# C_2020240EN.01002302.xml

| 20.7.2020 | EN | Official Journal of the European Union | C 240/23 |
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20.7.2020

EN

Official Journal of the European Union

C 240/23

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Judgment of the Court (Fourth Chamber) of 14 May 2020 (request for a preliminary ruling from the Fővárosi Törvényszék — Hungary) –T-Systems Magyarország Zrt., BKK Budapesti Közlekedési Központ Zrt. v Közbeszerzési Hatóság Közbeszerzési Döntőbizottság

(Case C-263/19) (1)

(Reference for a preliminary ruling - Public procurement - Award of public contracts - Directive 2014/24/EU - Article 1(2) and Article 72 - Directive 2014/25/EU - Article 1(2) and Article 89 - Review procedures to the award of public supply and public works contracts - Directive 89/665/EEC - Article 2e(2) - Procurement procedures of entities operating in the water, energy, transport and telecommunications sectors - Directive 92/13/EEC - Article 2e(2) - Modification of a contract concluded following a public procurement procedure - No new public procurement procedure - Fines imposed on the contracting authority and the tenderer - Principle of proportionality)

(2020/C 240/31)

Language of the case: Hungarian

Referring court

Fővárosi Törvényszék

Parties in the main proceedings

Applicants: T-Systems Magyarország Zrt., BKK Budapesti Közlekedési Központ Zrt.g

Defendant: Közbeszerzési Hatóság Közbeszerzési Döntőbizottság

Intervener: Közbeszerzési Hatóság Elnöke

Operative part of the judgment

| 1. | Article 2e(2) of Council Directive 89/665/ 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 2007/66/EC of the European Parliament and of the Council of 11 December 2007, Article 2e(2) of 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, as amended by Directive 2007/66, recitals 19 to 21 of Directive 2007/66, as well as recitals 12, 113, 115 and 117, Article 1(2) and Article 89 of Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC, must be interpreted as not precluding national legislation which, in the context of a review procedure initiated ex officio by a supervisory authority, allows an infringement to be attributed and a fine imposed not only on the contracting authority but also on the tenderer, in the event that, where a public procurement contract is modified in the course of its performance, public procurement rules have been unlawfully set aside. However, where such a possibility is provided for in national legislation, the review procedure must comply with EU law, including the general principles thereof, in so far as the public contract concerned itself falls within the material scope of the Public Procurement Directives, be it ab initio or further to the unlawful modification of that contract. |
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1.

Article 2e(2) of Council Directive 89/665/ 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 2007/66/EC of the European Parliament and of the Council of 11 December 2007, Article 2e(2) of 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, as amended by Directive 2007/66, recitals 19 to 21 of Directive 2007/66, as well as recitals 12, 113, 115 and 117, Article 1(2) and Article 89 of Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC, must be interpreted as not precluding national legislation which, in the context of a review procedure initiated ex officio by a supervisory authority, allows an infringement to be attributed and a fine imposed not only on the contracting authority but also on the tenderer, in the event that, where a public procurement contract is modified in the course of its performance, public procurement rules have been unlawfully set aside. However, where such a possibility is provided for in national legislation, the review procedure must comply with EU law, including the general principles thereof, in so far as the public contract concerned itself falls within the material scope of the Public Procurement Directives, be it ab initio or further to the unlawful modification of that contract.

| 2. | The amount of the fine penalising the unlawful modification of the public contract concluded between a contracting authority and a tenderer must be fixed taking into account the conduct specific to each of those parties. |
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2.

The amount of the fine penalising the unlawful modification of the public contract concluded between a contracting authority and a tenderer must be fixed taking into account the conduct specific to each of those parties.

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(1)  OJ C 206, 17.6.2019.

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