it must be recalled that it is not the task of the Court, in preliminary ruling proceedings, to rule upon the compatibility of national law with Community law or to interpret national law. The Court is, however, competent to give the national court full guidance on the interpretation of Community law in order to enable it to determine the issue of compatibility for the purposes of the case before it (see, inter alia, Case C-292/92 Hünermund and Others [1993] ECR I-6787, paragraph 8; Case C-237/04 Enirisorse [2006] ECR I-2843, paragraph 24; and Centro Europa 7, paragraphs 49 and 50).
52 It is therefore appropriate for the Court, in the present case, to restrict its analysis by providing an interpretation of Community law which will be of use to the referring court, which will have the task of determining the compatibility of the provisions of national law concerned with Community law, for the purposes of deciding the dispute before it. | C-532/06
Lianakis | 21-24 | ECT-234 | 21. By its question, the referring court asks in essence whether, in a tendering procedure, Article 36(2) of Directive 92/50 precludes the contracting authority from stipulating at a later date the weighting factors and sub-criteria to be applied to the award criteria referred to in the contract documents or contract notice.
22. The Commission submitted in its written observations that, before replying to the question referred, it is necessary to consider whether, in a tendering procedure, Directive 92/50 precludes the contracting authority from taking into account as award criteria' rather than as qualitative selection criteria' the tenderers' experience, manpower and equipment, or their ability to perform the contract by the anticipated deadline.
23. In that regard, even if - formally - the national court has limited its question to the interpretation of Article 36(2) of Directive 92/50 in relation to a possible later change to the award criteria, that does not prevent the Court from providing the national court with all the elements of interpretation of Community law which may enable it to rule on the case before it, whether or not reference is made thereto in the question referred (see Case C392/05 Alevizos [2007] ECR I0000, paragraph 64 and the case-law cited).
24. Accordingly, it is necessary, first of all, to establish the lawfulness of the criteria chosen as award criteria', before considering whether it is possible for the weighting factors and sub-criteria in respect of the award criteria referred to in the contract documents or contract notice to be set at a later date. | C-454/06
Pressetext Nachrichtenagentur | 89 | ECT-234-impl | 89 In the light of the answers given to the first, second and third questions, it is not necessary to answer the fourth, fifth, sixth and seventh questions. | C-450/06
Varec | 22-25 | ECT-234 | 22. Varec submits that in order to resolve the dispute before the Conseil d'Etat it is not necessary for the Court to answer the question referred for a preliminary ruling.
23. In that regard, it must be observed that, in proceedings under Article 234 EC, which is based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court. Similarly, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling (see, in particular, Case C326/00 IKA [2003] ECR I1703, paragraph 27; Case C145/03 Keller [2005] ECR I2529, paragraph 33; and Case C419/04 Conseil général de la Vienne [2006] ECR I5645, paragraph 19).
24. Nevertheless, the Court has also held that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction (see, to that effect, Case 244/80 Foglia [1981] ECR 3045, paragraph 21). The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, in particular, Case C379/98 PreussenElektra [2001] ECR I2099, paragraph 39; Case C390/99 Canal Satélite Digital [2002] ECR I607, paragraph 19; and Conseil général de la Vienne , paragraph 20).
25. It must be pointed out that that is not the case here. If the Conseil d'Etat follows the form of order proposed by the Auditeur, it will have to annul the award decision which is before it, without examining the substance of the dispute. On the other hand, if the provisions of Community law which the Conseil d'Etat seeks to have interpreted justify the confidential treatment of the documents of the file at issue in the main proceedings, it will be in a position to examine the substance of the dispute. For those reasons it may be concluded that the interpretation of those provisions is necessary for the resolution of the dispute in the main proceedings. | C-357/06
Frigerio Luigi | 16-19 | C3-80-impl
ECT-234 | 16. As a preliminary point, it should be observed that it is settled case-law that, in proceedings under Article 234 EC, which is based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in a case is a matter for the national court (see, inter alia, Case C235/95 Dumon and Froment [1998] ECR I4531, paragraph 25; Case C-13/05 Chacon Navas [2006] ECR I6467, paragraph 32, and Case C251/06 ING. AUER [2007] ECR I-0000, paragraph 19).
17. In this connection, it is apparent from the order for reference, and in particular from the first and second questions referred, that the national court is basing its decision on the premise that the contract at issue in the main proceedings falls within the scope of one of the Community directives on public service contracts, that is, either Directive 92/50 or Directive 2004/18. That premise is also supported by the evidence submitted to the Court, such as Resolution No 53, the text of which is attached to Frigerio's observations and which shows that the value of the contract at issue in the main proceedings is greater than the threshold laid down in those directives. In addition, it is apparent from the observations submitted at the hearing that the consideration for that contract is provided by the Comune di Triuggio, with the result that it cannot be deemed to be a concession of a public service.
18. In those circumstances, and having regard to the fact that that resolution dates from 29 November 2005, it must be held that Directive 92/50 applies ratione materiæ and ratione temporis to the facts of the case in the main proceedings.
19. Therefore, the first and second questions, which should be examined together, should be reformulated as meaning that the referring court is asking, primarily, whether Article 26(2) of Directive 92/50 precludes national provisions, such as those at issue in the main proceedings, which restrict the submission of tenders in a procedure for the award of a public service contract to parties having the legal form of a company with share capital. As a subsidiary question, that court is inquiring as to the consequences of an affirmative answer on the interpretation and application of the national law. | C-357/06
Frigerio Luigi | 30-31 | ECT-234
ECT-EquTran | 30. By its third and fourth questions, the referring court is essentially asking whether national provisions such as those at issue in the main proceedings are in conformity with Articles 39 EC, 43 EC, 48 EC and 81 EC and Directives 75/442 and 2006/12.
31. Since, as is apparent from paragraph 18 above, the facts at issue in the main proceedings fall within the scope of application of Directive 92/50 and the interpretation of that directive provides the information necessary to enable the referring court to resolve the case before it, an examination of the abovementioned Community provisions would be of purely academic interest. Consequently, in accordance with established case-law, there is no need to answer the third and fourth questions referred (see, to that effect, Case C-144/04 Mangold [2005] ECR I-9981, paragraphs 36 and 37, and Case C-212/04 Adeneler and Others [2006] ECR I-6057, paragraphs 42 and 43). | C-220/06
Asociacion Profesional de Empresas | 34-37 | ECT-234 | 34. The Spanish Government considers that the question for a preliminary ruling is inadmissible in as far as, in actual fact, the Court is being asked whether the Cooperation Agreement complies with the directives on the award of public service contracts and the liberalisation of postal services, which is a question that falls under the jurisdiction of the national court.
35. It must be held at the outset that neither the wording of the question referred nor the necessary grounds supporting it, as set out in the order for reference, indicate that the Audiencia Nacional asks the Court to decide whether the Cooperation Agreement complies with Community law.
36. In addition, it must be observed that whilst the Court does not have jurisdiction under Article 234 EC to apply the rules of Community law to a particular case or to judge the compatibility of provisions of national law with those rules, it may provide a national court with all the elements relating to the interpretation of Community law which may be useful to it in assessing the effects of the provisions of that law (see Case C181/00 Flightline [2002] ECR I6139, paragraph 20).
37. Therefore, the reference for a preliminary ruling must be considered to be admissible. | C-295/05
Asemfo | 25-35 | ECT-234 | 25. Tragsa, the Spanish Government and the Commission of the European Communities challenge the Court's jurisdiction to give a preliminary ruling on the reference and, relying on several arguments, cast doubt on the admissibility of the questions referred by the national court.
26. First of all, those questions relate only to the evaluation of national measures and, therefore, they do not come within the jurisdiction of the Court,
27. Next, those questions are hypothetical inasmuch as they seek an answer to problems which are not relevant or germane to the outcome of the main proceedings. If the only relevant plea in law invoked by Asemfo were a breach of the rules concerning public procurement, such a breach cannot, by itself, found an allegation that Tragsa abuses a dominant position on the market. In addition, it does not seem that the Court could be persuaded to interpret the directives relating to public procurement for the purposes of national proceedings intended to establish whether that company has abused an allegedly dominant position.
28. Finally, the order of reference contains no information relating to the relevant market or to Tragsa's allegedly dominant position upon it. Nor does it contain any detailed argument on the applicability of Article 86 EC and offers no comment on its application in conjunction with Article 82 EC.
29. It is appropriate in the first place to recall that, according to settled case-law, even though it is true that it is not for the Court to rule on the compatibility of national rules with the provisions of Community law in proceedings brought under Article 234 EC since the interpretation of such rules is a matter for the national courts, the Court does have jurisdiction to supply the latter with all the guidance as to the interpretation of Community law necessary to enable them to rule on the compatibility of such rules with the provisions of Community law (Case C-506/04 Wilson [2006] ECR I-0000, paragraphs 34 and 35, and the case-law there cited).
30. Secondly, under equally settled case-law, in the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where questions submitted by national courts concern the interpretation of a provision of Community law, the Court of Justice is bound, in principle, to give a ruling (see, in particular, Case C286/02 Bellio F.lli [2004] ECR I3465, paragraph 27, and Case C217/05 Confederacion Española de Empresarios de Estaciones de Servicio [2006] ECR I0000, paragraphs 16 and 17, and the case-law there cited).
31. Thirdly, it is settled case-law that a reference from a national court may be refused only if it is quite obvious that the interpretation of Community law sought bears no relation to the actual facts of the main action or to its purpose, or where the problem is hypothetical or the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (Case C-238/05 Asnef-Equifax and Administracion del Estado [2006] ECR I-0000, paragraph 17, and the case-law there cited).
32. Furthermore, the Court has also held that the need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court should define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based (Case C205/05 Nemec [2006] ECR I0000, paragraph 25, and Confederacion Española de Empresarios de Estaciones de Servicio , paragraph 26, and the case-law there cited).
33. In that regard, according to the case-law of the Court, it is essential that the national court should give at the very least some explanation of the reasons for the choice of the Community provisions which it requires to be interpreted and on the link it establishes between those provisions and the national legislation applicable to the dispute (Nemec , paragraph 26, and Joined Cases C-94/04 and C-202/04 Cipolla and Others [2006] ECR I-0000, paragraph 38).
34. In the case in the main proceedings, while it is admittedly true that the Court cannot itself rule on the compatibility of Tragsa's legal status with Community law, there is nothing to prevent it from providing the canons of construction of Community law which will enable the referring court itself to rule on the compatibility of Tragsa's legal status with Community law.
35. In those circumstances, it is necessary to examine whether, in the light of the case-law referred to in paragraphs 31 to 33 of the present judgment, the Court has before it the factual and legal material necessary to give a useful answer to the questions submitted to it. | C-295/05
Asemfo | 36-38 | ECT-234 | 36. As regards the second and third questions, it is important to point out that the order of reference sets out, briefly but precisely, the facts which gave rise to the main proceedings and the relevant provisions of the applicable national law.
37. Indeed, it is clear from that decision that those proceedings arose following a complaint lodged by Asemfo concerning Tragsa's legal status, since the latter can, according to Asemfo, carry out a large number of operations at the direct demand of the Administration, without compliance with the rules in respect of publicity set out in the directives relating to public procurement. In those proceedings, Asemfo maintains also that Tragsa, being a public undertaking, cannot be entitled, under the pretext of being a technical service of the Administration, to privileged treatment as regards the rules governing public procurement.
38. In addition, in connection with the second and third questions, the order of reference sets out, referring to the Court's case-law, first, the reasons for which the national court requests the interpretation of the directives relating to public procurement and, second, the link between the relevant Community legislation and the national legislation applicable to the matter. | C-295/05
Asemfo | 39-45 | ECT-234 | 39. As regards the first question, which concerns the point whether the body of rules governing Tragsa is contrary to Article 86(1) EC, it is appropriate to point out that, according to that article, in the case of public undertakings and undertakings to which Member States grant special or exclusive rights, Member States are not to enact or maintain in force any measure contrary to the rules contained in the EC Treaty, in particular to those rules provided for in Articles 12 EC and 81 EC to 89 EC inclusive.
40. It follows from the clear terms of Article 86(1) EC that it has no independent effect in the sense that it must be read in conjunction with the relevant rules of the Treaty.
41. It follows from the order of reference that the relevant provision referred to by the national court is Article 86(1) EC in conjunction with Article 82 EC.
42. In that regard, there is no precise information in the order for reference concerning the existence of a dominant position, its unlawful exploitation by Tragsa or the effect of such a position on trade between the Member States.
43. In addition, it seems that, by the first question, the national court refers, in essence, to operations capable of being regarded as public contracts, a premise on which the Court is, in any event, requested to rule in the second question.
44. It follows therefore from the foregoing that, in contrast to the second and third questions, the Court does not have before it the factual and legal material necessary to give a useful answer to the first question.
45. It follows that, whilst the first question must be declared to be inadmissible, the reference for a preliminary ruling is admissible as regards the two other questions. | C-220/05
Auroux | 21-27 | ECT-234 | 21. The municipality of Roanne and the French Government submit, as a preliminary point, that the reference for a preliminary ruling is inadmissible.
22. The municipality of Roanne submits that, by enacting Law No 2005-809, the French legislature retroactively validated public development agreements which were concluded without having been preceded by an advertising procedure and a call for competition. As the national court is obliged to apply French law, and to find that the agreement has been validated by that law, the interpretation of Community law requested is no longer necessary in order to resolve the dispute in the main proceedings.
23. The French Government asserts that the reference for a preliminary ruling wrongly treats the agreement at issue as a development agreement within the meaning of Article L.300-4 of the Town Planning Code, in the version in force at the material time. It submits that it concerns, in reality, merely the construction of buildings. It follows that the question whether an agreement for the implementation of a development project constitutes a public works contract within the meaning of the Directive is inadmissible, since it bears no relation to the purpose and the actual facts of the dispute.
24. It is common ground that both the municipality of Roanne and the French Government plead that the reference for a preliminary ruling is inadmissible based on considerations relating to the interpretation of French law and the classification of the facts forming the basis of the dispute in the main proceedings in the light of that law.
25. The Court has consistently held that the procedure laid down in Article 234 EC is based on a clear separation of functions between national courts and tribunals and the Court of Justice, and the latter is empowered to rule only on the interpretation or the validity of the Community acts referred to in that article. In that context, it is not for the Court to rule on the interpretation of national laws or regulations or to decide whether the referring court's interpretation of them is correct (see, to that effect, Case 27/74 Demag [1974] ECR 1037, paragraph 8; Case C-347/89 Eurim-Pharm [1991] ECR I-1747, paragraph 16; and Case C-246/04 Turn- und Sportunion Waldburg [2006] ECR I-589, paragraph 20).
26. Similarly, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see Case C-448/01 EVN and Wienstrom [2003] ECR I-14527, paragraph 74, and Case C-145/03 Keller [2005] ECR I-2529, paragraph 33). Consequently, where the questions submitted concern the interpretation of Community law, the Court is in principle bound to give a ruling.
27. It follows that the pleas of inadmissibility raised by the municipality of Roanne and the French Government must be rejected and the reference for a preliminary ruling be declared admissible. | C-6/05
Medipac-Kazantzidis | 30-34 | ECT-234 | 30. Regarding, in the first place, the applicability of Directive 93/36, it is common ground that it applies only to contracts the value of which is equal to or greater than the threshold laid down in Article 5(1) of that directive (see, to that effect, order in Case C59/00 Vestergaard [2001] ECR I-9505, paragraph 19). The file shows that the value of the contract at issue in the main proceedings is EUR 131 500 (including VAT), which is lower than the threshold of application laid down in that directive.
31. In those circumstances, the Court, pursuant to Article 104(5) of its Rules of Procedure, made a written request for clarifications from the national court as to the reasons why it considered that Directive 93/36 was applicable to the contract. That court replied that, for procedural reasons, it was not able to answer such a request. Consequently, the Court decided to hold a hearing, during which the Greek Government confirmed that the value of the contract was lower than the threshold for application of that directive and maintained that the directive did not apply to the main proceedings. The Court accordingly finds that the Austrian Government is correct in arguing that, in those circumstances, an interpretation of Directive 93/36 has no bearing on the outcome of those proceedings.
32. However, a useful reply to the questions referred by the national court calls for the consideration of certain general principles applicable to public procurement.
33. The Court notes that the national court has categorised Venizelio-Pananio as a contracting authority'. That classification is also accepted by the Greek Government, which stated at the hearing that that hospital is a body governed by public law equated with the State. According to settled case-law, even if the value of a contract which is the subject-matter of an invitation to tender does not attain the threshold of application of the directives by which the Community legislature has regulated the field of public procurement, and the contract in question therefore does not fall within the scope of application of those directives, contracting authorities awarding contracts are nevertheless bound to abide by the general principles of Community law, such as the principle of equal treatment and the resulting obligation of transparency (see, to that effect, Case C324/98 Telaustria and Telefonadress [2000] ECR I10745, paragraphs 60 and 61; order in Vestergaard , paragraphs 20 and 21; Case C231/03 Coname [2005] ECR I7287, paragraphs 16 and 17, and Case C458/03 Parking Brixen [2005] ECR I8585, paragraphs 46 to 48).
34. Admittedly, the national court does not refer directly in its reference for a preliminary ruling to the general principles of Community law. It is settled case-law, however, that in order to provide a satisfactory answer to a national court which has referred a question to it, the Court may deem it necessary to consider rules of Community law to which the national court has not referred in its reference (Case 35/85 Tissier [1986] ECR 1207, paragraph 9; Case C-315/88 Bagli Pennacchiotti [1990] ECR I-1323, paragraph 10; Case C-107/98 Teckal [1999] ECR I8121, paragraph 39, and Telaustria and Telefonadress , paragraph 59). | C-6/05
Medipac-Kazantzidis | 35-36 | ECT-234 | 35. Second, regarding the Austrian Government's line of argument relating to insufficient information on the facts of the main proceedings, the Court notes that the information contained in the reference for a preliminary ruling has been supplemented by the written observations submitted to the Court. Moreover, an audience has been held, which has enabled the Greek and Austrian Governments and the Commission to submit additional observations. The Court is thus sufficiently enlightened to be able to respond to the questions referred.
36. In the light of the foregoing, the Court finds that the reference for a preliminary ruling is admissible and that it is appropriate to reply to the questions referred by the national court. | C-226/04 & C-228/04
Cascina | 18-19 | ECT-234 | 18. It must be observed as a preliminary point that, in accordance with the provisions of Title II of the Directive, the application of its provisions varies according to the categorisation of the services in question. However, since that categorisation requires an assessment of the facts, it falls within the jurisdiction of the national court, and the Court will therefore interpret the provisions of the Directive to which the reference for a preliminary ruling refers. Furthermore, it is clear from that reference that it concerns a restricted procedure within the meaning of the Directive.
19. By its questions, the national court wishes in substance to know, firstly, whether subparagraphs (e) and (f) of the first paragraph of Article 29 must be interpreted as precluding a national provision which refers to the position of service providers who are not in compliance' with social security or tax obligations. Secondly, it wishes to know the time at which the service provider must provide evidence that he has complied with those obligations. Thirdly, it is unsure whether a service provider who is late with payment of its social security contributions or taxes, has been authorised by the competent authorities to make payment of those contributions or taxes in instalments, or has brought administrative or judicial proceedings to contest the existence or amount of its social security or tax obligations must be regarded as not having fulfilled his social security or tax obligations for the purposes of subparagraphs (e) and (f) of the first paragraph of Article 29 of the Directive. | C-15/04
Koppensteiner | 23-28 | ECT-234 | 23. The Austrian Government submits inter alia that as the contract in the case in the main proceedings was awarded, after the second contract award procedure, to an undertaking other than Koppensteiner and the demolition works have already been completed, the answer to the questions is no longer of any interest since Koppensteiner can now only obtain damages, which are in any event provided for by the BVergG. Moreover, the national court does not have jurisdiction to set aside the withdrawal decision and the answer to the questions will not assist it in resolving the dispute in the main proceedings.
24. BIG takes the view that the second question is merely hypothetical and therefore inadmissible. Given that the contract has been awarded, the question has no relevance to the outcome of the main case since it is impossible for the contracting authority to take a decision to withdraw that invitation to tender after the event.
25. The Court observes that it is solely for the national courts before which actions are brought, and which must bear the responsibility for the subsequent judicial decisions, to determine in the light of the special features of each case both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they submit to the Court. Consequently, since the questions referred involve the interpretation of Community law, the Court is, in principle, obliged to give a ruling (see, inter alia, Case C-373/00 Adolf Truley [2003] ECR I-1931, paragraph 21).
26. Although the Austrian Government and BIG have rightly noted that the Court must decline to rule on a question referred for a preliminary ruling where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose or where the problem is hypothetical (see, inter alia, Adolf Truley , cited above, paragraph 22), it is not obvious that the questions asked in this case have such characteristics.
27. In this case, the national court stated in its decision that the questions are asked in order to enable it to decide whether the application to have the withdrawal of the first invitation to tender set aside is inadmissible and if so on what grounds.
28. It follows that the reference for a preliminary ruling is admissible. | C-462/03 & C-463/03
Strabag | 29-33 | ECT-234 | 29. It ought to be borne in mind that, in accordance with settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C-390/99 Canal Satélite Digital [2002] ECR I-607, paragraphs 18 and 19; Case C-373/00 Adolf Truley [2003] ECR I-1931, paragraphs 21 and 22, and Case C-380/01 Schneider [2004] ECR I-1389, paragraphs 21 and 22).
30. In the present case, it is not apparent that the questions referred by the national court fall within one of those hypotheses.
31. First, it cannot be maintained that the interpretation sought of Community law bears no relation to the actual facts of the main actions or their purpose, or that the matter raised is hypothetical, for the Bundesvergabeamt's assessment of the lawfulness of resort to the negotiated procedure for procurement contracts depends, in particular, on the question whether or not the infrastructure projects at issue in the main proceedings fall within the material scope of Directive 93/38.
32. Second, the national court has provided the Court with all the information necessary to enable it to give a useful answer to the questions referred.
33. The questions must therefore be held to be admissible. | C-458/03
Parking Brixen | 31-36 | ECT-234 | 31. By its first question, the referring court is asking whether the award of the management of the public pay car parks in question in the main proceedings involves a public service contract within the meaning of Directive 92/50, or a public service concession.
32. It is appropriate to state at the outset that it is not for the Court to classify specifically the transactions at issue in the main proceedings. That is within the jurisdiction of the national court alone. The Court's role is confined to providing the national court with an interpretation of Community law which will be useful for the decision which it has to take in the dispute before it.
33. For that purpose the Court may deduce from the case-file of the main proceedings the matters which are relevant to the interpretation of Community law.
34. In that context it is appropriate to note that the main proceedings concern the award of the management of two distinct car parks: first, that on plot 491/11 and, second, that on plot 491/6.
35. As regards the above-ground car park on plot 491/11, the order for reference states only that no agreement was concluded for its operation. In particular, that decision contains no information about the conditions for remunerating the car park operator.
36. In those circumstances, the Court can state only that it does not have sufficient information to give a useful interpretation of Community law in reply to that part of the question. | C-234/03
Contse | 22-23 | S2-na [C3-1.4]
S2-na [C3-17]
ECT-43
ECT-49
ECT-234
ECT-EquTran | 22. As a preliminary point, it should be observed that the case in the main proceedings, contrary to the Spanish Government's submissions, appears to concern a public service contract and not a management contract for a service categorised as a concession. As Insalud stated at the hearing, the Spanish administration remains liable for all harm suffered on account of a failure of the service. That factor, which implies that there is no transfer of risks connected to the provision of the service concerned, and the fact that the service is paid for by the Spanish health administration, support that conclusion. It is, however, for the national court to determine whether in fact that is the case.
23. In any event, since the questions from the national court are based on the fundamental rules laid down by the Treaty, the following considerations will be helpful to it even if this contract is a public service concession not covered by Directive 92/50. It is in the light of primary law and, in particular, of the fundamental freedoms provided for by the Treaty that the consequences in Community law of the award of such concessions must be examined (see, in particular, Case C-231/03 Coname [2005] ECR I-0000, paragraph 16). | C-234/03
Contse | 34 | ECT-234 | 34. As regards the division of jurisdiction between the Community judicature and national courts, it is for the national court to determine whether those conditions are fulfilled in the case pending before it. The Court, when giving a preliminary ruling, may, where appropriate, provide clarification designed to give the national court guidance in its interpretation (see, to that effect, Case C-79/01 Payroll and Others [2002] ECR I-8923, paragraphs 28 and 29). In that connection, and in answer to the questions referred by the national court, it is for that court to take account of the factors stated in the following paragraphs. | C-234/03
Contse | 49-50 | ECT-234 | 49. It should also be recalled that the evaluation criteria, like any national measure, must comply with the principle of non-discrimination as derived from the provisions of the Treaty relating to the freedom to provide services, and that restrictions on that freedom must themselves fulfil four conditions which are set out in the case-law cited in paragraph 25 of this judgment.
50. As was stated in paragraph 34 of this judgment, it is for the national court to determine whether those conditions are fulfilled in the case pending before it, taking account of the factors set out in the following paragraphs. | C231/03
Coname | 10 | ECT-234 | 10. The present judgment is therefore based on the premiss that the main proceedings concern the award of a concession, a premiss which it is for the referring court to verify. | C-21/03
Fabricom | 37-40 | ECT-234 | 37. By the second question referred in Cases C-21/03 and C-34/03, the national court asks whether the answer to the first question is different where Directives 92/50, 93/36, 93/37 and 93/38, considered in conjunction with the principle of proportionality, freedom of trade and industry and the right to property, are interpreted as referring only to private undertakings or to undertakings which have provided services for valuable consideration.
38. That question is based on a hypothesis which cannot be accepted.
39. There is nothing in those directives to indicate that they may be interpreted as referring, as regards their applicability to undertakings which are participating or intend to participate in a public contract procedure, only to private undertakings or to undertakings which have provided services for valuable consideration. Furthermore, the principle of equal treatment precludes the application of a rule such as that at issue in the main proceedings solely to private undertakings or to undertakings which have provided services for valuable consideration and which have carried out certain preparatory works where it would not apply to undertakings not having one of those qualities which have also carried out such preparatory work.
40. Accordingly, there is no need to answer the second question referred in Cases C21/03 and C-34/03. | C-247/02
Sintesi | 18-24 | ECT-234 | 18. The Italian Government has doubts as to the admissibility of the reference, on the ground that the questions are purely theoretical.
19. The Commission of the European Communities questions the very applicability of Article 30 of the Directive to the main proceedings, in so far as the award procedure was undertaken by a works concessionaire.
20. It states that under Article 3(3) and (4) of the Directive, only a public works concessionaire which is itself one of the contracting authorities referred to in Article 1(b) of the Directive is required, in respect of the work to be carried out by third parties, to comply with all the provisions of the Directive. Public works concessionaires other than contracting authorities, on the other hand, are only required to observe the rules on advertising set out in Article 11(4), (6), (7) and (9) to (13) and Article 16 of the Directive.
21. In that regard, it is settled case-law that the procedure provided for by Article 234 EC is an instrument of cooperation between the Court of Justice and national courts (see, inter alia, Case C-343/90 Lourenço Dias [1992] ECR I-4673, paragraph 14, and Case C-314/01 Siemens and ARGE Telekom [2004] ECR I0000, paragraph 33, and the case-law cited there).
22. In the context of that cooperation, it is for the national court or tribunal seised of the dispute, which alone has direct knowledge of the facts giving rise to the dispute and must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, inter alia, Lourenço Dias , cited above, paragraph 15; Case C-390/99 Canal Satélite Digital [2002] ECR I-607, paragraph 18; and Siemens and ARGE Telekom , cited above, paragraph 34).
23. In the present case, it is by no means clear that the interpretation of Article 30 will be of no assistance in the resolution of the main dispute since, as stated in the decision for reference, under the contract concluded between the City of Brescia and Sintesi, the latter, in its capacity as concessionaire, was required, for the purpose of the works at issue in the main proceedings, to launch a restricted tender procedure, at European level, in accordance with the Community rules on public works.
24. The reference for a preliminary ruling must therefore be held to be admissible. | C-448/01
EVG & Wienstrom | 73-83 | ECT-234 | 73 By these two questions, which can be examined together, the Bundesvergabeamt is essentially asking whether Article 2(1)(b) of Directive 89/665 precludes a provision of national law such as point 2 of Paragraph 117(1) of the BVergG, which makes the annulment in review proceedings of an unlawful decision by a contracting authority dependent on proof that the unlawful decision materially influenced the outcome of the procurement procedure and whether, having regard to Article 26 of Directive 93/36 in particular, the answer to that question must differ if the proof of that influence derives from the examination by the review body of whether the ranking of the tenders actually submitted would have been different had they been re-evaluated disregarding the unlawful award criterion.
74 It should be noted at the outset that, according to settled case-law, in the context of the cooperation between the Court of Justice and national courts provided for by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling (see, inter alia, Case C-415/93 Bosman [1995] ECR I-4921, paragraph 59; PreussenElektra, paragraph 38; Case C-390/99 Canal Satélite Digital [2002] ECR I-607, paragraph 18; Case C-153/00 Der Weduwe [2002] ECR I-11319, paragraph 31, and Case C-318/00 Bacardi-Martini and Cellier des Dauphins [2003] ECR I-905, paragraph 40).
75 However, the Court has also stated that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction (see PreussenElektra, paragraph 39, and Canal Satélite Digital, paragraph 19). The spirit of cooperation which must prevail in preliminary ruling proceedings requires the national court for its part to have regard to the function entrusted to the Court of Justice, which is to contribute to the administration of justice in the Member States and not to give opinions on general or hypothetical questions (Der Weduwe, paragraph 32, and Bacardi-Martini and Cellier des Dauphins, paragraph 41).
76 Thus the Court must decline to give a preliminary ruling on a question submitted by a national court where it is quite obvious that the interpretation or the assessment of the validity of a provision of Community law sought by that court bears no relation to the actual facts of the main action or its purpose, or where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, in particular, Bosman, paragraph 61; Case C-437/97 EKW and Wein & Co. [2000] ECR I-1157, paragraph 52; Case C-36/99 Idéal Tourisme [2000] ECR I-6049, paragraph 20, and Bacardi-Martini and Cellier des Dauphins, paragraph 42).
77 More specifically, it must be borne in mind that Article 234 EC is an instrument of judicial cooperation, by means of which the Court provides the national courts with the points of interpretation of Community law which may be helpful to them in assessing the effects of a provision of national law at issue in the disputes before them (see, in particular, Case C-300/01 Salzmann [2003] ECR I-0000, paragraph 28).
78 It follows that in order that the Court may perform its task in accordance with the Treaty, it is essential for national courts to explain, when the reasons are not clear beyond doubt from the file, why they consider that a reply to their questions is necessary to enable them to give judgment (see, in particular, Bacardi-Martini and Cellier des Dauphins, paragraph 43).
79 In the present case, there is no information to that effect before the Court.
80 On the one hand, as observed in paragraph 23 of this judgment, the object of the review proceedings brought in the case at issue is, inter alia, the annulment of the invitation to tender in its entirety and the annulment of a series of individual conditions in the contract documents and of a number of decisions of the contracting authority relating to the requirements established by the award and selection criteria used in that tender procedure.
81 Therefore, in the light of the information in the order for reference, it is apparent that all the decisions whose annulment is sought in the main proceedings have a decisive effect on the outcome of the tender procedure.
82 On the other hand, the Bundesvergabeamt has not provided any explanation as to the precise reasons for which it considers that it needs an answer to the question of the compatibility with the Community legislation on public procurement of the condition laid down in subparagraph 2 of Paragraph 117(1) of the BVergG in order to give judgment in the case pending before it.
83 Therefore, since there is no information before the Court to show that an answer to the second and third questions is needed in order to resolve the dispute in the main proceedings, those questions must be regarded as hypothetical and, accordingly, inadmissible. | C-424/01-S
CS Communications | 21-25 | ECT-234 | 21 Relying on the Bundesvergabeamt's decision of 11 July 2001 to make a reference in other proceedings on the award of public contracts, registered at the Court Registry under number C-314/01 and currently pending before the Court, the Commission has expressed doubt as to the judicial character of the referring body, on the ground that it had acknowledged in that decision that its decisions do not comprise directions to the contracting authority that are enforceable. In those circumstances, the Commission wishes to know whether the questions referred by the Bundesvergabeamt in the present proceedings are admissible, having regard to the case-law of the Court and in particular Case C-134/97 Victoria Film [1998] ECR I-7023, paragraph 14, and Case C-178/99 Salzmann [2001] ECR I-4421, paragraph 14, according to which a national court may refer a question to the Court only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature.
22 In that regard, it must be observed, firstly, that Paragraph 116(4) of the BVergG indicates expressly that the Bundesvergabeamt, hearing an application for interim relief, may stay the award procedure as a whole, or only certain decisions of the contracting authority, or order other appropriate measures.
23 Secondly, it is clear from Paragraph 116(6) that the orders made by the Bundesvergabeamt in the course of interlocutory proceedings are immediately enforceable, and that they are governed in that respect by the Law of 1991 on the enforcement of administrative decisions.
24 As the Commission has not put forward any argument to cast doubt on the binding nature of those orders there is no reason, having regard to the provisions of Paragraph 116(4) and (6) of the BVergG, to question the judicial character of the Bundesvergabeamt.
25 It follows that the questions referred by that body are admissible. | C-421/01
Traunfellner | 21-24 | ECT-234 | 21 Under Article 234 EC, which is based on a clear separation of functions between national courts and tribunals and the Court of Justice, the latter is empowered to rule on the interpretation or validity of Community provisions only on the basis of the facts which the national court or tribunal puts before it. However, it is for the national court or tribunal to apply the rules of Community law to a specific case. No such application is possible without a comprehensive appraisal of the facts of the case (Case C-107/98 Teckal [1999] ECR I-8121, paragraphs 29 and 31). The Court therefore has no jurisdiction to give a ruling on the facts in the main proceedings or to apply the rules of Community law which it has interpreted to national measures or situations, since those questions are matters for the exclusive jurisdiction of the national court or tribunal (see Case C-318/98 Fornasar and Others [2000] ECR I-4785, paragraph 32).
22 In the present case, the Bundesvergabeamt is not, by its first question, seeking to obtain from the Court an interpretation of Article 19 of the Directive to enable it then to assess whether Traunfellner's tender is a variant within the meaning of that article but is asking the Court to make that assessment itself.
23 Such an assessment would, however, lead the Court to apply itself the aforementioned Community provision to the dispute brought before the Bundesvergabeamt, a task which, in accordance with the case-law cited in paragraph 21 of this judgment, does not fall within the jurisdiction conferred on the Court by Article 234 EC.
24 It follows that the Court has no jurisdiction to answer the first question. | C-421/01
Traunfellner | 35-39 | ECT-234 | 35 By these questions, which are referred only in the event that the third question is answered in the affirmative, the national tribunal seeks clarification as to the effect which irregularities in the assessment of variants may have on the subsequent conduct of the procurement procedure. In particular, the national tribunal is uncertain whether, in the event of such irregularities, the contracting authority may conclude the procurement procedure in question by awarding the contract (Question 4(a)) and, if so, whether the contracting authority must reject the variants proposed without examining their contents in view of the failure to define the award criteria for assessing the technical differences between the variant and the work for which tenders have been invited (Question 4(b)) or whether it must accept the variant where it is the lowest tender (Question 5).
36 The defendant in the main proceedings takes the view that Question 4(a) must be declared inadmissible as it bears no relation to the actual facts of the case in the main proceedings. On the same ground, the Austrian Government, which also points out that, under the BVergG, the national tribunal's competence is limited once the contract has been awarded (see paragraph 19 of this judgment), takes the view that the Court should declare Questions 4(a), 4(b) and 5 to be inadmissible.
37 It is settled case-law that, in the context of the cooperation between the Court of Justice and national courts and tribunals provided for in Article 234 EC, it is solely for the national court or tribunal before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver its decision and the relevance of the questions which it submits to the Court. The Court may refuse to rule on a question referred for a preliminary ruling by a national court or tribunal only where it is quite obvious that the interpretation of Community law sought bears no relation to the actual facts of the main proceedings or to their purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted (see, in particular, Case C-399/98 Ordine degli Architetti and Others [2001] ECR I-5409, paragraph 41).
38 In the present case, it is clear from the case-file that the procurement procedure in question has already been concluded, that the contract has already been awarded and that the proceedings before the national tribunal are concerned not with the legality of the decision on the award but rather with the legality of the decision by which the contracting authority rejected Traunfellner's alternative tender. The question whether that procedure was properly conducted after the latter decision is therefore not the subject of the dispute brought before the national tribunal. The fourth and fifth questions, however, relate precisely to that stage in the procurement procedure.
39 It follows that those questions must be regarded as hypothetical and must therefore be declared inadmissible. | C-410/01
Fritsch | 19-22 | ECT-234 | 19 On the basis of the order for reference made by the Bundesvergabeamt on 11 July 2001 in another case concerning public procurement, registered at the Court Registry under number C-314/01 and currently pending before the Court, the Commission expresses doubts as to the judicial nature of the body making the reference on the ground that it acknowledged in the order that its decisions `do not contain binding, enforceable directions addressed to the contracting authority'. In those circumstances, the Commission has doubts as to the admissibility of the questions referred for a preliminary ruling by the Bundesvergabeamt in the present proceedings in the light of the case-law of the Court, in particular Case C-134/97 Victoria Film [1998] ECR I-7023, paragraph 14, and Case C-178/99 Salzmann [2001] ECR I-4421, paragraph 14, according to which a national court or tribunal may refer a question to the Court only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature.
20 It should be noted in that regard, first, that after the award of the contract the Bundesvergabeamt is competent, under Paragraph 113(3) of the BVergG, to determine whether as a result of an infringement of the relevant national legislation the contract has not been awarded to the best tenderer.
21 Secondly, it is apparent from the express wording of Paragraph 125(2) of the BVergG that a declaration made by the Bundesvergabeamt under Paragraph 113(3) of that Law not only constitutes a condition for admissibility of any claim for damages brought before the civil courts by reason of a culpable breach of that legislation but also binds the parties to the proceedings before the Bundesvergabeamt and the civil court hearing the case.
22 In those circumstances, neither the binding nature of a decision taken by the Bundesvergabeamt under Paragraph 113(3) of the BVergG nor, accordingly, the judicial nature of the latter can reasonably be called into question. 23 It follows that the Court has jurisdiction to reply to the questions raised by the Bundesvergabeamt. | C-315/01
GAT | 25-29 | ECT-234 | 25 On the basis of the order for reference made by the Bundesvergabeamt on 11 July 2001 in another case concerning public procurement, registered at the Court Registry under number C-314/01 and currently pending before the Court, the Commission expresses doubts as to the judicial nature of the body making the reference on the ground that it acknowledged in the order that its decisions `do not contain binding, enforceable directions addressed to the contracting authority'. In those circumstances, the Commission has doubts as to the admissibility of the questions referred for a preliminary ruling by the Bundesvergabeamt in the present proceedings in the light of the case-law of the Court, in particular Case C-134/97 Victoria Film [1998] ECR I-7023, paragraph 14, and Case C-178/99 Salzmann [2001] ECR I-4421, paragraph 14, according to which a national court or tribunal may refer a question to the Court only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature.
26 It should be noted in that regard, first, that after the award of the contract the Bundesvergabeamt is competent, under Paragraph 113(3) of the BVergG, to determine whether as a result of an infringement of the relevant national legislation the contract has not been awarded to the best tenderer.
27 Secondly, it is apparent from the express wording of Paragraph 125(2) of the BVergG that a declaration made by the Bundesvergabeamt under Paragraph 113(3) of that Law not only constitutes a condition for admissibility of any claim for damages brought before the civil courts by reason of a culpable breach of that legislation but also binds the parties to the proceedings before the Bundesvergabeamt and the civil court hearing the case.
28 In those circumstances, neither the binding nature of a decision taken by the Bundevergabeamt under Paragraph 113(3) of the BVergG nor, accordingly, the judicial nature of the latter can reasonably be called into question.
29 It follows that the Court has jurisdiction to reply to the questions raised by the Bundesvergabeamt. | C-315/01
GAT | 33-39 | ECT-234 | 33 The Court observes, first, that a division of the power provided for in Article 2(1)(c) of Directive 89/665 between several courts is not contrary to the directive, since Article 2(2) expressly allows the Member States to confer the powers specified in paragraph 1 of that provision on separate bodies responsible for different aspects of the review procedure.
34 Secondly, although after the award of the contract the Bundesvergabeamt is not competent to award damages to the person harmed by the infringement of Community law on public procurement or the national rules implementing that law, but only to find that as a result of that infringement the contract has not been awarded to the best tenderer, that finding, as is clear from paragraph 27 of this judgment, not only constitutes a condition for admissibility of any claim for damages brought before the civil courts by reason of a culpable infringement of that legislation but also binds the parties to the proceedings before the Bundesvergabeamt and the civil court hearing the case.
35 In those circumstances, it must be concluded that the Bundesvergabeamt, even if it is hearing a case brought under Paragraph 113(3) of the BVergG, conducts a review procedure as required by Directive 89/665 and, as has already been seen in paragraph 28 of this judgment, is called upon to adopt a binding decision.
36 Furthermore, as is confirmed by Paragraph 117(3) of the BVergG, in proceedings brought under Paragraph 113(3) of that Law the Bundesvergabeamt is competent to determine the existence of the alleged infringement. It is possible that, in the exercise of that competence, it may consider it necessary to refer questions to the Court for a preliminary ruling.
37 Where such questions, which the Bundesvergabeamt considers necessary to enable it to determine the existence of illegality, concern the interpretation of Community law they cannot be declared inadmissible (see to this effect, inter alia, Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 38, and Case C-153/00 Der Weduwe [2002] ECR I-11319, paragraph 31).
38 On the other hand, the Bundesvergabeamt, which is not directly competent to award damages to persons harmed by unlawfulness, is not entitled to refer to the Court for a preliminary ruling questions relating to the award of damages or the conditions for awarding them.
39 It is thus clear that all the questions referred for a preliminary ruling in this case by the Bundesvergabeamt are admissible except Question 5, which specifically seeks to know under what conditions a tenderer who claims to have been harmed by the adoption of an unlawful award criterion is entitled to damages. | C314/01
Siemens | 36-39 | ECT-234 | 33. According to settled case-law in this regard, the procedure provided for by Article 234 EC is an instrument of cooperation between the Court of Justice and national courts (see, inter alia, Case C-343/90 Lourenço Dias [1992] ECR I-4673, paragraph 14, and Case C-112/00 Schmidberger [2003] ECR I5659, paragraph 30, and the case-law cited therein).
34. In the context of that cooperation, it is for the national court or tribunal seised of the dispute, which alone has direct knowledge of the facts giving rise to the dispute and must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, inter alia, Lourenço Dias , cited above, paragraph 15, Case C390/99 Canal Satélite Digital [2002] ECR I607, paragraph 18, and Schmidberger , cited above, paragraph 31).
35. The fact none the less remains that it is for the Court, if need be, to examine the circumstances in which the case was referred to it by the national court or tribunal, in order to assess whether it has jurisdiction and in particular to determine whether the interpretation of Community law which is requested bears any relation to the actual nature and subject-matter of the main proceedings, in order that the Court will not be required to give opinions on general or hypothetical questions. If it should appear that the question raised is manifestly irrelevant for the purposes of deciding the case, the Court must declare that there is no need to proceed to judgment (Case 244/80 Foglia [1981] ECR 3045, paragraph 21; Lourenço Dias , paragraph 20; Canal Satélite Digital , cited above, paragraph 19; and judgment of 30 September 2003 in Case C167/01 Inspire Art [2003] ECR I0000, paragraphs 44 and 45).
36. In the light of the foregoing, it is appropriate to examine whether the questions referred by the Bundesvergabeamt have remained relevant for the resolution of the disputes in the main proceedings, even though the Verfassungsgerichtshof annulled the Bundesvergabeamt's decision of 20 April 2001.
37. In this regard, it is clear from the order for reference that it is the fact that this decision of 20 April 2001 was not mandatorily enforceable in Austrian law that provided the essential grounds for the present request for a preliminary ruling, with the result that, since the annulment of that decision, those questions have become purely hypothetical, as is, moreover, emphasised by the Verfassungsgerichtshof in its judgment of 2 March 2002.
38. It must, however, be acknowledged that the possibility cannot be discounted that a reply to the second question, which incidentally concerns the scope of the Holst Italia judgment, will have a bearing on the resolution of the disputes in the main proceedings, particularly in the event that those disputes, following a finding that the award procedure followed by the Bundesvergabeamt pursuant to Paragraph 113(3) of the BVergG, was unlawful, were to be continued before the civil courts, which, under Austrian legislation, are the courts having jurisdiction to rule on a claim for compensation following the award of a contract.
39. In the light of the foregoing, the first, third and fourth questions need not be answered and the Court's reply should be confined to the second question. | C-59/01
Makedoniko | 55-56 | ECT-234 | 55 In the context of Article 234 EC the Court has no jurisdiction to rule either on the interpretation of provisions of national laws or regulations or on their conformity with Community law. It may, however, supply the national court with an interpretation of Community law that will enable that court to resolve the legal problem before it (Distribuidores Cinematograficos, paragraph 8, and Teckal, paragraph 33).
56 Furthermore, according to settled case-law, it is for the Court alone, where questions are formulated imprecisely, to extract from all the information provided by the national court and from the documents in the main proceedings the points of Community law which require interpretation, having regard to the subject-matter of those proceedings (Case C-168/95 Arcaro [1996] ECR I-4705, paragraph 21, and Teckal, paragraph 34). | C-18/01
Korhonen | 18-28 | ECT-234 | 18 Without there being any need to consider here whether or not the invitation to tender for the contract at issue in the main proceedings had to be the subject of publication in the Official Journal of the European Communities, the French Government's argument that there was no publication of the second invitation to tender must be rejected at the outset, since, as the Finnish Government stated at the hearing, that invitation to tender was published in supplement No 171 to the Official Journal of the European Communities of 3 September 1999.
19 As regards the French Government's doubts as to the need for the questions referred and the Commission's objections concerning the lack of detail as to the factual and legal context of the main proceedings, it should be recalled that, according to settled case-law, it is solely for the national courts before which actions are brought, and which must bear the responsibility for the subsequent judicial decision, to determine in the light of the special features of each case both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they submit to the Court. Consequently, since the questions referred involve the interpretation of Community law, the Court is, in principle, obliged to give a ruling (see, inter alia, Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 38; Case C-390/99 Canal Satélite Digital [2002] ECR I-607, paragraph 18; and Case C-373/00 Adolf Truley [2003] ECR I-0000, paragraph 21).
20 Moreover, it also follows from that case-law that the Court can refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see PreussenElektra, paragraph 39, Canal Satélite Digital, paragraph 19, and Adolf Truley, paragraph 22).
21 In the present case, it is not obvious that the questions referred by the national court fall within one of those hypotheses.
22 First, it cannot be maintained that the interpretation of Community law which is sought bears no relation to the actual facts or purpose of the main proceedings or is hypothetical, since the admissibility of the main proceedings depends in particular on the proper extent of the term `body governed by public law' in Article 1(b) of Directive 92/50.
23 Second, the national court has furnished the Court, albeit in summary fashion, with the material necessary to enable it to give a useful answer to the questions referred, in particular by stating in its account of the factual context of the main proceedings that the notice published in Virallinen lehti of 2 September 1999 mentioned as contracting authority the town of Varkaus acting `on behalf of the property company to be set up'.
24 In those circumstances, it cannot be excluded that Taitotalo, although lacking legal personality at the time of publication of the second call for tenders, played a decisive part in the award procedure at issue in the main proceedings.
25 It should also be noted that, in reply to a question put by the Court at the hearing, the Finnish Government explained that, under Finnish law, the founders of a company can act on behalf of the company before it is entered in the register of commerce, and on the date when the company is so registered it takes over all the previous commitments entered into on its behalf.
26 Such appears to have been the case in the main proceedings, since the national court observes that Taitotalo was entered in the register of commerce on 6 April 2000 and it was on that date that Korhonen and Others were informed by that company that their tenders had not been selected.
27 In those circumstances, it cannot be excluded that Taitotalo took over, on 6 April 2000, all the previous commitments entered into on its behalf by the town of Varkaus, and may on that basis be regarded as responsible for the award procedure at issue in the main proceedings.
28 In the light of the foregoing, the questions referred by the Kilpailuneuvosto must be declared admissible. | C-411/00
Swoboda | 25-34 | ECT-234 | 25. On the basis of the order for reference of the Bundesvergabeamt in Case C-314/01 Siemens and Arge Telekom & Partner pending before the Court, the Commission expresses doubts as to the judicial nature of the body making the reference on the ground that it acknowledged in the order that its decisions do not contain binding, enforceable directions addressed to the contracting authority. In those circumstances, the Commission has doubts as to the admissibility of the questions referred for a preliminary ruling by the Bundesvergabeamt in the present proceedings in the light of the case-law of the Court, in particular Case C-134/97 Victoria Film [1998] ECR I-7023, paragraph 14, and Case C-178/99 Salzmann [2001] ECR I-4421, paragraph 14, according to which a national court or tribunal may refer a question to the Court or tribunal only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature.
26. In that regard, it suffices to observe that the doubts expressed by the Commission as to the admissibility of the questions referred for a preliminary ruling on the ground that the decisions given by the Bundesvergabeamt are not binding, which was strongly contested during the hearing by both the ANB and the Austrian Government, are without relevance in the circumstances of the main proceedings.
27. As the Commission itself admitted during the hearing, in answer to a question put by the Court, the main case relates to the period after the award of the contract. However, it is common ground that in Austrian law both the parties and the civil courts which are seised of a claim in damages during that time are bound in any case by the findings of the Bundesvergabeamt.
28. In those circumstances, the binding nature of the decision of the Bundesvergabeamt in the main case cannot reasonably be called into question.
29. The ANB, for its part, doubts the admissibility of the questions referred for the following reasons. First, the applicant in the main proceedings did not participate in the tendering procedure in question either as a tenderer or as a candidate, so that it has no direct individual right on which it can rely vis-à-vis the contracting authority. Second, the Court of Justice has already ruled on similar facts and questions in Tögel, so that the questions referred should either be dismissed for lack of relevance or dealt with by way of a reasoned order in accordance with Article 104(3) of the Court's Rules of Procedure. Third, the contract at issue in the main proceedings did not contain any crossborder aspect, which relieves the contracting authority of the obligation to award the contract by a public tendering procedure at Community level. The ANB refers in that respect to Case C-108/98 RI.SAN. [1999] ECR I-5219, also concerning a public tendering procedure, in which the Court held that Article 55 of the EC Treaty (now Article 45 EC) does not apply in a situation such as that in the main proceedings in which all the facts are confined to ... a single Member State and which does not therefore have any connecting link with one of the situations envisaged by Community law in the area of freedom of movement for persons and freedom to provide services.
30. In relation, first, to the ANB's argument that the applicant in the main proceedings did not participate in the public tendering procedure at issue in the main proceedings as a candidate or a tenderer, it is sufficient to observe that the right to bring proceedings is a question governed by the national rules of procedure. It is not for the Court of Justice to rule on the application of those rules in the circumstances at issue in the main proceedings.
31. Next, concerning the argument that in Tögel the Court of Justice has already ruled on comparable facts and questions, making it unnecessary to rule in the present case, or at least enabling it to decide by reasoned order, it must be observed that the facts and questions referred in the present case appear to be substantially different from those which gave rise to the judgment in Tögel. In that judgment the Court of Justice was not called upon to rule, in particular, on the question whether a contract for a single purpose but composed of various services, some falling within Annex I A to Directive 92/50 and others within Annex I B, should be classified in accordance with its main purpose.
32. In any case, Article 104(3) of the Rules of Procedure permits the Court to give a decision by reasoned order in the three situations mentioned therein, but by no means requires it to do so; the Court always retains in such cases the right to rule by means of a judgment.
33. Finally, as regards the argument that it was unnecessary to bring the existence of the contract at issue in the main proceedings to the knowledge of traders established in Member States other than the Austrian Republic because the contract had no cross-border aspect, it must be observed that that fact, supposing it to be established, is not such as to relieve the contracting authority of its duty to comply with the obligations set down in Directive 92/50. As stated expressly in the 20th recital in the preamble, the very purpose of the directive is to improve access for suppliers of services to the contract award procedures in order to eliminate practices which restrict competition in general and participation in contracts by nationals of other Member States in particular.
34. In the light of the above, the questions referred by the Bundesvergabeamt for a preliminary ruling must be declared admissible. | C-373/00
Truley | 19-26 | ECT-234 | 19 Referring to Case C-186/90 Durighello [1991] ECR I-5773 and Case C-134/95 USSL N_ 47 Di Biella [1997] ECR I-195, in which the Court held, inter alia, that a reference for a preliminary ruling made by a national court is to be rejected where it is quite obvious that the interpretation of Community law sought by that court bears no relation to the actual facts of the main action or its purpose, Bestattung Wien submits that the question whether or not it has the status of an awarding authority is irrelevant to the case in the main proceedings.
20 In its view, it is clear from the actual wording of Paragraph 99 of the WLVergG that the Vergabekontrollsenat des Landes Wien is only competent to find, after the award of a contract, that the contract was not awarded to the tenderer who submitted the best tender as a result of an infringement of the provisions of that law and that review proceedings can be brought only if the decision which is alleged to be unlawful was decisive for the outcome of the procurement procedure. In the main proceedings, the tender submitted by Truley was given the second to last place in terms of the prices quoted for coffin fittings, with the result that it has no legal interest in obtaining the remedy it seeks as it was, in any event, not the best bidder within the meaning of Paragraph 99(1) of the WLVergG and, consequently, the contract could never have been awarded to it.
21 Suffice it to point out in this regard that, according to the settled case-law of the Court, in particular the above judgment in Durighello, cited by Bestattung Wien, it is solely for the national courts before which actions are brought, and which must bear the responsibility for the subsequent judicial decision, to determine in the light of the special features of each case both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they submit to the Court (Durighello, paragraph 8). Consequently, since the questions referred involve the interpretation of Community law, the Court is, in principle, obliged to give a ruling.
22 Moreover, the Court has also consistently held that it may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 39, and Case C-390/99 Canal Satélite Digital [2002] ECR I-607, paragraph 19).
23 In the present case, it is not entirely obvious that the questions referred by the national court fall within one of those situations.
24 First, there are no grounds for arguing that the interpretation of Community law sought bears no relation to the actual facts or the purpose of the main action since the assessment of the lawfulness of the decision on the award of the contract at issue in the main proceedings depends on whether the defendant can be treated as a contracting authority within the meaning of Article 1(b) of Directive 93/36.
25 Second, the national court has furnished the Court with all the material necessary to enable it to give a useful answer to the questions referred.
26 It follows that the reference for a preliminary ruling is admissible. | C-92/00
Hospital | 24-28 | ECT-234 | 24 As a preliminary, it must be examined whether the Vergabekontrollsenat constitutes a court or tribunal within the meaning of Article 234 EC, and thus whether its questions are admissible.
25 It is settled case-law that, in order to determine whether a body making a reference for a preliminary ruling is a court or tribunal within the meaning of Article 234 EC, which is a question governed by Community law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (see, in particular, Case C-54/96 Dorsch Consult v Bundesbaugesellschaft Berlin [1997] ECR I-4961, paragraph 23, and Case C-103/97 Köllensperger and Atzwanger v Gemeindeverband Bezirkskrankenhaus Schwaz [1999] ECR I-551, paragraph 17).
26 In this case, Paragraph 94 of the WLVergG clearly shows that the Vergabekontrollsenat complies with the criteria of being established by law, having compulsory jurisdiction and an inter partes procedure, and applying rules of law.
27 In addition, Paragraph 95 of the WLVergG, which governs the composition and functioning of this body, guarantees its permanence and, in conjunction with Paragraph 94(3), its independence.
28 It follows that the Vergabekontrollsenat des Landes Wien must be regarded as a court or tribunal within the meaning of Article 234 EC and that its questions are admissible. | C-513/99
Concordia | 53-64 | S2-36.1
ECT-234-implicit | 65 With respect to the main proceedings, it must be stated, first, that criteria relating to the level of nitrogen oxide emissions and the noise level of the buses, such as those at issue in those proceedings, must be regarded as linked to the subject-matter of a contract for the provision of urban bus transport services.
66 Next, criteria whereby additional points are awarded to tenders which meet certain specific and objectively quantifiable environmental requirements are not such as to confer an unrestricted freedom of choice on the contracting authority.
67 In addition, as stated in paragraphs 21 to 24 above, the criteria at issue in the main proceedings were expressly mentioned in the tender notice published by the purchasing office of the city of Helsinki. | C-470/99
Universale-Bau | 41-44 | ECT-234 | 41 On a preliminary point, it is appropriate to point out that, as is apparent from the order for reference, the Vergabekontrollsenat seeks clarification as to whether an entity such as EBS is a `contracting authority' within the meaning of Article 1(b) of Directive 93/37, in order to determine whether it has jurisdiction in connection with the applications for review of a decision by that company made by the applicants in the main proceedings.
42 In that regard, it must be recalled that, according to settled case-law, it is 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. However, it is the Member States' responsibility to ensure that those rights are effectively protected in each case. Subject to that reservation, it is not for the Court to involve itself in the resolution of questions of jurisdiction to which the classification of certain legal situations based on Community law may give rise in the national judicial system (see, in particular, Case C-446/93 SEIM [1996] ECR I-73, paragraph 32, and Case C-54/96 Dorsch Consult [1997] ECR I-4691, paragraph 40).
43 However, the Court has power to explain to the national court points of Community law which may help to solve the problem of jurisdiction with which that court is faced (see, in particular, SEIM, cited above, paragraph 33, and Joined Cases C-10/97 to C-22/97 IN.CO.GE.'90 and Others [1998] ECR I-6307, paragraph 15).
44 Furthermore, the character of EBS as a contracting authority affects the replies to the third and fourth questions referred, whose admissibility is not disputed. | C-285/99 & C-286/99
Impresa Lombardini | 27-28 | ECT-234 | 27 It must be borne in mind at the outset that, although the Court may not, under Article 234 EC, rule upon the compatibility of a provision of domestic law with Community law or interpret domestic legislation or regulations, it may nevertheless provide the national court with an interpretation of Community law on all such points as may enable that court to determine the issue of compatibility for the purposes of the case before it (see, for example, Case C-292/92 Hünermund and Others [1993] ECR I-6787, paragraph 8; Case C-28/99 Verdonck and Others [2001] ECR I-3399, paragraph 28; Case C-399/98 Ordine degli Architetti and Others [2001] ECR I-5409, paragraph 48).
28 In those circumstances, the questions referred, which it will be convenient to examine together, should be understood as asking essentially whether Article 30(4) of the Directive is to be interpreted as precluding legislation and administrative practice of a Member State which:
- first, allow the contracting authority to reject as abnormally low tenders offering a discount exceeding the anomaly threshold - calculated in accordance with a mathematical formula by reference to the whole of the tenders received for the procedure in question, so that tenderers are not in a position to know that threshold at the time they lodge their file -, where that authority makes its decision taking account only of explanations of the proposed prices, relating to at least 75% of the basic contract value referred to in the contract notice, which the tenderers were required, under threat of being excluded from participation, to attach to their tender, without giving them the opportunity to express their point of view, after the opening of the envelopes, concerning the elements of the prices proposed which gave rise to suspicions, and
- second, require the contracting authority to take into consideration, for the purposes of checking abnormally low tenders, only explanations based on the economy of the construction method, technical solutions chosen, or exceptionally favourable conditions available to the tenderer, but not explanations relating to all those elements for which minimum values are laid down by law, regulation or administrative provision or can be ascertained from official data. | C-223/99 & C-260/99
Agora | 17-21 | ECT-234 | 17 Ente Fiera argues, first of all, that the question referred to the Court in Case C-223/99 is inadmissible because the main proceedings concern the applicability of the Italian legislation on transparency and not the public procurement rules. Thus, whether Ente Fiera is classed as a body governed by public law is irrelevant to the main proceedings which relate to the right of access to administrative documents.
18 In that connection, it is settled case-law that, in the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling (see, inter alia, Case C-415/93 Bosman [1995] ECR I-4921, paragraph 59).
19 In this case, the national court clearly indicated that an interpretation of Article 1(b) of the Directive is necessary in order to enable it to decide whether Ente Fiera is bound to comply with the national rules on transparency to which the main proceedings relate.
20 The Court may not decline to give a ruling on a question referred to it by a national court unless it is quite obvious that the interpretation of Community law sought by that court bears no relation to the actual facts of the main action or its purpose or where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Bosman, cited above, paragraph 61).
21 It follows that the reference for a preliminary ruling in Case C-223/99 is admissible. | C-399/98
Ordine degli Architetti | 38-45 | W2-1.a.p1
ECT-234 [ex 177] | 38 The City of Milan and the FTS contend that the first question is unrelated to the subject-matter of the main proceedings.
39 They argue that, since the applicants in the main proceedings are either architects or professional bodies representing architects, the national court has confined admissibility of the main proceedings to issues arising from the award of contracts for the design of the Teatro alla Bicocca, to the exclusion of those for building works. Design work constitutes the provision of services. However, the first question concerns the interpretation of Directive 93/37 which covers public works contracts, not public service contracts, which are governed 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). 40 Moreover, the design work in question was, quite simply, provided free of charge to the City of Milan, which means that the cost of that work cannot be included in the cost of constructing the Teatro alla Bicocca, direct execution of which, by way of set-off against the infrastructure contribution, would damage the interests of architects.
41 It is settled law that in the context of the cooperation between the Court of Justice and the national courts provided for by Article 177 of the Treaty, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, for example, Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 38). The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law sought bears no relation to the actual facts of the main proceedings or to their purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted (see, in particular, PreussenElektra, cited above, paragraph 39).
42 In the present case, it is clear from the order for reference that the applicants in the main proceedings seek annulment of the contested resolutions because they permitted a public work - the Teatro alla Bicocca - to be executed directly, without recourse to a Community tendering procedure, thus damaging the applicants' interests. It is also clear from the order for reference that those actions have been declared admissible.
43 There is no doubt that, if a Community tendering procedure had to be organised for the construction of the Teatro alla Bicocca, it could also cover the related design work. The fact that such work is covered by the Directive is confirmed by the wording of Article 1(a), which defines public works contracts, for the purposes of the Directive, as contracts which have as their object either the execution, or both the execution and design, of works.
44 Consequently, the Court must reject the argument that the first question, in so far as it concerns the interpretation of the Directive, bears no relation to the subject-matter of the dispute in the main proceedings.
45 Accordingly, the fact that the design work on the Teatro alla Bicocca was provided free of charge does not cast any doubt on the relevance of the first question. | C-399/98
Ordine degli Architetti | 47-49 | ECT-234 [ex 177] | 47 The first question concerns the compatibility with the Directive of the national and regional legislation at issue in the main proceedings, under which infrastructure works may be executed directly in return for exemption, wholly or in part, from the contribution due.
48 It should be noted at the outset that, in the context of proceedings brought under Article 177 of the Treaty, the Court does not have jurisdiction to give a ruling on the compatibility of a national measure with Community law. However, it does have jurisdiction to supply the national court with a ruling on the interpretation of Community law so as to enable that court to determine whether such compatibility exists in order to decide the case before it (see, inter alia, Joined Cases C-37/96 and C-38/96 Sodiprem and Others [1998] ECR I-2039, paragraph 22).
49 The first question should therefore be understood as seeking to ascertain whether the Directive precludes national urban development legislation under which the holder of a building permit or of an approved development plan may execute infrastructure works directly, by way of total or partial set-off against the contribution payable in respect of the grant of such permission in cases where the value of that work is the same as or exceeds the ceiling fixed by the Directive. | C-399/98
Ordine degli Architetti | 104-107 | ECT-234 [ex 177] | 104 The CNA maintains that this question is irrelevant. Since none of the conditions provided for by Article 11 of Law No 241/90 is satisfied in the case before the national court and having regard to the fact that the agreements concluded for the award of public contracts outside the procedures laid down by the relevant directives undoubtedly impair the rights of contractors or of members of a profession seeking to have the contract awarded to them, Article 11 of Law No 241/90 does not apply in circumstances such as those at issue.
105 Without there being any need to evaluate the CNA's arguments, it must be observed that the national court has not identified the provisions of Community law of which it seeks an interpretation; nor does it specify precisely which aspects of the relevant Italian legislation raise difficulties in terms of Community law when applied in the case before it.
106 In the absence of such information, it is not possible to identify the specific problem arising in the main proceedings concerning the interpretation of Community law.
107 It must therefore be concluded that the second question is inadmissible. | C-275/98
Unitron | 15 | ECT-234 [ex 177] | 15 As a preliminary point, it must be observed that, as the Advocate General has rightly found in paragraphs 17 and 18 of his Opinion, the Procurement Review Board is a court or tribunal within the meaning of Article 177 of the Treaty. | C-275/98
Unitron | 16-20 | ECT-234 [ex 177] | 16 In the Ministry's submission, the Court should refuse to reply to the questions, since, whatever interpretation is given to the provision at issue, the legal position of the applicants will not thereby be altered.
17 If, on the one hand, Article 2(2) of Directive 93/36 had to be interpreted as merely requiring the Ministry to insist that DS comply with the principle of non-discrimination, that interpretation would change nothing as regards Unitron and 3-S, which are both established in Denmark. If, on the other hand, it had to be interpreted as imposing a tendering obligation in accordance with that directive, the Ministry submits that that interpretation could not benefit the applicants either, since a fresh tendering procedure in accordance with Directive 93/36 took place after the tendering procedure which formed the subject-matter of the main proceedings, causing any infringement which there might have been to disappear.
18 It is sufficient to observe, on this point, that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, inter alia, Case C-415/93 Union Royale Belge des Sociétés de Football Association and Others v Bosman and Others [1995] ECR I-4921, paragraph 59). A request from a national court may be refused by the Court of Justice only where it is obvious that the interpretation of a Community rule or assessment of its validity which is sought bears no relation to the facts or purpose of the main action, or if the Court of Justice does not have before it the factual or legal material necessary to give a useful answer to the questions (see, in particular, Bosman, paragraph 61; Case C-60/98 Butterfly Music v CEMED [1999] ECR I-0000, paragraph 13).
19 That is not the case here. It is not impossible that the answers to the questions referred might cause the Procurement Review Board to annul the tendering procedure at issue in the main proceedings or to hold that it was irregular. It is not for the Court of Justice to assess the possible consequences in national law of the fact that a new tendering procedure in accordance with Directive 93/36 took place after the main proceedings were brought.
20 The questions referred to the Court are therefore admissible. | C-275/98
Unitron | 16-20 | ECT-234 [implicit] | 59 However, the fact that such a contract does not fall within the scope of Directive 93/38 does not preclude the Court from helping the national court which has sent it a series of questions for a preliminary ruling. To that end, the Court may take into consideration other factors in making an interpretation which may assist the determination of the main proceedings. | C-192/98
ANAS | 1-3 | ECT-234 [ex 177] | The question whether a body may refer a question to the Court falls to be determined on the basis of criteria relating both to the constitution of that body and to its function. Thus, a national body may be classified as `a court or tribunal' within the meaning of Article 177 of the Treaty when it is performing judicial functions, but when exercising other functions - of an administrative nature, for example - it cannot be recognised as such.
It follows that in order to establish whether a national body, entrusted by law with different categories of function, is to be regarded as a court or tribunal within the meaning of Article 177 of the Treaty, it is necessary to determine in what specific capacity it is acting within the particular legal context in which it seeks a ruling from the Court. For the purposes of that analysis, no relevance is to be attributed to the fact that, when otherwise configured, the body concerned falls to be classified as a court or tribunal for the purposes of Article 177 of the Treaty (even the same entity whose status is in issue, when it is exercising powers other than those in the context of which the reference was made).
The Corte dei Conti (Court of Auditors) is not performing a judicial function - and cannot therefore make a reference to the Court of Justice - when, in the context in which reference is made, it is exercising its powers of ex post facto review which is an administrative role consisting in the evaluation and verification of the results of administrative action. | C108/98
RISAN | 12-17 | S2-1.2.a
S2-na [C3-1.4]
S2-na [C3-17]
ECT-234 [ex 177] | 12 The Municipality of Ischia, Italia Lavoro, Ischia Ambiente, the Italian Government and the Commission have submitted observations on the question whether the procedure for choosing the entity entrusted with running the waste collection service may be covered by the provisions of Directive 92/50.
13 That directive applies to the award of public service contracts which are defined, in Article 1(a), as contracts for pecuniary interest concluded in writing between a service provider and a contracting authority.
14 The national court has, however, expressly excluded the relevance of Directive 92/50, on the ground that only a public service concession was involved, and not a public service contract.
15 The definition of public service concession within the meaning of the Community rules on public contracts and the question whether such a concession is excluded from the scope of Directive 92/50 are matters governed by Community law. Such questions may therefore be the subject of a reference for a preliminary ruling, under Article 177 of the Treaty, if a national court considers that a decision on one of those questions is necessary in order to give judgment.
16 However, even supposing, contrary to the position taken here by the referring court, that Directive 92/50 is relevant in determining the case before it, it must be observed that the reference and the questions raised relate only to the provisions of the Treaty and that the referring court has not provided the factual information which would be necessary for the Court to rule on the interpretation of that directive.
17 In those circumstances, the Court must confine its answer to the provisions of the Treaty expressly mentioned in the questions referred for a preliminary ruling. | C-107/98
Teckal | 29-32 | ECT-234 [ex 177] | 29 As regards, first of all, the question whether the value of the contract in question exceeds the threshold laid down in Directives 92/50 and 93/36, it should be borne in mind that Article 177 of the Treaty is based on a clear separation of functions between the national courts and the Court of Justice, which means that, when ruling on the interpretation or validity of Community provisions, the Court of Justice is empowered to do so only on the basis of the facts which the national court puts before it (see, in particular, Case C-30/93 AC-ATEL Electronics Vertriebs v Hauptzollamt München-Mitte [1994] ECR I-2305, paragraph 16).
30 In that context, it is not for the Court of Justice but for the national court to ascertain the facts which have given rise to the dispute and to establish the consequences which they have for the judgment which it is required to deliver (AC-ATEL Electronics Vertriebs, cited above, paragraph 17).
31 While it is true, therefore, that the method for calculating the amount of the contract is defined in the Community provisions, that is to say, Article 7 of Directive 92/50 and Article 5 of Directive 93/36, on the interpretation of which the national court may, if necessary, submit questions for a preliminary ruling, it is, none the less, by virtue of the division of functions provided for by Article 177 of the Treaty, for the national court to apply the rules of Community law to a specific case. No such application is possible without a comprehensive appraisal of the facts of the case (see Case C-320/88 Staatssecretaris van Financien v Shipping and Forwarding Enterprise Safe [1990] ECR I-285, paragraph 11).
32 It follows that the Court cannot substitute its own appraisal in regard to the calculation of the value of the contract for that of the national court and conclude, on the basis of its appraisal, that the reference for a preliminary ruling is inadmissible. | C-107/98
Teckal | 33-36 | ECT-234 [ex 177] | 33 Next, it must be pointed out that in the context of Article 177 of the Treaty the Court has no jurisdiction to rule either on the interpretation of provisions of national laws or regulations or on their conformity with Community law. It may, however, supply the national court with an interpretation of Community law that will enable that court to resolve the legal problem before it (Case C-17/92 Federacion de Distribuidores Cinematograficos v Spanish State [1993] ECR I-2239, paragraph 8).
34 Finally, according to settled case-law, it is for the Court alone, where questions are formulated imprecisely, to extract from all the information provided by the national court and from the documents in the main proceedings the points of Community law which require interpretation, having regard to the subject-matter of those proceedings (Case 251/83 Haug-Adrion v Frankfurter Versicherungs-AG [1984] ECR 4277, paragraph 9, and Case C-168/95 Arcaro [1996] ECR I-4705, paragraph 21).
35 In the light of the information contained in the order for reference, the national court must be understood to be asking, essentially, whether the provisions of Community law governing the award of public contracts are applicable in a case where a local authority entrusts the supply of products and the provision of services to a consortium of which it is a member, in circumstances such as those in point in the main proceedings.
36 The reference for a preliminary ruling must therefore be declared admissible. | C-107/98
Teckal | 39 | ECT-234 [ex 177] | 39 In order to provide a satisfactory answer to the national court which has referred a question to it, the Court of Justice may deem it necessary to consider provisions of Community law to which the national court has not referred in its question (Case 35/85 Procureur de la République v Tissier [1986] ECR 1207, paragraph 9, and Case C-315/88 Bagli Pennacchiotti [1990] ECR I-1323, paragraph 10). | C-107/98
Teckal | 46-47 | G2-1.a.s1.p1
ECT-234 | 46 In its capacity as a local authority, the Municipality of Viano is a contracting authority within the meaning of Article 1(b) of Directive 93/36. It is therefore a matter for the national court to ascertain whether the relationship between the Municipality of Viano and AGAC also meets the other conditions which Directive 93/36 lays down for a public supply contract.
47 That will, in accordance with Article 1(a) of Directive 93/36, be the case if the contract in question is a contract for pecuniary interest, concluded in writing, involving, inter alia, the purchase of products. | C-81/98
Alcatel Austria | 33-36 | ECT.234 [ex 177] | 33 Next, it must be pointed out that in the context of Article 177 of the Treaty the Court has no jurisdiction to rule either on the interpretation of provisions of national laws or regulations or on their conformity with Community law. It may, however, supply the national court with an interpretation of Community law that will enable that court to resolve the legal problem before it (Case C-17/92 Federacion de Distribuidores Cinematograficos v Spanish State [1993] ECR I-2239, paragraph 8).
34 Finally, according to settled case-law, it is for the Court alone, where questions are formulated imprecisely, to extract from all the information provided by the national court and from the documents in the main proceedings the points of Community law which require interpretation, having regard to the subject-matter of those proceedings (Case 251/83 Haug-Adrion v Frankfurter Versicherungs-AG [1984] ECR 4277, paragraph 9, and Case C-168/95 Arcaro [1996] ECR I-4705, paragraph 21).
35 In the light of the information contained in the order for reference, the national court must be understood to be asking, essentially, whether the provisions of Community law governing the award of public contracts are applicable in a case where a local authority entrusts the supply of products and the provision of services to a consortium of which it is a member, in circumstances such as those in point in the main proceedings.
36 The reference for a preliminary ruling must therefore be declared admissible. | C-81/98
Alcatel Austria | 39 | ECT.234 [ex 177] | 39 In order to provide a satisfactory answer to the national court which has referred a question to it, the Court of Justice may deem it necessary to consider provisions of Community law to which the national court has not referred in its question (Case 35/85 Procureur de la République v Tissier [1986] ECR 1207, paragraph 9, and Case C-315/88 Bagli Pennacchiotti [1990] ECR I-1323, paragraph 10). | C-103/97
Köllensperger | 16-25 | ECT-234 [ex 177] | 16 It must first be considered whether the Tiroler Landesvergabeamt is a court or tribunal within the meaning of Article 177 of the Treaty, and consequently whether the questions are admissible.
17 It is settled case-law that, in order to determine whether a body making a reference for a preliminary ruling is a court or tribunal within the meaning of Article 177 of the Treaty, which is a question governed by Community law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (see, as the most recent authority, Case C-54/96 Dorsch Consult v Bundesbaugesellschaft Berlin [1997] ECR I-4961, paragraph 23, and Case 61/65 Vaassen (neé Göbbels) [1966] ECR 261; Case 14/86 Pretore di Salo v Persons unknown [1987] ECR 2545, paragraph 7; Case 109/88 Danfoss [1989] ECR 3199, paragraphs 7 and 8; Case C-393/92 Almelo and Others [1994] ECR I-1477; and Case C-111/94 Job Centre [1995] ECR I-3361, paragraph 9).
18 The first five criteria are not in doubt. It is apparent from the provisions of Paragraph 6 of the TVergG on its composition and functioning that the Tiroler Landesvergabeamt complies with them.
19 It is not clear, on the other hand, that the condition of independence is satisfied.
20 As the Advocate General observes in point 25 of his Opinion, the TVergG does not contain any specific provisions on challenges to, or withdrawals by, members of the Landesvergabeamt.
21 Moreover, the passage in Paragraph 6(4) of the TVergG concerning removal of members `if the conditions for appointment are no longer met or if circumstances occur which prevent proper exercise of the office and are likely to do so for a long time' appears prima facie too vague to guarantee against undue intervention or pressure on the part of the executive.
22 On this point, it must be observed, first, that Paragraph 5(2) of the TVergG expressly states that, unless otherwise provided, the Allgemeines Verwaltungsverfahrensgesetz (General Law on Administrative Procedure) 1991 is to apply to review procedures concerning awards of contracts. That Law contains very specific provisions on the circumstances in which members of the body in question must withdraw. Moreover, according to the case-law of the Verfassungsgerichtshof, failure to comply with that obligation constitutes a procedural defect which may be challenged by the parties concerned.
23 Second, Paragraph 6(7) of the TVergG must be considered. By expressly prohibiting the giving of instructions to members of the Tiroler Landesvergabeamt in the performance of their duties, that provision repeats the terms of Article 20 of the Austrian Federal Constitutional Law on the independence of members of collegiate bodies with a judicial element, which include the Landesvergabeamt.
24 Those provisions, taken together, cannot therefore support any conclusion that Paragraph 6(4) of the TVergG does not guarantee the independence of the members of the Landesvergabeamt. It is not for the Court to infer that such a provision is applied in a manner contrary to the Austrian constitution and the principles of a State governed by the rule of law.
25 It follows that the Tiroler Landesvergabeamt must be regarded as a court or tribunal within the meaning of Article 177 of the Treaty and that its questions are admissible. | C-304/96
Hera | 10-11 | ECT-234 [ex 177] | 10 The Italian Government maintains that there is no need to reply to the question referred, given that provisions corresponding to those of Article 30(4) of Directive 93/37 already had direct effect, that the Directive does not allow Member States to make any exceptions and that an explanatory circular has been published by the Italian Ministry of Public Works, calling on the authorities concerned to interpret and apply Article 21(1a) of Law No 109 in a manner consistent with Directive 93/37.
11 In that regard the Court has consistently held that it is for the national courts alone, before which the proceedings are pending and which must assume responsibility for the judgment to be given, to determine, having regard to the particular features of each case, both the need for a preliminary ruling to enable them to give judgment and the relevance of the questions which they refer to the Court. A request for a preliminary ruling from a national court may be rejected only if it is quite obvious that the interpretation of Community law sought bears no relation to the facts of the main action or to its purpose (see Case C-143/94 Furlanis v ANAS and Itinera [1995] ECR I-3633, paragraph 12). However, that is not the case here. | C-54/96
Dorsch Consult | 23-38 | ECT-234 [ex 177] | 23 In order to determine whether a body making a reference is a court or tribunal for the purposes of Article 177 of the Treaty, which is a question governed by Community law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (see, in particular, the judgments in Case 61/65 Vaassen (neé Göbbels) [1966] ECR 261; Case 14/86 Pretore di Salo v Persons unkown [1987] ECR 2545, paragraph 7; Case 109/88 Danfoss [1989] ECR 3199, paragraphs 7 and 8; Case C-393/92 Almelo and Others [1994] ECR I-1477; and Case C-111/94 Job Centre [1995] ECR I-3361, paragraph 9).
24 As regards the question of establishment by law, the Commission states that the HGrG is a framework budgetary law which does not give rise to rights or obligations for citizens as legal persons. It points out that the Federal Supervisory Board's action is confined to reviewing determinations made by review bodies. However, in the field of public service contracts, there is, as yet, no competent review body. The Commission therefore concludes that in such matters the Federal Supervisory Board has no basis in law on which it can act.
25 It is sufficient to note in this regard that the Federal Supervisory Board was established by Paragraph 57c(7) of the HGrG. Its establishment by law cannot therefore be disputed. In determining establishment by law, it is immaterial that domestic legislation has not conferred on the Federal Supervisory Board powers in the specific area of public service contracts.
26 Nor is there any doubt about the permanent existence of the Federal Supervisory Board. 27 The Commission also submits that the Federal Supervisory Board does not have compulsory jurisdiction, a condition which, in its view, may mean two things: either that the parties must be required to apply to the relevant review body for settlement of their dispute or that determinations of that body are to be binding. The Commission, adopting the second interpretation, concludes that German legislation does not provide for the determinations made by the Federal Supervisory Board to be enforceable.
28 It must be stated first of all that Paragraph 57c of the HGrG establishes the supervisory board as the only body for reviewing the legality of determinations made by review bodies. In order to establish a breach of the provisions governing public procurement, application must be made to the supervisory board. 29 Secondly, under Paragraph 57c(5) of the HGrG, when the supervisory board finds that determinations made by a review body are unlawful, it directs that body to make a fresh determination, in conformity with the supervisory board's findings on points of law. It follows that determinations of the supervisory board are binding.
30 The Commission also submits that since, according to the Federal Supervisory Board's own evidence, procedure before that body is not inter partes, it cannot be regarded as a court or tribunal within the meaning of Article 177 of the Treaty.
31 It must be reiterated that the requirement that the procedure before the hearing body concerned must be inter partes is not an absolute criterion. Besides, under Paragraph 3(3) of the Verordnung über das Nachprüfungsverfahren für öffentliche Aufträge, the parties to the procedure before the procurement review body must be heard before any determination is made by the chamber concerned.
32 According to the Commission, the criterion relating to the application of rules of law is not met either, because, under Paragraph 57c of the HGrG and Paragraph 3(1) of the Verordnung über das Nachprüfungsverfahren für öffentliche Aufträge, procedure before the Federal Supervisory Board is governed by rules of procedure which it itself adopts, which do not take effect in relation to third parties and which are not published.
33 It is, however, undisputed that the Federal Supervisory Board is required to apply provisions governing the award of public contracts which are laid down in Community directives and in domestic regulations adopted to transpose them. Furthermore, general procedural requirements, such as the duty to hear the parties, to make determinations by an absolute majority of votes and to give reasons for them are laid down in Paragraph 3 of the Verordnung über das Nachprüfungsverfahren für öffentliche Aufträge, which is published in the Bundesgesetzblatt. Consequently, the Federal Supervisory Board applies rules of law.
34 Finally, both Dorsch Consult and the Commission consider that the Federal Supervisory Board is not independent. They point out that it is linked to the organizational structure of the Bundeskartellamt, which is itself subject to supervision by the Ministry for Economic Affairs, that the term of office of the chairman and the official assessors is not fixed and that the provisions for guaranteeing impartiality apply only to lay members.
35 It must be observed first of all that, according to Paragraph 57c(1) of the HGrG, the supervisory board carries out its task independently and under its own responsibility. According to Paragraph 57c(2) of the HGrG, the members of the chambers are independent and subject only to observance of the law.
36 Under Paragraph 57c(3) of the HGrG, the main provisions of the Richtergesetz concerning annulment or withdrawal of their appointments and concerning their independence and removal from office apply by analogy to official members of the chambers. In general, the provisions of the Richtergesetz concerning annulment and withdrawal of judges' appointments apply also to lay members. Furthermore, the impartiality of lay members is ensured by Paragraph 57c(2) of the HGrG, which provides that they must not hear cases in which they themselves were involved through participation in the decision-making process regarding the award of a contract or in which they are, or were, tenderers or representatives of tenderers.
37 It must also be pointed out that, in this particular instance, the Federal Supervisory Board exercises a judicial function, for it can find that a determination made by a review body is unlawful and it can direct the review body to make a fresh determination.
38 It follows from all the foregoing that the Federal Supervisory Board, in the procedure which led to this reference for a preliminary ruling, is to be regarded as a court or tribunal within the meaning of Article 177 of the Treaty, so that the question it has referred to the Court is admissible. | C143/94
Furlanis | 11-12 | ECT-234 [ex 177] | 11 Itinera questions the relevance and hence the admissibility of the national court' s question on the ground that the content of the Community provision in question could not give rise to any uncertainty as regards its interpretation. In accordance with the general principle that the rules applicable to a procedure, such as that preceding the award of a public contract, are determined by the measure initiating that procedure, the date of 31 December 1992 should be regarded as referring only to the publication of the contract notice.
12 In that regard the Court has consistently held that it is for the national courts alone, before which the proceedings are pending and which must assume responsibility for the judgment to be given, to determine, having regard to the particular features of each case, both the need for a preliminary ruling to enable them to give judgment and the relevance of the questions which they refer to the Court. A request for a preliminary ruling from a national court may be rejected only if it is quite obvious that the interpretation of Community law sought by that court bears no relation to the actual nature of the case or the subject-matter of the main action (see, most recently, the judgment in Case C-62/93 Supergas [1995] ECR I-0000, paragraph 10). But that is not the case here. | C-286/88-A
Falciola | 8-9 | ECT-234-impl [ex 177] | The Court has held (see the judgment of 16 June 1981 in Case 126/80 Salonia v Poidomani and Giglio ((1981)) ECR 1563, paragraph 6) that a request from a national court may be rejected only if it is quite obvious that the interpretation of Community law or the examination of the validity of a rule of Community law sought by that court bears no relation to the actual nature of the case or to the subject-matter of the main action.
That is the situation in the present case, in which the questions raised bear no relation to the subject-matter of the action, since the request from the tribunale amministrativo regionale per la Lombardia does not concern the interpretation of Council Directives 71/304 and 71/305, and the tribunale merely informs the Court that it will have to apply those directives in the dispute which has been brought before it. | 45/87
Ireland | 19-27 | ECT-234 [ex 177] | 28 The second limb of the Commission' s application is concerned with the Irish authorities' attitude to a given undertaking in the course of the procedure for the award of the contract at issue.
29 It became apparent during the hearing that the second limb of the application is in fact intended merely to secure the implementation of the measure which is the subject of the first limb. It must therefore be held that it is not a separate claim and there is no need to rule on it separately. |
| Case | Pte | Ref | Text | N-060427
Unicomputer | P3 | ECT-234 | Forelæggelse for EF-domstolen
P3. Klagenævnet har under behandlingen af denne klagesag overvejet, om der er behov for at forelægge præjudicielle spørgsmål for EF-domstolen. Spørgsmålet blev behandlet på mødet den 13. maj 2004. Klageren gik imod, at der skete forelæggelse for EF-domstolen af præjudicielle spørgsmål, mens der efter indklagedes vurdering er behov for at forelægge præjudicielle spørgsmål for EF-domstolen. Klagenævnet besluttede den 12. januar 2006, at der ikke skal ske forelæggelse af præjudicielle spørgsmål for EFdomstolen. | N-030502
L.R. Service | 1 | ECT-234 | 1. Klagenævnet har ikke fundet grundlag for at forelægge spørgsmålet om fortolkning af Tjenesteydelsesdirektivet for EF-domstolen.
[Sagsfremstillingen: Klageren har anmodet Klagenævnet om at forelægge spørgsmålet om fortolkning af Tjenesteydelsesdirektivet for EF-domstolen til præjudiciel afgørelse efter Traktatens artikel 177 [should be 234].
Indklagede har bestridt nødvendigheden af at forelægges spørgsmålet om fortolkning af Tjenesteydelsesdirektivet for EF-domstolen til præjudiciel afgørelse.] | N-980122
Unitron Scandinavia | 11-12 | G2-2.2
ECT-234 [ex 177] | 11. På baggrund af den beskrevne tvivl om forståelsen af indkøbsdirektivets artikel 2, stk. 2, finder Klagenævnet det rigtigst at forelægge spørgsmålet for EF-domstolen i medfør af EF-traktatens artikel 177.
12. Forelæggelsen for EF-domstolen vil ske ved en særlig forelæggelseskendelse, i hvilken der vil blive givet en sagsfremstilling nogenlunde svarende til sagsfremstillingen i nærværende kendelse, og i hvilken Klagenævnet vil redegøre for baggrunden for, at Klagenævnet anser sig kompetent til at foretage forelæggelser i henhold til EF-traktatens artikel 177. Forelæggelseskendelsen vil i udkast blive forelagt parterne til kommentar, før den afsiges. | N-961011
Madsen & LO | 4 | ECT-234 [ex 177] | 4. Det tilføjes, at Klagenævnet ikke har fundet anledning til at tage stilling til anmodningen om, at Klagenævnet skulle stille præjudicielle spørgsmål til EF-domstolen. | N-961009
ELFO | S1 | ECT-234 [ex 177] | S1. Efter artikel 31, stk. 1, påhviler det en ordregiver, som har besluttet at gennemføre et begrænset udbud efter artikel 1, nr. 7, litra b, blandt de virksomheder, der har anmodet om at deltage i udbudet, at udvælge de virksomheder, der skal opfordres til at afgive tilbud. Denne udvælgelse skal efter bestemmelsen ske på grundlag af de objektive kriterier og regler, som ordregiveren har fastlagt vedrørende udbudet, og som har været offentliggjort i udbudsbekendtgørelsen. Ved denne udvælgelse bliver de virksomheder, som ikke opfylder de fastsatte kriterier og regler, afskåret fra at afgive tilbud. En virksomhed, som på dette grundlag afskæres fra at deltage i et udbud, har krav på efter anmodning at få en begrundelse for ordregiverens afgørelse om, at virksomheden ikke opfylder de fastsatte kriterier og regler. Ved det aktuelle udbud fandt indklagede, at alle de 25 virksomheder, der havde anmodet om deltagelse, opfyldt de fastsatte kriterier og regler. |
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