# C_2020433EN.01003601.xml

| 14.12.2020 | EN | Official Journal of the European Union | C 433/36 |
| --- | --- | --- | --- |

14.12.2020

EN

Official Journal of the European Union

C 433/36

---

Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 30 September 2020 — Randstad Italia SpA v Umana SpA and Others

(Case C-497/20)

(2020/C 433/45)

Language of the case: Italian

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Appellant: Randstad Italia SpA

Respondents: Umana SpA, Azienda USL Valle d’Aosta, IN. VA SpA and Synergie Italia agenzia per il lavoro SpA

Questions referred

| 1. | Do Article 4(3) TEU, Article 19(1) TEU, Article 2(1) and (2) TFEU, and Article 267 TFEU, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, preclude an interpretative practice such as that regarding the eighth paragraph of Article 111 of the Italian Constitution, Article 360(1)(1) and Article 362(1) of the Italian Code of Civil Procedure, and Article 110 of the Italian Code of Administrative Procedure — under which provisions an appeal in cassation against a judgment of the Consiglio di Stato (Council of State) may be brought for ‘reasons of jurisdiction’ — such as that which emerges from Judgment No 6/2018 of the Corte costituzionale (Constitutional Court) and from subsequent national case-law, in which it has been held, marking a departure from the approach previously taken, that the remedy of an appeal in cassation, on grounds of a ‘lack of jurisdiction’, is not available for the purpose of challenging judgments in which the Council of State has applied interpretative practices developed nationally but in conflict with judgments of the Court of Justice, in sectors governed by EU law (in the present case, public procurement) and with regard to which the Member States have waived their right to exercise sovereign powers in a manner incompatible with EU law, with the effect of consolidating infringements of Community law that might have been rectified using the remedy of an appeal in cassation and of undermining the uniform application of EU law and the effectiveness of the judicial protection afforded to individuals in legal situations of Community significance, contrary to the requirement that EU law be fully and duly applied by every court in a manner necessarily consistent with its correct interpretation by the Court of Justice, regard being had to the limits on the ‘procedural autonomy’ of the Member States in the structuring of their rules of procedure? |
| --- | --- |

1.

Do Article 4(3) TEU, Article 19(1) TEU, Article 2(1) and (2) TFEU, and Article 267 TFEU, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, preclude an interpretative practice such as that regarding the eighth paragraph of Article 111 of the Italian Constitution, Article 360(1)(1) and Article 362(1) of the Italian Code of Civil Procedure, and Article 110 of the Italian Code of Administrative Procedure — under which provisions an appeal in cassation against a judgment of the Consiglio di Stato (Council of State) may be brought for ‘reasons of jurisdiction’ — such as that which emerges from Judgment No 6/2018 of the Corte costituzionale (Constitutional Court) and from subsequent national case-law, in which it has been held, marking a departure from the approach previously taken, that the remedy of an appeal in cassation, on grounds of a ‘lack of jurisdiction’, is not available for the purpose of challenging judgments in which the Council of State has applied interpretative practices developed nationally but in conflict with judgments of the Court of Justice, in sectors governed by EU law (in the present case, public procurement) and with regard to which the Member States have waived their right to exercise sovereign powers in a manner incompatible with EU law, with the effect of consolidating infringements of Community law that might have been rectified using the remedy of an appeal in cassation and of undermining the uniform application of EU law and the effectiveness of the judicial protection afforded to individuals in legal situations of Community significance, contrary to the requirement that EU law be fully and duly applied by every court in a manner necessarily consistent with its correct interpretation by the Court of Justice, regard being had to the limits on the ‘procedural autonomy’ of the Member States in the structuring of their rules of procedure?

| 2. | Do Article 4(3) TEU, Article 19(1) TEU, and Article 267 TFEU, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, preclude the eighth paragraph of Article 111 of the Italian Constitution, Article 360(1)(1) and Article 362(1) of the Italian Code of Civil Procedure, and Article 110 of the Italian Code of Administrative Procedure from being interpreted and applied, as they have been in national judicial practice, in such a manner that an appeal in cassation before the Combined Chambers [of the Court of Cassation] for ‘reasons of jurisdiction’, on grounds of a ‘lack of jurisdiction’, cannot be brought for the purpose of challenging a judgment in which the Council of State, ruling in a dispute involving issues concerning the application of EU law, refrains, without reason, from making a reference to the Court of Justice for a preliminary ruling, where the conditions relieving a national court of that obligation, which have been exhaustively listed by the Court of Justice (in its judgment of 6 October 1982, Cilfit and Others, C-238/81) and which must be strictly interpreted, are absent, contrary to the principle that national rules and procedural practices, even those arising from legislation or the Constitution, are incompatible with EU law if they prevent a national court (of last instance or otherwise), even temporarily, from making a reference for a preliminary ruling, with the effect of usurping the Court of Justice’s exclusive jurisdiction to interpret Community law correctly and in binding fashion, of making any conflicts of interpretation between the law applied by national courts and EU law irremediable (and promoting the consolidation of such conflicts of interpretation), and of undermining the uniform application and effective judicial protection of the rights enjoyed by individuals under EU law? |
| --- | --- |

2.

Do Article 4(3) TEU, Article 19(1) TEU, and Article 267 TFEU, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, preclude the eighth paragraph of Article 111 of the Italian Constitution, Article 360(1)(1) and Article 362(1) of the Italian Code of Civil Procedure, and Article 110 of the Italian Code of Administrative Procedure from being interpreted and applied, as they have been in national judicial practice, in such a manner that an appeal in cassation before the Combined Chambers [of the Court of Cassation] for ‘reasons of jurisdiction’, on grounds of a ‘lack of jurisdiction’, cannot be brought for the purpose of challenging a judgment in which the Council of State, ruling in a dispute involving issues concerning the application of EU law, refrains, without reason, from making a reference to the Court of Justice for a preliminary ruling, where the conditions relieving a national court of that obligation, which have been exhaustively listed by the Court of Justice (in its judgment of 6 October 1982, Cilfit and Others, C-238/81) and which must be strictly interpreted, are absent, contrary to the principle that national rules and procedural practices, even those arising from legislation or the Constitution, are incompatible with EU law if they prevent a national court (of last instance or otherwise), even temporarily, from making a reference for a preliminary ruling, with the effect of usurping the Court of Justice’s exclusive jurisdiction to interpret Community law correctly and in binding fashion, of making any conflicts of interpretation between the law applied by national courts and EU law irremediable (and promoting the consolidation of such conflicts of interpretation), and of undermining the uniform application and effective judicial protection of the rights enjoyed by individuals under EU law?

| 3. | Do the principles expressed by the Court of Justice in its judgments of 5 September 2019, Lombardi, C-333/18, of 5 April 2016, PFE, C-689/13, and of 4 July 2013, Fastweb, C-100/12, in connection with Article 1(1) and (3) and Article 2(1) of Directive 89/665/EEC (1), as amended by Directive 2007/66/EC (2), apply to the case in the main proceedings in which an undertaking has challenged its exclusion from a tendering procedure and the award of the contract to another undertaking and the Council of State has examined the substance only of the ground of appeal whereby the excluded undertaking disputed the points awarded to its technical offer, which were below the ‘minimum threshold’, and has examined as a matter of priority the cross-appeals brought by the contracting authority and the successful tenderer, has upheld them and has declared inadmissible (and refrained from examining the substance of) the other grounds of the main appeal disputing the outcome of the tendering procedure for other reasons (imprecise tender assessment criteria in the tendering specifications, failure to justify the marks awarded, unlawful appointment and composition of the tender committee), in accordance with national judicial practice according to which an undertaking that has been excluded from a tendering procedure has no standing to bring a claim disputing the award of the contract to a competitor undertaking, even by way of the lapse of the tendering procedure, it being necessary to determine the compatibility with EU law of the effect of depriving the undertaking of the right to submit for the court’s examination each and every reason for which it disputes the outcome of the tendering procedure, in a situation where that undertaking’s exclusion has not been definitively established and where every competitor may argue a similar legitimate interest in the exclusion of its competitors’ tenders, which could make it impossible for the contracting authority to choose a regular tender and make it necessary to launch a new tendering procedure in which every tenderer might participate? |
| --- | --- |

3.

Do the principles expressed by the Court of Justice in its judgments of 5 September 2019, Lombardi, C-333/18, of 5 April 2016, PFE, C-689/13, and of 4 July 2013, Fastweb, C-100/12, in connection with Article 1(1) and (3) and Article 2(1) of Directive 89/665/EEC (1), as amended by Directive 2007/66/EC (2), apply to the case in the main proceedings in which an undertaking has challenged its exclusion from a tendering procedure and the award of the contract to another undertaking and the Council of State has examined the substance only of the ground of appeal whereby the excluded undertaking disputed the points awarded to its technical offer, which were below the ‘minimum threshold’, and has examined as a matter of priority the cross-appeals brought by the contracting authority and the successful tenderer, has upheld them and has declared inadmissible (and refrained from examining the substance of) the other grounds of the main appeal disputing the outcome of the tendering procedure for other reasons (imprecise tender assessment criteria in the tendering specifications, failure to justify the marks awarded, unlawful appointment and composition of the tender committee), in accordance with national judicial practice according to which an undertaking that has been excluded from a tendering procedure has no standing to bring a claim disputing the award of the contract to a competitor undertaking, even by way of the lapse of the tendering procedure, it being necessary to determine the compatibility with EU law of the effect of depriving the undertaking of the right to submit for the court’s examination each and every reason for which it disputes the outcome of the tendering procedure, in a situation where that undertaking’s exclusion has not been definitively established and where every competitor may argue a similar legitimate interest in the exclusion of its competitors’ tenders, which could make it impossible for the contracting authority to choose a regular tender and make it necessary to launch a new tendering procedure in which every tenderer might participate?

---

(1)  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).

(2)  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).

---