Case C-570/08
Symvoulio Apochetefseon Lefkosias
v
Anatheoritiki Archi Prosforon
(Reference for a preliminary ruling from the
Anotato Dikastirio tis Kipriakis Dimokratias (Cyprus))
(Public contracts – Directive 89/665/EEC – Article 2(8) – Body responsible for review procedures that is not judicial in character – Annulment of the contracting authority’s decision to accept a tender – Possibility for the contracting authority to appeal against that annulment before a judicial body)
Summary of the Judgment
Approximation of laws – Review procedures in respect of the award of public supply and public works contracts – Directive 89/665 – Obligation for Member States to provide a review procedure – Access to review procedures
(Council Directive 89/665, Art. 2, para. 8)
Article 2(8) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 92/50, must be interpreted as not requiring the Member States to provide, for contracting authorities too, a right to seek judicial review of the decisions of non-judicial bodies responsible for review procedures concerning the award of public contracts.
Firstly, in the fourth and seventh recitals in the preamble to that directive, ‘Community undertakings’ are explicitly referred to as parties for the purposes of seeking a review of the procedures for the award of public contracts. Secondly, Article 1(3) of that directive, which states that review procedures are available ‘at least to any person having or having had an interest in obtaining a public contract’, defines the class of persons which must be allowed a right of review on the basis of that directive. Thirdly, as is apparent from the seventh recital in the preamble to that directive, the European Union legislature was aware of the possibility that certain infringements may not be corrected when undertakings do not seek review of unlawful or erroneous decisions, it being understood that such decisions could also be adopted by bodies responsible for review procedures of a non-judicial nature. However, in order to remedy such a situation, Article 3 of the directive provides for the Commission to have a general power to intervene in accordance with the procedure established in that provision.
In the light, moreover, of the procedural independence enjoyed by the Member States, it should be held that the latter are not prevented from including contracting authorities within the class of persons to whom the review procedures within the meaning of the abovementioned provision are available, in cases in which contracting authorities’ decisions are annulled by non-judicial bodies.
(see paras 24-26, 36, 38, operative part)