Luxembourg, 24/01/2003 (Agence Europe) - In the context of the awarding of public works contracts, a national law may ban changes to the composition of a group of contractors once tenders have been submitted, states the European Court of Justice (Ed.: Sixth Chamber). The 1993 directive on procedures for awarding public works contracts does not contain any specific stipulation regarding the composition of such groups. The regulation concerning the composition of such groups therefore comes under Member State competence and, as a result, the directive does not oppose national regulation banning a change in the composition of a group of contractors after tenders have been made, it states.
Greece had launched a call for tenders - restricted procedure - for the construction of a metro in Thessalonika with a budget of 65 billion drachma. The Makedoiniko Metro group of contractors had been authorised to tender, then it was pushed out to the advantage of a rival because it had changed the composition of its group. Between the tendering and the time when it was to be designated as provisional adjudicator, Makedoniko had added the Westinghouse company to the list of its members.
Makedoniko had addressed the Greek courts to obtain compensation for damages that if felt it had suffered. The administrative court of appeal in Athens had asked the Court whether the 1993 directive might authorise the Greek regulation to evince the group which changed the composition of its members. The Court has now replied in the affirmative.
Secondly, the administrative Court of Athens asked to what extent the refused group could invoke another directive, from 1989, on procedures for appeals regarding public contracts. The directive provides for decisions taken by the adjudicating power to be the subject of effective appeal, as swiftly as possible, and that such appeal should be accessible to any person who was interested in being awarded a public contract and who was likely to be injured. It is therefore up to the Greek Court of Appeal to establish whether Makedoniko Metro can be considered, also in its new composition, as having had an interest in obtaining the contract in question and having been injured by the decision taken by the Greek authorities to reject it, states the Court.