JUDGMENT OF THE COURT

(Sixth Chamber)

18 March 2004

In Case C-314/01 (Reference for a preliminary ruling from the Bundesvergabeamt): Siemens AG Österreich, ARGE Telekom & Partner v Hauptverband der österreichischen Sozialversicherungsträger (1)

(Public contracts - Directive 89/665/EEC - Review procedures concerning the award of public contracts - Effects of a decision by the body responsible for review procedures annulling the decision by the contracting authority not to revoke the procedure by which a contract was awarded - Restriction on the use of subcontracting)

(2004/C 106/04)

Language of the case: German

In Case C-314/01: References to the Court under Article 234 EC by the Bundesvergabeamt (Austria) for a preliminary ruling in the proceedings pending before that court between Siemens AG Österreich, ARGE Telekom & Partner and Hauptverband der österreichischen Sozialversicherungsträger; Joined party: Bietergemeinschaft EDS/ORGA, on the interpretation of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33), as amended 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), the Court (Sixth Chamber), composed of: V. Skouris, acting for the President of the Sixth Chamber, C. Gulmann, J.-P. Puissochet, R. Schintgen (Rapporteur) and N. Colneric, Judges; L.A. Geelhoed, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, has given a judgment on 18 March 2004, in which it has ruled:

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 Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, and in particular Articles 1(1) and 2(7) thereof, must be construed as meaning that, in the case where a clause in an invitation to tender is incompatible with Community rules on public contracts, the national legal systems of the Member States must provide for the possibility of relying on that incompatibility in the review procedures referred to in Directive 89/665.

(1)  OJ C 317 of 10.11.2001.