CROSS Zlin (Procedures for the review of the award of public supply and public works contracts - Judgment) [2024] EUECJ C-303/22 (18 January 2024)

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(Reference for a preliminary ruling – Procedures for the review of the award of public supply and public works contracts – Directive 89/665/EEC – Access to review procedures – Articles 2(3) and 2a(2) – Obligation for Member States to provide for a review procedure with suspensive effect – Review body of first instance – Review relating to a contract award decision – Article 2(9) – Body responsible for review procedures of a non-judicial character – Conclusion of a public contract before lodging of a judicial action against a decision by that body – Article 47 of the Charter of Fundamental Rights of the European Union – Effective judicial protection)

REQUEST for a preliminary ruling under Article 267 TFEU from the Krajský soud v Brně (Regional Court, Brno, Czech Republic), made by decision of 5 May 2022, received at the Court on 9 May 2022, in the proceedings

composed of C. Lycourgos (Rapporteur), President of the Chamber, O. Spineanu‑Matei, J.‑C. Bonichot, S. Rodin and L.S. Rossi, Judges,

having regard to the written procedure and further to the hearing on 25 May 2023,

– the Úřad pro ochranu hospodářské soutěže, by P. Mlsna and I. Pospíšilíková, acting as Agents,

– the Czech Government, by L. Halajová, M. Smolek and J. Vláčil, acting as Agents,

– the Cypriot Government, by N. Ioannou, D. Kalli and E. Zachariadou, acting as Agents,

– the European Commission, by G. Gattinara, P. Ondrůšek and G. Wils, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 7 September 2023,

1 This request for a preliminary ruling concerns the interpretation of Article 2(3) and Article 2a(2) 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 Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 (OJ 2014 L 94, p. 1) (‘Directive 89/665’), and of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2 The request has been made in proceedings between CROSS Zlín a.s. and the Úřad pro ochranu hospodářské soutěže (Office for the Protection of Competition, Czech Republic) (‘the Office’) concerning the confirmation, by the President of the Office, of the rejection of CROSS Zlín’s action against the decision of the Statutární město Brno (City of Brno, Czech Republic) to exclude that company from a tender procedure for the award of a public contract relating to the expansion of the functions of the traffic control centre (concerning the traffic light system) of that city.

‘… since procedures for the award of public contracts are of such short duration, competent review bodies must, among other things, be authorised to take interim measures aimed at suspending such a procedure or the implementation of any decisions which may be taken by the contracting authority; whereas the short duration of the procedures means that the aforementioned infringements need to be dealt with urgently’.

4 Recitals 3, 4 and 36 of Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (OJ 2007 L 335, p. 31) state:

‘(3) Consultations of the interested parties and the case-law of the Court of Justice have revealed a certain number of weaknesses in the review mechanisms in the Member States. As a result of these weaknesses, the mechanisms established by [Directive] 89/665/EEC and [Council Directive] 92/13/EEC [of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1992 L 76, p. 14)] do not always make it possible to ensure compliance with Community law, especially at a time when infringements can still be corrected. Consequently, the guarantees of transparency and non-discrimination sought by those Directives should be strengthened to ensure that the Community as a whole fully benefit from the positive effects of the modernisation and simplification of the rules on public procurement achieved by Directives 2004/18/EC [of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114)] and 2004/17/EC [of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1)]. …

(4) The weaknesses which were noted include in particular the absence of a period allowing an effective review between the decision to award a contract and the conclusion of the contract in question. This sometimes results in contracting authorities and contracting entities who wish to make irreversible the consequences of the disputed award decision proceeding very quickly to the signature of the contract. In order to remedy this weakness, which is a serious obstacle to effective judicial protection for the tenderers concerned, namely those tenderers who have not yet been definitively excluded, it is necessary to provide for a minimum standstill period during which the conclusion of the contract in question is suspended, irrespective of whether conclusion occurs at the time of signature of the contract or not.

(36) This Directive respects fundamental rights and observes the principles recognised in particular by [the Charter]. In particular, this Directive seeks to ensure full respect for the right to an effective remedy and to a fair hearing, in accordance with the first and second subparagraphs of Article 47 of the Charter.’

5 Article 1 of Directive 89/665, entitled ‘Scope and availability of review procedures’, provides:

Member States shall take the measures necessary to ensure that, as regards contracts falling within the scope of Directive 2014/24/EU [of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65)] or Directive 2014/23/EU [of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p. 1)], decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in Articles 2 to 2f of this Directive, on the grounds that such decisions have infringed Union law in the field of public procurement or national rules transposing that law.

3. Member States shall ensure that the review procedures are available, under detailed rules which the Member States may establish, at least to any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement.

5. Member States may require that the person concerned first seek review with the contracting authority. In that case, Member States shall ensure that the submission of such an application for review results in immediate suspension of the possibility to conclude the contract.

The suspension referred to in the first subparagraph shall not end before the expiry of a period of at least 10 calendar days with effect from the day following the date on which the contracting authority has sent a reply if fax or electronic means are used, or, if other means of communication are used, before the expiry of either at least 15 calendar days with effect from the day following the date on which the contracting authority has sent a reply, or at least 10 calendar days with effect from the day following the date of the receipt of a reply.’

6 Article 2 of Directive 89/665, entitled ‘Requirements for review procedures’, states:

‘1. Member States shall ensure that the measures taken concerning the review procedures specified in Article 1 include provision for powers to:

(a) take, at the earliest opportunity and by way of interlocutory procedures, interim measures with the aim of correcting the alleged infringement or preventing further damage to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a public contract or the implementation of any decision taken by the contracting authority;

(b) either set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discriminatory technical, economic or financial specifications in the invitation to tender, the contract documents or in any other document relating to the contract award procedure;

2. The powers specified in paragraph 1 and Articles 2d and 2e may be conferred on separate bodies responsible for different aspects of the review procedure.

3. When a body of first instance, which is independent of the contracting authority, reviews a contract award decision, Member States shall ensure that the contracting authority cannot conclude the contract before the review body has made a decision on the application either for interim measures or for review. The suspension shall end no earlier than the expiry of the standstill period referred to in Article 2a(2) and Article 2d(4) and (5).

4. Except where provided for in paragraph 3 and Article 1(5), review procedures need not necessarily have an automatic suspensive effect on the contract award procedures to which they relate.

5. Member States may provide that the body responsible for review procedures may take into account the probable consequences of interim measures for all interests likely to be harmed, as well as the public interest, and may decide not to grant such measures when their negative consequences could exceed their benefits.

A decision not to grant interim measures shall not prejudice any other claim of the person seeking such measures.

6. Member States may provide that where damages are claimed on the grounds that a decision was taken unlawfully, the contested decision must first be set aside by a body having the necessary powers.

Furthermore, except where a decision must be set aside prior to the award of damages, a Member State may provide that, after the conclusion of a contract in accordance with Article 1(5), paragraph 3 of this Article or Articles 2a to 2f, the powers of the body responsible for review procedures shall be limited to awarding damages to any person harmed by an infringement.

9. Where bodies responsible for review procedures are not judicial in character, written reasons for their decisions shall always be given. Furthermore, in such a case, provision must be made to guarantee procedures whereby any allegedly illegal measure taken by the review body or any alleged defect in the exercise of the powers conferred on it can be the subject of judicial review or review by another body which is a court or tribunal within the meaning of Article [267 TFEU] and independent of both the contracting authority and the review body.

‘1. The Member States shall ensure that the persons referred to in Article 1(3) have sufficient time for effective review of the contract award decisions taken by contracting authorities, by adopting the necessary provisions respecting the minimum conditions set out in paragraph 2 of this Article and in Article 2c.

2. A contract may not be concluded following the decision to award a contract falling within the scope of Directive [2014/24] or Directive [2014/23] before the expiry of a period of at least 10 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned if fax or electronic means are used or, if other means of communication are used, before the expiry of a period of either at least 15 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned or at least 10 calendar days with effect from the day following the date of the receipt of the contract award decision.

Tenderers shall be deemed to be concerned if they have not yet been definitively excluded. An exclusion is definitive if it has been notified to the tenderers concerned and has either been considered lawful by an independent review body or can no longer be subject to a review procedure.

The communication of the award decision to each tenderer and candidate concerned shall be accompanied by the following:

– a precise statement of the exact standstill period applicable pursuant to the provisions of national law transposing this paragraph.’

‘1. Member States shall ensure that a contract is considered ineffective by a review body independent of the contracting authority or that its ineffectiveness is the result of a decision of such a review body in any of the following cases:

(b) in case of an infringement of Article 1(5), Article 2(3) or Article 2a(2) of this Directive, if this infringement has deprived the tenderer applying for review of the possibility to pursue pre-contractual remedies where such an infringement is combined with an infringement of Directive [2014/24] or Directive [2014/23], if that infringement has affected the chances of the tenderer applying for a review to obtain the contract;

2. The consequences of a contract being considered ineffective shall be provided for by national law.

National law may provide for the retroactive cancellation of all contractual obligations or limit the scope of the cancellation to those obligations which still have to be performed. In the latter case, Member States shall provide for the application of other penalties within the meaning of Article 2e(2).’

9 It is apparent from Paragraphs 241 and 242 of Zákon č. 134/2016 Sb., o zadávání veřejných zakázek (Law No 134/2016 on the award of public contracts), in the version applicable to the dispute in the main proceedings (‘Law No 134/2016’), that an objection against the procedure carried out by the contracting authority may be lodged within 15 days of the date on which the complainant learns of a breach of law by the contracting authority.

10 Under Paragraph 245(1) of that law, the contracting authority is to send a decision on the objection to the complainant within 15 days of service of that objection, stating whether it upholds the objection or rejects it. That decision must include reasoning in which the contracting authority makes a detailed and comprehensible statement concerning all the facts set out in the complainant’s objection. If the contracting authority upholds the objection, it is also to state in its decision what remedial measures it will take.

11 According to Paragraph 245(4) of that law, if the contracting authority rejects the objection, it is to inform the complainant, in the decision on the objection, about the possibility of submitting to the Office, within the period laid down in Paragraph 251(2) of that law, an application for the initiation of proceedings to review the actions of the contracting authority and about the obligation to deliver a copy of that application to the contracting authority within the same period.

12 Paragraph 246(1) of Law No 134/2016 provides that the contracting authority may not conclude a contract with a supplier:

‘(a) before the expiry of the time limit for lodging an objection against a decision to exclude a tenderer from a tendering procedure, to select a supplier, or against an act of voluntary notification of an intention to conclude a contract;

(b) until delivery to the complainant of a decision on an objection, if an objection has been lodged;

(c) before the expiry of the time limit for submitting an application for the initiation of proceedings to review the actions of the contracting authority, if the latter has rejected the objection that was lodged;

(d) within 60 days of the initiation of proceedings to review the actions of the contracting authority, if the application for initiation of such proceedings was lodged within the time limit. However, the contracting authority may conclude the contract, even within that period, if the Office has dismissed that application or if the administrative proceedings concerning that application have been closed and that decision of dismissal or to close the proceedings has become final in those administrative proceedings.’

13 Under Article 246(2) of that law, the contracting authority may likewise not conclude a contract with a supplier within 60 days of the date of initiation of the proceedings to review the actions of the contracting authority if the Office initiates those proceedings of its own motion. The contracting authority may, however, conclude a contract, even within that period, if the administrative proceedings have been closed and such a decision has become final in those administrative proceedings.

14 In accordance with Article 254(1) of that law, an application to impose a prohibition on the performance of a public contract may be made by an applicant who claims that the contracting authority has concluded the contract, inter alia, without prior publication, despite a prohibition on its conclusion laid down by that law or by an interim measure, or on the basis of a procedure other than the tendering procedure.

15 Article 257(j) of Law No 134/2016 provides that the Office is to close the proceedings by means of an order where the contracting authority has concluded, during the administrative proceedings, an agreement for the performance of the contract which is the subject matter of the review.

16 Paragraph 264(1) of that law provides that the Office, in proceedings based on an application pursuant to Paragraph 254 of that law, is to impose a prohibition in respect of the performance of a contract on a contracting authority if the public contract or framework agreement was concluded in the manner referred to in Paragraph 254(1). A contract in respect of which the Office has imposed a prohibition on performance, without proceeding pursuant to subparagraph 3, is to be void ab initio. In accordance with Article 264(2), an agreement for the performance of a public contract is to become void for infringement of that law only in cases where the Office imposes a prohibition on performance of that contract pursuant to Article 264(1).

The dispute in the main proceedings and the question referred for a preliminary ruling

17 On 27 September 2019, the City of Brno launched a procedure for the award of a public contract for the expansion of the functions of the traffic control centre (concerning the traffic light system) of that city. The estimated value of that public contract was 13 805 000 Czech koruny (CZK), excluding value added tax (VAT) (approximately EUR 560 000).

18 As contracting authority, the City of Brno received two bids, one from CROSS Zlín, the lowest, and one from Siemens Mobility, s.r.o. By a notice of 6 April 2020, that contracting authority excluded CROSS Zlín due to failure to meet the tender conditions. On 7 April 2020, the contract was awarded to Siemens Mobility.

19 Cross Zlín lodged an objection to the notice of exclusion, which the contracting authority dismissed by decision of 4 May 2020. That company subsequently lodged an application with the Office for review of the contracting authority’s actions, seeking annulment of the notice of exclusion and of the decision to award the contract in question to Siemens Mobility.

20 During the administrative proceedings before it, the Office adopted of its own motion, on 3 July 2020, an interim measure prohibiting the contracting authority from concluding the public contract at issue until those administrative proceedings had been closed with final effect.

21 By a decision of 5 August 2020, the Office dismissed CROSS Zlín’s application. The latter then lodged an administrative appeal against that decision, which the President of the Office, as second-instance administrative body, dismissed by decision of 9 November 2020. On 18 November 2020, the contracting authority concluded the public contract in question with Siemens Mobility.

22 On 13 January 2021, CROSS Zlín brought an action before the Krajský soud v Brně (Regional Court, Brno, Czech Republic), the referring court, against that decision of the President of the Office. In parallel to that action, CROSS Zlín lodged an application for the action to be recognised as having suspensive effect in relation to conclusion of the contract and for the adoption of an interim measure prohibiting the contracting authority from concluding or performing that public contract.

23 On 11 February 2021, that court dismissed the application on the ground, in essence, that where a public contract has already been entered into, it is not appropriate to prohibit the contracting authority concerned from concluding that contract. As Czech law currently stands, even if such a judicial action were upheld and the contested decision annulled, with referral of the case back to the Office, the latter would close the proceedings on the basis of Article 257(j) of Law No 134/2016, without assessing the case on the merits.

24 That court also declined to prohibit the contracting authority from performing the contract since Czech legislation does not preclude the conclusion of a public contract after the decision of the President of the Office has become final in the framework of the administrative proceedings.

25 In that context, the referring court questions whether Directive 89/665 and the requirement to ensure effective judicial review deriving from Article 47 of the Charter preclude legislation of a Member State which enables a contracting authority to conclude a public contract before expiry of the period prescribed for bringing a judicial action against the decision of the second-instance administrative body or before the court hearing the case can rule on an application seeking the adoption of an interim measure prohibiting the contracting authority in question from concluding that contract until the ruling on that action has become final.

26 It is apparent from the case-law of the Czech courts that if a public contract has been concluded before the court hearing the case has ruled on such an action or application, that court no longer makes a ruling on interim measures, given that, in such a case, it is no longer necessary to regulate the situation of the parties on an interim basis.

27 Accordingly, were the court hearing the case to find that the Office had erred in its assessment of the lawfulness of excluding the tenderer concerned, it would have to annul as unlawful the decision of the President of the Office, referred to in paragraph 21 above, and refer the case back to that administrative authority. In that case, if the public contract at issue was concluded before that court gives its decision, the Office, once the case has been referred back to it, will not carry out a fresh examination of the merits of the application for review of the actions of the contracting authority in accordance with the findings of that court and will close the proceedings on the basis of Article 257(j) of Law No 134/2016.

28 In such a situation, the excluded tenderer would only be able to turn to the civil courts in a claim for compensation for the damage caused by the contracting authority’s unlawful conduct; however, according to the referring court, the conditions for obtaining such compensation are difficult to satisfy.

29 That court adds that, under Czech legislation, the Office is a ‘review body’ within the meaning of Directive 89/665. In that regard, Article 246 of Law No 134/2016 lays down the time limits during which the contracting authority is prohibited from concluding a contract during the proceedings before the Office. However, that latter body cannot be considered to be a court or tribunal.

30 Consequently, if, as is apparent from the judgment of 21 December 2021, Randstad Italia (C‑497/20, EU:C:2021:1037, paragraph 73), it should be held that the independent review body, under Article 2(3) or Article 2a(2) of Directive 89/665, must be a court or tribunal for the purposes of Article 47 of the Charter, the Czech legislation which allows a public contract to be concluded immediately after the decision of the President of the Office infringes that directive and does not ensure an effective judicial review for tenderers excluded from a public procurement procedure.

31 Lastly, were the Court to find that Directive 89/665 has not been transposed properly into the Czech legal order, the referring court considers that it would be required, where a finding is made that the decision of the contracting authority is unlawful, to oblige the Office to disapply the provisions of Czech law giving rise to such an infringement of that directive.

32 In those circumstances the Krajský soud v Brně (Regional Court, Brno) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Is it compatible with Articles 2(3) and 2a(2) of Directive [89/665], interpreted in the light of Article 47 of [the Charter], for Czech legislation to permit a contracting authority to conclude a public contract before an action is brought before a court competent to review the legality of a second-instance decision of the [Office] to exclude a tenderer?’

33 Following the delivery of the Opinion of the Advocate General, CROSS Zlín, by document lodged at the Registry of the Court of Justice on 19 September 2023, requested that the Court order the oral part of the procedure to be reopened, pursuant to Article 83 of the Rules of Procedure of the Court of Justice.

34 In support of its request, CROSS Zlín argues that there is a risk, having regard to the Advocate General’s Opinion, that the case may be decided on the basis of an argument which has not been debated between the parties or the interested persons referred to in Article 23 of the Statute of the Court of Justice of the European Union. The Czech legal order does not allow an administrative court, either in fact or in law, to annul a contract, even if it was entered into on the basis of an unlawful decision by the contracting authority. The Opinion does not take account of that factor, which CROSS Zlín would aim to explain in a reopening of the oral procedure.

35 In addition, it states that it wishes in particular to address before the Court the reason why the Krajský soud v Brně (Regional Court, Brno) dismissed its application for the adoption of an interim measure intended to prohibit the performance of the public contract at issue in the main proceedings; the jurisdiction of the Czech administrative courts to rule on the validity of contracts concluded in a tender procedure in connection with the decisions given at first instance by the Office; and the actual effects of the annulment of a decision of the Office by an administrative court and their consequences for the agreement contract for the performance of a public contract that has already been concluded. In that regard, it suggests making additions to the answer which the Advocate General proposed to give to the question referred for a preliminary ruling.

36 It should be observed that, under the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require his or her involvement. The Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based (judgment of 28 September 2023, LACD, C‑133/22, EU:C:2023:710, paragraph 22 and the case-law cited).

37 It should also be borne in mind that neither the Statute of the Court of Justice of the European Union nor the Rules of Procedure make provision for the interested parties to respond to an Advocate General’s Opinion. As a consequence, the fact that a party to the main proceedings or an interested party disagrees with the Advocate General’s Opinion, irrespective of the questions examined in the Opinion, cannot in itself constitute grounds justifying the reopening of the oral procedure (judgments of 28 May 2020, Interseroh, C‑654/18, EU:C:2020:398, paragraph 33, and of 9 November 2023, Všeobecná úverová banka, C‑598/21, EU:C:2023:845, paragraph 50).

38 CROSS Zlín cannot therefore validly justify its request to reopen the oral part of the procedure by suggesting additions to the answer to the question referred for a preliminary ruling proposed by the Advocate General in his Opinion.

39 In addition, it is true that pursuant to Article 83 of its Rules of Procedure, the Court may at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, in particular if it considers that it lacks sufficient information or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the parties or the interested persons referred to in Article 23 of the Statute of the Court of Justice of the European Union.

40 However, CROSS Zlín and the interested parties who participated in the present proceedings have been able to set out, during both the written and oral stages of the procedure, the matters of law which they considered relevant to enable the Court to interpret Directive 89/665, in order to answer the question referred by the referring court. In that respect, the Court considers that it has all the information necessary to rule on the present request for a preliminary ruling and that none of the factors raised by CROSS Zlín in support of its request to reopen the oral part of the procedure justifies such a reopening on the basis of Article 83 of the Rules of Procedure.

41 In those circumstances, the Court considers, after hearing the Advocate General, that there is no need to order that the oral part of the procedure be reopened.

42 It should be noted as a preliminary point that, according to settled case-law, it is for the Court, in the procedure laid down by Article 267 TFEU providing for cooperation with national courts, to provide the referring court with an answer which will be of use to it and enable it to decide the case before it and, to that end, the Court should, where necessary, reformulate the questions referred to it (judgment of 5 May 2022, Universiteit Antwerpen and Others, C‑265/20, EU:C:2022:361, paragraph 33 and the case-law cited).

43 The wording of the question refers, inter alia, to an interpretation of Article 2(3) of Directive 89/665 in relation to a Member State’s legislation that enables the contracting authority to conclude a public procurement contract before the judicial body with jurisdiction is able to review the legality of a decision by the contracting authority to exclude a tenderer from that contract.

44 However, it should be observed that Article 2(3) does not refer to review of a decision to exclude a tenderer from the contract concerned, but review of a decision to award that contract. Accordingly, since it is apparent from the information in the request for a preliminary ruling that CROSS Zlín sought to have the Office annul not only the notice concerning its exclusion, but also the decision to award the public contract at issue in the main proceedings to the other tenderer, Siemens Mobility, it is necessary to examine the present request for a preliminary ruling with respect solely to that award decision.

45 In those circumstances, it must be held that, by its question, the referring court asks, in essence, whether Article 2(3) and Article 2a(2) of Directive 89/665 must be interpreted as precluding legislation of a Member State which prohibits a contracting authority from concluding a public contract only until the date on which the body of first instance, within the meaning of Article 2(3), which, in that Member State, is not judicial in character, rules on the review of the decision to award that contract.

46 It should be observed at the outset that Directive 89/665 contains detailed provisions laying down a coherent system of review procedures in the field of public contracts which must, in accordance with Article 1(3) of that directive, be available at least to any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement.

47 In that regard, it should be observed in the first place that, according to Article 2a(1) of Directive 89/665, Member States are to ensure that the persons referred to in Article 1(3) of that directive have sufficient time for effective review of the contract award decisions taken by contracting authorities, by adopting the necessary provisions respecting the minimum conditions set out, inter alia, in Article 2a(2).

48 The latter provision lays down the minimum standstill periods during which it is not permitted to conclude the public contract following the decision to award it. Those periods, depending on the circumstances, are 10 or 15 calendar days, with effect from the day following the date on which the contract award decision in question was sent to the tenderers concerned or received by them, depending on the method of sending that decision.

49 Article 2a(2) of Directive 89/665 thus establishes automatic standstill periods in relation to the conclusion of a public contract in order to ensure the effectiveness of the review of such an award decision which may be sought by the persons referred to in Article 1(3) of that directive.

50 In the second place, when those persons apply for such a review, Article 2(3) of that directive applies.

51 In accordance with settled case-law, when interpreting a provision of EU law, account must be taken not only of its wording but also of its context and the objectives pursued by the rules of which it forms part (judgment of 22 December 2022, Sambre & Biesme and Commune de Farciennes, C‑383/21 and C‑384/21, EU:C:2022:1022, paragraph 54, and the case-law cited).

52 In that regard, it is apparent, first of all, from the wording of Article 2(3) of Directive 89/665 that when a body of first instance, which is independent of the contracting authority, reviews a contract award decision, the contracting authority may not conclude that contract before that body of first instance has made a decision on the application either for interim measures or for that review.

53 Accordingly, first, that provision lays down that an application for review of the decision to award a public contract has suspensive effect, with regard to the signing of the contract, during the procedure before the first-instance body carrying out that review or, at the very least, until that body has ruled on any application for interim measures. Second, even though that provision requires the body in question to be independent of the contracting authority, it does not contain any indication to show that that body should be judicial in character.

54 As regards, next, the context of Article 2(3) of Directive 89/665, Article 2(9) explicitly foresees a situation where ‘bodies responsible for review procedures are not judicial in character’, from which it follows that the Member States are able to confer on such bodies the power to hear and determine reviews of decisions to award a public contract. In such cases, Article 2(9) states that any allegedly illegal measure taken by such a review body which is not judicial in character or any alleged defect in the exercise of the powers conferred on it must be capable of being the subject of judicial review or review by another body which is a court or tribunal within the meaning of Article 267 TFEU, which is independent of both the contracting authority and of that non-judicial review body that ruled at first instance.

55 Article 2(9) thus allows Member States to choose between two options in organising review procedures for public contracts. The first option consists in vesting the power to determine reviews in judicial bodies. Under the second option, that power is, initially, granted to bodies that are not judicial in character. In such circumstances, all the decisions taken by those bodies must be amenable to judicial review or to a review which should, in essence, be ‘judicial’ for the purposes of EU law, which makes it possible to ensure that an adequate remedy is available (see, to that effect, judgment of 4 March 1999, HI, C‑258/97, EU:C:1999:118, paragraphs 16 and 17).

56 However, it must be observed that Article 2(3) of Directive 89/665, in laying down an obligation to suspend the conclusion of a public contract, does not make any reference to the judicial review, provided for in Article 2(9) of that directive, of the decisions by the bodies responsible for review procedures which are not judicial in character.

57 In those circumstances, both that lack of reference and the choice afforded to Member States by Article 2(9) of Directive 89/665 to grant jurisdiction to determine procedures for the review of decisions awarding a contract to first-instance bodies that are either judicial or non-judicial in character mean that, when a Member State decides to confer that power on a body of first instance which is not judicial in character, the words ‘review body’ in Article 2(3) refer to that non-judicial body of first instance. In such circumstances, the Member States must provide for suspension of the conclusion of the public contract concerned, either automatically until that body has ruled on the review or, at the very least, until it has decided on an application for interim measures seeking such a suspension.

58 By contrast, Article 2(3) of Directive 89/665, read in the light of Article 2(9) thereof, does not require that that suspension should remain in place after the end of the procedure before such a non-judicial review body, for example until a body that is judicial in character has ruled on the action that may be brought against the decision of that non-judicial review body.

59 Lastly, that finding is consistent with the objectives pursued by Directive 89/665. That directive is intended to ensure full respect for the right to an effective remedy and to a fair hearing, enshrined in the first and second paragraphs of Article 47 of the Charter (see, to that effect, judgment of 7 September 2021, Klaipėdos regiono atliekų tvarkymo centras, C‑927/19, EU:C:2021:700, paragraph 128 and the case-law cited).

60 In that regard, it has been held that Article 1(1) and (3) of that directive, which is intended to protect economic operators against arbitrary behaviour on the part of the contracting authority, is thus designed to reinforce the existence, in all Member States, of effective remedies, which are as rapid as possible, so as to ensure the effective application of the EU rules on public procurement, in particular at a stage when infringements can still be rectified (judgment of 7 September 2021, Klaipėdos regiono atliekų tvarkymo centras, C‑927/19, EU:C:2021:700, paragraph 127 and the case-law cited).

61 That said, it should also be observed that the EU legislature sought, by the provisions of Directive 89/665, to accommodate the interests of the tenderer adversely affected and the interests of the contracting authority and of the successful tenderer (see, to that effect, judgment of 11 September 2014, Fastweb, C‑19/13, EU:C:2014:2194, paragraph 63, and order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 34).

62 Accordingly, first, Article 2(5) of that directive provides that the body responsible for review procedures may take into account the probable consequences of interim measures for all interests likely to be harmed, as well as the public interest, and may decide not to grant such interim measures when their negative consequences could exceed their benefits. The interest in the conclusion of public contracts without excessive delay constitutes such a public interest.

63 Second, the second subparagraph of Article 2(7) of Directive 89/665 states provides that a Member State may provide that, where a contract has been concluded in accordance with Article 2(3), that is to say, that it has been entered into after the end of the standstill on its conclusion, the powers of the body responsible for review procedures are to be limited to awarding damages to any person harmed by an infringement of EU law on public procurement or of national rules implementing that law.

64 Those factors therefore support an interpretation, which arises from reading Article 2(3) of Directive 89/665 in the light of Article 2(9), to the effect that the suspension of the conclusion of a public contract, provided for in Article 2(3), is to remain in place, at the latest, until the date on which the body of first instance rules on an application for review of the decision to award that contract, whether that body is of a judicial character or not. Member States may provide that after that body has delivered its decision a party that has suffered harm may only claim damages.

65 In the third place, that interpretation cannot be called into question by the judgment of 21 December 2021, Randstad Italia (C‑497/20, EU:C:2021:1037). In paragraph 73 of that judgment, the Court interpreted the expression ‘independent review body’, within the meaning of the second subparagraph of Article 2a(2) of Directive 89/665, as referring to an independent and impartial tribunal previously established by law, within the meaning of Article 47 of the Charter. However, the Court expressly limited that latter interpretation, stating that it applied ‘[for] determining whether the exclusion of a tenderer has become definitive’ for the purposes of that second subparagraph of Article 2a(2).

66 In that regard, the Court stated, in paragraph 74 of that judgment, that the fact that the exclusion decision is not yet definitive determines, for tenderers, their standing to challenge the contract award decision. In paragraph 75 of that judgment, it specified that ‘only the definitive exclusion, within the meaning of [the second subparagraph of] Article 2a(2) of Directive 89/665, can have the effect of depriving a tenderer of standing to challenge the [contract] award decision’.

67 It may thus happen that a decision by the ‘independent review body’ referred to in the second subparagraph of Article 2a(2) leads to a tenderer being deprived of standing to challenge a contract award decision. In that context, observance of the right of such a tenderer to effective judicial protection requires that the body ruling on the lawfulness of the exclusion of that tenderer be an independent and impartial tribunal previously established by law, within the meaning of Article 47 of the Charter.

68 However, those considerations do not apply with respect to the review body of first instance referred to in Article 2(3) of Directive 89/665. Where a Member State makes use of the possibility afforded to it by that directive in order to put in place such a body that is not judicial in character, the right to effective judicial protection is ensured by the requirement, laid down in Article 2(9), that all the decisions of such a non-judicial review body can be the subject of judicial review.

69 In the fourth and last place, it is important, however, to observe, as the European Commission has done, that where the legislation of a Member State does not provide for the automatic suspension of the conclusion of a public contract until the date on which the review body of first instance, as referred to in Article 2(3) of Directive 89/665, rules on the review, and where that review body is not judicial in character, the rejection by that body of an application for interim measures seeking to prohibit the conclusion of a public contract until the date on which that body rules on that application must be amenable to judicial review with suspensive effect until the court considering the matter has ruled on those interim measures.

70 That requirement derives from a combined reading of Article 2(3) and Article 2(9) of Directive 89/665. Accordingly, in order to ensure the effectiveness of an action against the decision of a non-judicial body of first instance rejecting an application for interim measures seeking to prohibit the conclusion of a public contract until the date on which that body has ruled, first, the tenderer concerned by that rejection decision must be accorded a reasonable standstill period in order to enable it to bring that action and, second, if that action is brought, the conclusion of that contract must remain suspended until the court considering the matter rules on that action.

71 In the present case, it is apparent from the order for reference that Paragraph 246 of Law No 134/2016 provides that a public contract may not be concluded, first, before expiry of the period for lodging a complaint with the contracting authority against the decision awarding the contract, and then before expiry of the period for submitting an application for review of the acts of the contracting authority to the Office, and, second, during the procedure before the Office, which, according to the referring court, is the review body of first instance, which is independent of the contracting authority, within the meaning of Article 2(3) of Directive 89/665, and which is not judicial in character. In particular, subject to verification, which it is for that court to carry out, in accordance with Paragraph 246(1), the automatic prohibition on concluding a public contract remains in place until the date on which that review body of first instance rules on the review of the decision awarding the contract.

72 In that regard, it follows from the information in the order for reference that, in the main proceedings, first, the Office adopted of its own motion, on 3 July 2020, an interim measure prohibiting the contracting authority from concluding the public contract at issue in the main proceedings until the closure with final effect of the administrative proceedings before the Office. Next, the President of the Office, as second-instance administrative body, rejected, by decision of 9 November 2020, the complaint which CROSS Zlín had lodged against the Office’s decision rejecting its application for annulment of the decision awarding the public contract at issue and, lastly, on 18 November 2020, the contracting authority concluded that contract with the successful tenderer. It follows that that contract was concluded only after the Office ruled definitively, at two levels of jurisdiction, on the lawfulness of that award decision, which it is, however, for the referring court to verify.

73 It should thus be found, subject to the checks that that court must carry out, that that national legislation and its implementation in the main proceedings appear to ensure the proper application of Article 2(3) and Article 2a(2) of Directive 89/665, read in the light of the right to effective judicial protection, as provided for in Article 47 of the Charter.

74 In the light of the foregoing considerations, the answer to the question referred is that Article 2(3) and Article 2a(2) of Directive 89/665 must be interpreted as not precluding national legislation which prohibits a contracting authority from concluding a public contract only until the date on which the body of first instance, within the meaning of the aforementioned Article 2(3), rules on the review of the decision to award that contract, it being irrelevant in that regard whether that review body is judicial in character or not.

75 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Article 2(3) and Article 2a(2) 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, as amended by Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014,

must be interpreted as not precluding national legislation which prohibits a contracting authority from concluding a public contract only until the date on which the body of first instance, within the meaning of the aforementioned Article 2(3), rules on the review of the decision to award that contract, it being irrelevant in that regard whether that review body is judicial in character or not.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> CROSS Zlin (Procedures for the review of the award of public supply and public works contracts - Judgment) [2024] EUECJ C-303/22 (18 January 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/C30322.html Cite as: [2024] EUECJ C-303/22, ECLI:EU:C:2024:60, EU:C:2024:60

Court of Justice of the European Communities (including Court of First Instance Decisions)