# C_2018381EN.01001001.xml

| 22.10.2018 | EN | Official Journal of the European Union | C 381/10 |
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22.10.2018

EN

Official Journal of the European Union

C 381/10

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Request for a preliminary ruling from the Fővárosi Törvényszék (Hungary) lodged on 30 July 2018 — Budapesti Közlekedési Zrt. v Közbeszerzési Hatóság Közbeszerzési Döntőbizottság

(Case C-497/18)

(2018/C 381/12)

Language of the case: Hungarian

Referring court

Fővárosi Törvényszék

Parties to the main proceedings

Applicant: Budapesti Közlekedési Zrt.

Defendant: Közbeszerzési Hatóság Közbeszerzési Döntőbizottság

Other party: Közbeszerzési Hatóság Elnöke

Questions referred

| 1. | Must Article 41(1) and Article 47 of the Charter of Fundamental Rights of the European Union, recitals 2, 25, 27 and 36 of Directive 2007/66/EC (1) 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, Article 1(1) and (3) of Council Directive 89/665/EEC (2) 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 and, in this context, the principle of legal certainty, as a general principle of EU law, and the requirement for effective and rapid remedies against decisions by contracting authorities in public procurement cases, be interpreted as precluding legislation by a Member State which, in relation to public procurement contracts entered into before that legislation came into force, provides a general authorisation that enables the competent (monitoring) authority created by that legislation, after the periods established in the Member State’s previous legislation for bringing an action for review of public procurement infringements committed prior to the entry into force of the new legislation have expired but within the time period established in the new legislation, to commence proceedings to investigate a specific public procurement infringement, leading to a ruling that the infringement did take place, the imposition of a public procurement penalty, and the application of the consequences of the voiding of the public contract? |
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1.

Must Article 41(1) and Article 47 of the Charter of Fundamental Rights of the European Union, recitals 2, 25, 27 and 36 of Directive 2007/66/EC (1) 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, Article 1(1) and (3) of Council Directive 89/665/EEC (2) 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 and, in this context, the principle of legal certainty, as a general principle of EU law, and the requirement for effective and rapid remedies against decisions by contracting authorities in public procurement cases, be interpreted as precluding legislation by a Member State which, in relation to public procurement contracts entered into before that legislation came into force, provides a general authorisation that enables the competent (monitoring) authority created by that legislation, after the periods established in the Member State’s previous legislation for bringing an action for review of public procurement infringements committed prior to the entry into force of the new legislation have expired but within the time period established in the new legislation, to commence proceedings to investigate a specific public procurement infringement, leading to a ruling that the infringement did take place, the imposition of a public procurement penalty, and the application of the consequences of the voiding of the public contract?

| 2. | Can the legal rules and principles referred to in question 1 — and also the effective exercise of the (subjective and personal) right of review enjoyed by parties with an interest in the award of a public contract — be applied to the right to commence and conduct review proceedings conferred on the (monitoring) authorities created by the law of the Member State, which have the power to identify and investigate public procurement infringements of their own motion, and which are under a duty to defend the public interest? |
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2.

Can the legal rules and principles referred to in question 1 — and also the effective exercise of the (subjective and personal) right of review enjoyed by parties with an interest in the award of a public contract — be applied to the right to commence and conduct review proceedings conferred on the (monitoring) authorities created by the law of the Member State, which have the power to identify and investigate public procurement infringements of their own motion, and which are under a duty to defend the public interest?

| 3. | Does Article 83(1) and (2) of Directive 2014/24/EU (3) of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (4) mean that in order to defend EU financial interests in the field of public procurement, the law of the Member State may, through the adoption of new legislation, confer on the (monitoring) authorities which have power under the law of the Member State to identify and investigate public procurement infringements of their own motion, and which are under a duty to defend the public interest, a general power to investigate public procurement infringements committed before the entry into force of the legislation in question and to commence and conduct proceedings, even where the time periods established under the previous legislation have expired? |
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3.

Does Article 83(1) and (2) of Directive 2014/24/EU (3) of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (4) mean that in order to defend EU financial interests in the field of public procurement, the law of the Member State may, through the adoption of new legislation, confer on the (monitoring) authorities which have power under the law of the Member State to identify and investigate public procurement infringements of their own motion, and which are under a duty to defend the public interest, a general power to investigate public procurement infringements committed before the entry into force of the legislation in question and to commence and conduct proceedings, even where the time periods established under the previous legislation have expired?

| 4. | If — having regard to the legal rules and principles referred to in question 1 — the (monitoring) authorities’ power of investigation described in questions 1 and 3 is held to be compatible with EU law, is any relevance to be ascribed to the legal, regulatory, technical or organisational deficiencies or other obstacles that prevented the public procurement infringement from being investigated at the time when the infringement took place? |
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4.

If — having regard to the legal rules and principles referred to in question 1 — the (monitoring) authorities’ power of investigation described in questions 1 and 3 is held to be compatible with EU law, is any relevance to be ascribed to the legal, regulatory, technical or organisational deficiencies or other obstacles that prevented the public procurement infringement from being investigated at the time when the infringement took place?

| 5. | Even if, in the light of the above principles, the (monitoring) authorities which are authorised by the law of the Member State to identify and investigate public procurement infringements of their own motion, and which are under a duty to defend the public interest may be granted the power referred to in questions 1 to 4, must Article 41(1) and Article 47 of the Charter of Fundamental Rights of the European Union, recitals 2, 25, 27 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, Article 1(1) and (3) 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 and, in this context, the principle of legal certainty, as a general principle of EU law, and the requirement for effective and rapid remedies against decisions by contracting authorities in public procurement cases, and the proportionality principle, be interpreted as meaning that the national courts may assess whether the period of time that has elapsed between the occurrence of the infringement, the expiry of the period previously established for bringing an action for review, and the commencement of the proceedings to investigate the infringement, is reasonable and proportionate, and may use this as a basis for determining the legal consequences of the nullity of the contested decision or other consequences established by the law of the Member State? |
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5.

Even if, in the light of the above principles, the (monitoring) authorities which are authorised by the law of the Member State to identify and investigate public procurement infringements of their own motion, and which are under a duty to defend the public interest may be granted the power referred to in questions 1 to 4, must Article 41(1) and Article 47 of the Charter of Fundamental Rights of the European Union, recitals 2, 25, 27 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, Article 1(1) and (3) 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 and, in this context, the principle of legal certainty, as a general principle of EU law, and the requirement for effective and rapid remedies against decisions by contracting authorities in public procurement cases, and the proportionality principle, be interpreted as meaning that the national courts may assess whether the period of time that has elapsed between the occurrence of the infringement, the expiry of the period previously established for bringing an action for review, and the commencement of the proceedings to investigate the infringement, is reasonable and proportionate, and may use this as a basis for determining the legal consequences of the nullity of the contested decision or other consequences established by the law of the Member State?

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(1)  OJ 2007 L 335, p. 31.

(2)  OJ 1989 L 395, p. 33.

(3)  Directive of 26 February 2014 (OJ 2014 L 94, p. 65).

(4)  Directive 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).

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