In 1995, the Bundesbaugesellschaft Berlin mbH (hereinafter the contracting authority) issued an invitation to tender for the award of a general planning services contract relating to new government buildings in Berlin.

Published in the Amtsblatt Berlin of 23 June 1995 and in OJ 1995 S 120, p. 166.

The contracting authority examined the 18 tenders received and drew up a short list of seven. It then decided to award the contract to two of the other firms which had submitted a tender, which were required to form a working party to provide the services in question. The contract was signed on 12 January 1996, after the working party had already commenced its work.

By letter of 20 December 1995, the review body declined jurisdiction and dismissed the application without consideration of the merits of the claim. The decision was based on the grounds that the federal regulation provided for under the legislation, by which the Federal Government was to have extended the jurisdiction of the review bodies to include the hearing and determination of disputes concerning service contracts, had still not been enacted.

The Federal Supervisory Board decided to stay the proceedings and to refer to the Court of Justice the question whether Article 41 of the services directive is to be interpreted as meaning that the bodies set up by the Member States for the purposes of the review directive are also competent, from the date by which the services directive ought to have been transposed into national law, to review procedures for the award of public service contracts.

The issue was the subject of lively argument between the parties, both in their written observations and at the hearing. It is noteworthy that the applicant itself, which had expressly requested (albeit as an alternative relief) a reference to be made to the Court of Justice for a preliminary ruling on the point in issue, accepted that the Federal Supervisory Board does not constitute a court or tribunal within the meaning of Article 177; it submitted none the less that the Court should in any case answer the question referred to it, but — not without selfcontradiction — on grounds relating to the effective protection of individual rights by the courts.

The Commission considered that the question was so clearly inadmissible that it felt it unnecessary to address its substance. The German Government, for its part, argued that the body in question does constitute a court or tribunal within the meaning of Article 177. But it explicitly conceded in the course of the hearing that it had begun the process of amending the relevant provisions to allow, inter alia, determinations of the supervisory boards to be challenged in the ordinary courts in order to ensure the effective protection by the courts of the rights of the persons concerned.

This point was raised at the hearing by the Commission, which saw it as further proof that the supervisory boards as presently constituted are not courts; this was disputed by the German Government, which at the hearing argued that the amendments in question were aimed solely at making a number of improvements to a system already providing satisfactory legal protection, and it pointed out that this information had been supplied in the course of other, separate proceedings.

This fact, whilst not being conclusive on its own since the concept of court or tribunal within the meaning of Article 177 is a term of Community law

The definition of which, in the obvious interests of the uniform application of Community law, cannot be left to the discretion of the courts of the Member States (see in general Case 49/71 Hagen [1972] ECR 23).

The Court expressly took the following factors into account: the Scheidsgericht was a body duly established under Dutch law; it was permanent; it was charged with the settlement of disputes and had to follow rules of inter partes procedure similar to those applying in the ordinary courts of law; it was required to apply rules of law; furthermore, all those belonging to the relevant industry had to bring any dispute with their insurer before the Scheidsgericht; finally, the members of the body in question were appointed by the Minister responsible, who also designated its chairman and laid down its rules of procedure.

In more recent decisions the Court also confirmed that employment arbitration tribunals which satisfy the aforementioned criteria are courts or tribunals within the meaning of Article 177. See, for example, Case 109/88 Danfoss [1989] ECR 3199, in which the Court found that the body making the reference, a Danish industrial arbitration board, had been established by law (which laid down detailed rules governing its composition, the number of members to be nominated by the parties and the manner of appointment of the umpire), had exclusive and final jurisdiction over the relevant disputes and could hear a case brought by either party irrespective of the objections of the other. Advocate General Lenz also pointed out that the board was also required to apply rules of law, such as the provisions of the relevant collective agreements.

The criterion of independence also appears to have been a key factor, albeit with the opposite result, in Asociación Española de Banca Privada.

Case C-67/91 [1992] ECR I-4785.

These tests concern the manner of establishment of the body, which must have been established by law and not by agreement between the parties; its connection to the exercise of public authority; its permanent nature, in the sense that it must not exercise a judicial function only on an occasional basis; its competence to resolve a dispute by a decision of a judicial nature; the conduct, before it, of a procedure analogous to that which is followed in ordinary courts of law, involving (within the limits discussed above) exchange of argument inter partes; the application by the body in question of rules of law (rather than principles of fairness); compulsory jurisdiction, which means that alternative remedies are not available; and finally independence, in the sense that it acts as a third party in relation to the parties to the dispute and that its members may not be removed from office.

As already mentioned, the Commission takes the view that the Federal Supervisory Board does not satisfy any of the tests laid down by the Court in the cases referred to above. Its main argument is that the Federal Supervisory Board was established by a framework Law (the Second Law amending the HGrG), which does not impose obligations or confer rights on individuals and which must be supplemented by regulations; moreover, the body in question could easily be deprived of its legal basis — and thereby of its capacity to give judgment — in cases such as the present case where there is no competent review body at first instance. The Commission also makes these points: that the referring body does not make its determinations following an inter partes procedure, as is confirmed in the grounds of its first decision;

Decision of 2 August 1994 (published in EU Pubtic Contract Law, No 3/94, p. 47 et seq.), in which the Federal Supervisory Board stated that it did not conduct an inter partes procedure and that the parties' applications were only requests for a particular determination.

To begin with, I do not believe that the rules governing the review procedure before the supervisory boards can be regarded as comparable to the rules governing procedure before ordinary courts of law. On the contrary, the fact that, under the legislation, rules of procedure are to be adopted autonomously by each supervisory board, which may subsequently amend them autonomously, and that in addition there is no requirement that they be published, leads me to conclude that the degree of transparency and legal certainty required in any judicial process is not guaranteed here.

In these circumstances, I do not consider that the review proceedings conducted before the Federal Supervisory Board can be regarded as having the character of judicial proceedings as required by the Court. In this regard, the present case falls clearly outside even the generously broad parameters laid down in Vaassen-Gòbbels.

Of significance in this regard is Paragraph 57c(7) of the HGrG, which I shall recapitulate for the sake of convenience: the Official members of the Federal Supervisory Board are Bundeskartellamt department chairmen and assessors, with the former acting as chairmen of the chambers of the Board. The president of the Bundeskartellamt appoints the lay assessors, decides on the formation and composition of chambers and exercises administrative supervisory control by delegation from the Government.

This control is limited to reproach (Vorhalt) and reprimand (Ermahnung) and consequently, according to legal writers, should in no case concern the content of judicial determinations. The case-law appears to confirm this view, although there are exceptions in cases of purportedly manifest error. See also, in this regard, Paragraph 26(1) and Paragraph 26(2) of the DRiG, which are applicable to the body in issue and which provide that administrative supervisory control over the acuons of members of the judiciary cannot Umit their independence. Paragraph 26(3), which gives judges the right to challenge administrative supervisory measures addressed to them, does not, however, apply to official board members (Paragraph 57c(3)).

What all this amounts to, in effect, is that not only do the members of the Federal Supervisory Board enjoy no guarantee against dismissal, but neither do they have the assurance of a fixed term of office, which is an essential prerequisite of independence. On the contrary, they can be relieved of their additional duties and reassigned to their Ordinary duties at any moment and by means of purely internal organizational measures. While it is true, as we have seen, that some of the provisions of the DRiG regarding the permanence and independence of members of the judiciary apply by analogy to the members of the Board when acting in that capacity,

Sec supra note 7.

This is a factor which produces, further doubts as to the judicial nature of the decisions which the Board is called upon to take and thus as to whether it can be regarded as having the attributes of a court or tribunal within the meaning of Article 177.

This is, in substance, the argument put forward by the applicant. As mentioned above, even though the applicant submits that the Federal Supervisory Board is not a court or tribunal within the meaning of Article 1 77, it suggests that the Court should turn a blind eye to this and nevertheless answer the question submitted by the Board on the ground that not to do so would be detrimental to the applicant. This proposal might be supported, it claims, by the judgment in Broekmeulen in which, as explained above, the Court accepted a reference from a professional body having the power to hear appeals concerning the registration of members of the profession and held, inter alia: in the absence, in practice, of any right of appeal to the ordinary courts, the appeals committee, which operates with the consent of the public authorities and with their cooperation, and which, after an adversarial procedure, delivers decisions which are in fact recognized as final, must, in a matter involving the application of Community law, be considered as a court or tribunal of a Member State within the meaning of Article 177 of the Treaty.

Broekmeulen (loc. cit. footnote 24), paragraph 17.

In the present case, however, a person who considers himself to have been unlawfully excluded from a contract-award procedure is expressly given the possibility of bringing an action in damages for any loss suffered, which in itself could well provide, at least in principle, a satisfactory remedy.

Furthermore, as I have already mentioned, the German Government has notified the Commission that it has commenced the process of amending its legislation to bring it into conformity with the review directive; the new rules will make express provision for, inter alia, review by the ordinary courts of the determinations of the supervisory boards.

I would point out tkat the legislative changes which are being enacted could mean that the ruling which the Court is now called upon to give will have only historical significance, in relation, that is, to the issue of admissibility, concerning the question whether or not the existing supervisory boards are entitled to make a reference for a preliminary ruling.

On the contrary, I hold the view that the solution which I have advocated, that is to say that the Court should declare that it has no jurisdiction to rule on this reference, offers a wider perspective going beyond the present case and affords a greater safeguard of individual rights, for which only a court of law can provide effective protection. Underlying this conclusion is, quite clearly, the conviction that only those bodies which are able to provide all the safeguards of individual rights developed by the Court can be treated as courts or tribunals for the purposes of Article 177, and no others.

This is a significant factor which, in my view, should be given due weight, whilst observing the distinction between this case and the enforcement action brought by the Commission under Article 169 of the Treaty.

The question is, as I have stated, whether, after expiry of the period for transposition of the services directive, the review bodies are also competent to review procedures for the award of public service contracts in the absence of any express measure conferring such jurisdiction upon them (in this case, a Federal regulation, although this is provided for by statute).

Clearly, however, this is an issue which cannot be determined by the Court in these proceedings. For the Court may not take the place of the national legislature, to which the relevant power has been expressly reserved by law, and decide whether the review bodies should also review procedures for the award of public service contracts.

If an individual had no actual possibility of relying on a directly effective provision of Community law for want of a court competent to hear his case, this would, of course, indicate the existence of a clear violation of Community law.

And, in all likelihood, a breach of Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms, which enshrines the right of access to a court of law.