# C_2019206EN.01003201.xml

| 17.6.2019 | EN | Official Journal of the European Union | C 206/32 |
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17.6.2019

EN

Official Journal of the European Union

C 206/32

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Request for a preliminary ruling from the Fővárosi Törvényszék (Hungary) lodged on 28 March 2019 — T Systems Magyarország Zrt. and Others v Közbeszerzési Hatóság Közbeszerzési Döntőbizottság and Others

(Case C-263/19)

(2019/C 206/37)

Language of the case: Hungarian

Referring court

Fővárosi Törvényszék

Parties to the main proceedings

Applicants: T Systems Magyarország Zrt., BKK Budapesti Közlekedési Központ Zrt., Közbeszerzési Hatóság Közbeszerzési Döntőbizottság

Defendants: Közbeszerzési Hatóság Közbeszerzési Döntőbizottság, BKK Budapesti Közlekedési Központ Zrt., T Systems Magyarország Zrt

Intervener: Közbeszerzési Hatóság Elnöke

Questions referred

| 1. | Do Articles 41(1) and 47 of the Charter of Fundamental Rights of the European Union, as well as recitals 10, 29, 107, 109 and 111 and Articles 1(2) and 72 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, (1) preclude a national rule or a practice in relation to the interpretation and application of that rule which, taking into account the contractual legal relationship between the contracting parties, stipulates that an infringement for an unlawful failure to hold a public tender, allegedly violating the rules concerning the modification of contracts, and a failure to comply with the provisions governing the modification of contracts, is committed not only by the contracting entity, but also by the successful tenderer which concluded the contract with it, on the basis that the unlawful modification of the contracts requires joint action by the parties? |
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1.

Do Articles 41(1) and 47 of the Charter of Fundamental Rights of the European Union, as well as recitals 10, 29, 107, 109 and 111 and Articles 1(2) and 72 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, (1) preclude a national rule or a practice in relation to the interpretation and application of that rule which, taking into account the contractual legal relationship between the contracting parties, stipulates that an infringement for an unlawful failure to hold a public tender, allegedly violating the rules concerning the modification of contracts, and a failure to comply with the provisions governing the modification of contracts, is committed not only by the contracting entity, but also by the successful tenderer which concluded the contract with it, on the basis that the unlawful modification of the contracts requires joint action by the parties?

| 2. | In the event that the first question is answered in the negative, taking into account the provisions of Articles 41(1) and 47 of the Charter of Fundamental Rights of the European Union and recitals 10, 29, 107, 109 and 111 and Articles 1(2) and 72 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, do recitals 19, 20 and 21 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, (2) and Article 2(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, (3) 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, (4) preclude a national rule or a practice in relation to the interpretation and application of that rule which allows a penalty (fine) — other than a reduction in the duration of the contract — for unlawful failure to hold a public tendering procedure and for failure to comply with the rules on the modification of contracts to be imposed also on the successful tenderer which concluded the contract with the contracting entity? |
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2.

In the event that the first question is answered in the negative, taking into account the provisions of Articles 41(1) and 47 of the Charter of Fundamental Rights of the European Union and recitals 10, 29, 107, 109 and 111 and Articles 1(2) and 72 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, do recitals 19, 20 and 21 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, (2) and Article 2(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, (3) 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, (4) preclude a national rule or a practice in relation to the interpretation and application of that rule which allows a penalty (fine) — other than a reduction in the duration of the contract — for unlawful failure to hold a public tendering procedure and for failure to comply with the rules on the modification of contracts to be imposed also on the successful tenderer which concluded the contract with the contracting entity?

| 3. | If the first two questions are answered in the negative, the referring court asks the Court of Justice of the European Union to also provide it with guidance as to whether, in order to determine the amount of the penalty (fine), it is sufficient that there is a contractual legal relationship between the parties, without it being necessary to examine the action and the contribution of the parties which led to the modification of the contract. |
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3.

If the first two questions are answered in the negative, the referring court asks the Court of Justice of the European Union to also provide it with guidance as to whether, in order to determine the amount of the penalty (fine), it is sufficient that there is a contractual legal relationship between the parties, without it being necessary to examine the action and the contribution of the parties which led to the modification of the contract.

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(1)  OJ 2014 L 94, p. 65.

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

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

(4)  OJ 1992 L 76, p. 14.

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