| | 31992L0050: s2-41Amends    
| 31992L0050 - Services (2nd generation) | Article 41 | Article 41
Article 1 (1) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts(12) shall be replaced by the following: "1. The Member States shall take the measures necessary to ensure that, as regards contract award procedures falling within the scope of Directives 71/305/EEC, 77/62/EE, and 92/50/EEC (*), decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in the following Articles and, in particular, Article 2 (7) on the grounds that such decisions have infringed Community law in the field of public procurement or nation rules implementing that law.
(*) OJ No L 209, 24. 7. 1992, p. 1."
(12) OJ No L 395, 30. 12. 1989, p. 33. | | 11979Hnn - First joint amendment of Classical (1st generation) | Article 145 & XII.iv | Article 145
The Hellenic republic shall put into effect the measures necessary for it to comply from the date of accession with the provisions of directives and decisions within the meaning of article 189 of the EEC treaty and of article 161 of the Euratom treaty , and with recommendations and decisions within the meaning of article 14 of the ECSC treaty , unless a time limit is provided for in the list in annex XII or in any other provisions of this act.
Annex XII list referred to in Article 145 of the Act of Accession, IV. Approximation of legislation
Council Directive 77/62/EEC of 21 December 1976 (OJ no. l 13, 15.1.1977, p. 1), 1 January 1983. |
| Case | Pte | Ref | Text | C-258/97
Hospital Ingenieure Hospital Ingenieure | 26 | S2-41
ECT-249 [ex 189] | 26 In paragraphs 44 and 26 respectively of its judgments in Dorsch Consult and Tögel, cited above, the Court also pointed out that the question of the designation of a body competent to hear appeals in relation to public service contracts is relevant even where Directive 92/50 has not been transposed. Where a Member State has failed to take the implementing measures required or has adopted measures which do not conform to a directive, the Court has recognised, subject to certain conditions, the right of individuals to rely in law on a directive as against a defaulting Member State. Although this minimum guarantee cannot justify a Member State in absolving itself from taking in due time implementing measures sufficient to meet the purpose of each directive (see, in particular, the judgment in Case C-253/95 Commission v Germany [1996] ECR I-2423, paragraph 13), it may nevertheless have the effect of enabling individuals to rely, as against a Member State, on the substantive provisions of Directive 92/50. | C-111/97
EvoBus | 14-16 | RU1-1.1 | 26 At paragraph 44, the Court went on to point out that the question of the designation of a body competent to hear appeals in relation to public service contracts is relevant even where Directive 92/50 has not been transposed. Where a Member State has failed to take the implementing measures required or has adopted measures which do not conform to a directive, the Court has recognised, subject to certain conditions, the right of individuals to rely in law on a directive as against a defaulting Member State. Although this minimum guarantee cannot justify a Member State in absolving itself from taking in due time implementing measures sufficient to meet the purpose of each directive (see, in particular, the judgment in Case C-253/95 Commission v Germany [1996] ECR I-2423, paragraph 13), it may nevertheless have the effect of enabling individuals to rely, as against a Member State, on the substantive provisions of Directive 92/50. | C-76/97
Tögel | 21-23 + 28 | S2-41
RC1A1-1.1 | 21 By its first and second questions, which it is appropriate to examine together, the national court is asking essentially whether Article 1(1) and (2), Article 2(1), or any other provisions of Directive 89/665, must be interpreted as meaning that, if Directive 92/50 has not been transposed by the end of the period laid down for that purpose, the review bodies in the Member States with jurisdiction in regard to procedures for the award of public supply and public works contracts established under Article 2(8) of Directive 89/665 also have jurisdiction in regard to appeals in connection with procedures for the award of contracts for services.
22 In that connection, it should be recalled first of all that in paragraph 40 of its judgment in Case C-54/96 Dorsch Consult Ingenieurgesellschaft v Bundesbaugesellschaft Berlin [1997] ECR I-4961 the Court held that it was for the legal system of each Member State to determine which court or tribunal has jurisdiction to hear disputes involving individual rights derived from Community law but that in each case the Member States must ensure that those rights are effectively protected. Subject to that proviso, it is not for the Court to involve itself in the resolution of questions of jurisdiction which may arise within the internal judicial system from the classification of certain legal situations based on Community law.
23 At paragraph 41 of that judgment the Court went on to declare that, although Article 41 of Directive 92/50 requires the Member States to adopt the measures necessary to ensure effective review in the field of public service contracts, it does not indicate which national bodies are to be the competent bodies for this purpose or whether these bodies are to be the same as those which the Member States have designated in the field of public works contracts and public supply contracts.
28 The reply to be given to the first and second questions must therefore be that neither Article 1(1) and (2), Article 2(1) nor any other provision of Directive 89/665 may be interpreted as meaning that, if Directive 92/50 has not been transposed by the end of the period laid down for that purpose, the review bodies in the Member States with jurisdiction to review procedures for the award of public supply contracts and public works contracts, established under Article 2(8) of Directive 89/665, may also hear appeals concerning procedures for the award of public service contracts. However, in order to observe the requirement that domestic law must be interpreted in conformity with Directive 92/50 and the requirement that the rights of individuals must be protected effectively, the national court must determine whether the relevant provisions of its domestic law allow recognition of a right for individuals to bring an appeal in relation to awards of public service contracts. In circumstances such as those arising in the present case, the national court must determine in particular whether such a right of appeal may be exercised before the same bodies as those established to hear appeals concerning the award of public supply contracts and public works contracts. | C-54/96
Dorsch Consult | 44 | S2-41
EFT-249 [ex 189] | 44 Secondly, the question of the designation of a body competent to hear appeals in relation to public service contracts is relevant even where Directive 92/50 has not been transposed. Where a Member State has failed to take the implementing measures required or has adopted measures which do not conform to a directive, the Court has recognized, subject to certain conditions, the right of individuals to rely in law on a directive as against a defaulting Member State. Although this minimum guarantee cannot justify a Member State absolving itself from taking in due time implementing measures sufficient to meet the purpose of each directive (see, in particular, the judgment in Case C-253/98 Commission v Germany [1996] ECR I-2423, paragraph 13), it may nevertheless have the effect of enabling individuals to rely, as against a Member State, on the substantive provisions of Directive 92/50. | C-54/96
Dorsch Consult | 39-41 + 46 | S2-41
RC1A1-1.1 [implicit] | 39 By its question, the Federal Supervisory Board is asking in effect whether it follows from Article 41 of Directive 92/50 that, if that directive has not been transposed by the end of the period laid down for that purpose, the appeal bodies of the Member States having competence in relation to procedures for the award of public works contracts and public supply contracts may also hear appeals relating to procedures for the award of public service contracts.
40 It must be stated first of all that 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 (judgment in Case C-446/93 SEIM [1996] ECR I-73, paragraph 32).
41 Although Article 41 of Directive 92/50 requires the Member States to adopt the measures necessary to ensure effective review in the field of public service contracts, it does not indicate which national bodies are to be the competent bodies for this purpose or whether these bodies are to be the same as those which the Member States have designated in the field of public works contracts and public supply contracts.
46 The answer to be given to the question referred to the Court must accordingly be that it does not follow from Article 41 of Directive 92/50 that, where that directive has not been transposed by the end of the period laid down for that purpose, the appeal bodies of the Member States having competence in relation to procedures for the award of public works contracts and public supply contracts may also hear appeals relating to procedures for the award of public service contracts. However, in order to observe the requirement that domestic law must be interpreted in conformity with Directive 92/50 and the requirement that the rights of individuals must be protected effectively, the national court must determine whether the relevant provisions of its domestic law allow recognition of a right for individuals to bring an appeal in relation to awards of public service contracts. In circumstances such as those arising in the present case, the national court must determine in particular whether such a right of appeal may be exercised before the same bodies as those established to hear appeals concerning the award of public supply contracts and public works contracts. | C-44/96
Mannesmann | 47-49 | W2-1.b.1
S2-41 [implicit]
RC1A1-1.1
R93.2081-7.1 | 47 By its seventh question, the national court is essentially seeking to ascertain whether Article 7(1) of Regulation No 2052/88 as amended by Regulation No 2081/93 is to be interpreted as meaning that Community funding of a works project is conditional upon the recipients complying with the review procedures laid down by Directive 89/665, even if they themselves are not contracting authorities within the meaning of Article 1(b) of Directive 93/37.
48 As the Advocate General noted at point 105 of his Opinion, it is clear from the wording of Article 7(1) of Regulation No 2052/88 that the requirement that the measures referred to must be in conformity with Community law presupposes that those measures fall within the scope of the relevant Community legislation.
49 The answer to the seventh question referred by the national court must therefore be that Article 7(1) of Regulation No 2052/88 as amended by Regulation No 2081/93 is to be interpreted as meaning that Community funding of a works project is not conditional upon the recipients complying with the review procedures within the meaning of Directive 89/665, if they are not themselves contracting authorities within the meaning of Article 1(b) of Directive 93/37. |
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