CASE OF GROSSMANN AIR SERVICE BEDARFSLUFTFAHRTUNTERNEHMEN GMBH & CO KG v. AUSTRIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
4. The applicant company is a limited liability company which is registered in Austria and has its seat in Vienna. 5. In 1998 the Federal Finance Minister made a public call for tenders concerning flight services for delegations of the Federal Government. The applicant company submitted an offer, but simultaneously complained that the public tender was tailored towards one specific tenderer, namely the L. company. It was therefore revoked. 6. On 28 July 1998 an amended public call for tenders was issued. The applicant company did not submit an offer. 7. Upon request, the applicant company was informed that the Federal Government decided on 8 October 1998 to award the contract to the L. company. The respective contract was concluded on 29 October 1998. 8. On 19 October 1998, received by the Federal Procurement Authority (Bundesvergabeamt) on 27 October 1998, the applicant company requested to initiate review proceedings concerning the public call for tenders and to declare the awarding of the contract to the L. company null and void. 9. On 4 January 1999 the Federal Procurement Authority rejected the applicant company’s request, holding that it had failed to show its legal interest in the public tender. 10. On 2 March 1999 the applicant company filed a complaint with the Constitutional Court and asked it to seek a preliminary ruling from the Court of Justice of the European Union (CJEU) on the question of the existence of a legal interest. 11. On 10 December 2001 the Constitutional Court set aside the Federal Procurement Authority’s decision and held that it should have requested a preliminary ruling. 12. On 14 May 2002 the Federal Procurement Authority therefore requested a preliminary ruling from the CJEU. 13. On 12 February 2004 the CJEU issued a preliminary ruling, holding in essence that a person who did not participate in the public tendering proceedings due to an allegedly discriminatory call may still request their review. 14. On 30 November 2004 the Federal Procurement Authority again rejected the applicant company’s request. 15. On 10 January 2005 the applicant company filed a complaint with the Constitutional Court. 16. On 26 September 2005 the Constitutional Court declined to deal with the applicant company’s complaint, holding that it did not raise any questions of constitutional law, and transferred the case to the Administrative Court. 17. On 5 December 2005 the applicant company submitted its amended complaint to the Administrative Court. 18. On 29 October 2008 the Administrative Court set aside the Federal Procurement Authority’s decision, holding that the applicant company had been eligible to file a request for review proceedings. 19. On 2 July 2009 the applicant company filed a letter to the AuditorGeneral’s Department (Finanzprokuratur), asking whether the Republic of Austria would be interested in reaching a settlement in this case, referring to the Federal Procurement Authority’s inactivity after the Administrative Court’s last decision and the fact that the proceedings have already lasted for over ten years. 20. On 13 July 2009 the Auditor-General’s Department replied and requested the applicant company to specify their claims for compensation. It further stated that the applicant company could file an application against the Federal Procurement Authority’s failure to decide. 21. On 22 September 2009 the applicant company filed an application with the Administrative Court against the Federal Procurement Authority’s failure to decide (Säumnisbeschwerde). 22. On 30 September 2009 the Administrative Court requested the Federal Procurement Authority to issue, within three months, either a decision or to explain why it did not violate its duty to decide. 23. On 8 October 2009 a meeting took place between the parties, but no settlement could be reached. 24. On 22 December 2009 the Federal Procurement Authority issued its decision, finding that awarding the contract to the L. company in the public tender proceedings had not been unlawful. 25. On 24 February 2010 the Administrative Court discontinued the proceedings concerning the applicant company’s application filed against the Federal Procurement Authority’s failure to decide as the latter had issued its decision on 22 December 2009, but awarded the applicant company the legal costs. 26. On 1 February 2010 the applicant company filed a complaint with the Administrative Court. 27. On 25 March 2010 the Administrative Court declined to deal with the complaint. It held that the impugned decision had not deviated from the Administrative Court’s case-law and that the complaint did not raise any legal questions of fundamental significance. 28. This decision was served on the applicant company’s counsel on 8 April 2010.