40As to the persons to whom review procedures are available, it suffices to state that under Article 1(3) of Directive 89/665 the Member States must ensure that review procedures are available at least to any person having or having had an interest in obtaining a public contract who has been or risks being harmed by an alleged infringement (see, to that effect, the judgment of 24 June 2004 in Case C-212/02 Commission v Austria, not published in the ECR, paragraph 24). The formal capacity of tenderer or candidate is not thus required.
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