# C_2020215EN.01000901.xml

| 29.6.2020 | EN | Official Journal of the European Union | C 215/9 |
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29.6.2020

EN

Official Journal of the European Union

C 215/9

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Judgment of the Court (Fourth Chamber) of 26 March 2020 (requests for a preliminary ruling from the Fővárosi Törvényszék — Hungary) — Hungeod Közlekedésfejlesztési, Földmérési, Út- és Vasúttervezési Kft. (C-496/18), Sixense Soldata (C-496/18), Budapesti Közlekedési Zrt. (C-496/18 and C-497/18) v Közbeszerzési Hatóság Közbeszerzési Döntőbizottság

(Joined Cases C-496/18 and C-497/18) (1)

(Reference for a preliminary ruling - Public procurement - Review procedures concerning the award of public supply and public works contracts - Directive 89/665/EEC - Procurement procedures of entities operating in the water, energy, transport and telecommunications sectors - Directive 92/13/EEC - Public procurement - Directives 2014/24/EU and 2014/25/EU - Review of the application of public procurement rules - National legislation which allows certain bodies to initiate a procedure of their own motion where there has been an unlawful amendment to a contract which is in the course of being performed - Time-barring of an authority’s right to initiate a procedure of its own motion - Principles of legal certainty and proportionality)

(2020/C 215/10)

Language of the case: Hungarian

Referring court

Fővárosi Törvényszék

Parties to the main proceedings

Applicants: Hungeod Közlekedésfejlesztési, Földmérési, Út- és Vasúttervezési Kft. (C-496/18), Sixense Soldata (C-496/18), Budapesti Közlekedési Zrt. (C-496/18 and C-497/18)

Defendant: Közbeszerzési Hatóság Közbeszerzési Döntőbizottság

Intervener: Közbeszerzési Hatóság Elnöke

Operative part of the judgment

| 1. | Recitals 25 and 27 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, as amended by Directive 2007/66, Article 1(1) and (3) 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, Article 83(1) and (2) 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, and Article 99(1) and (2) 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 neither requiring Member States to adopt, nor precluding them from adopting, legislation under which a monitoring authority may initiate of its own motion, on grounds of protection of the European Union’s financial interests, a review procedure in order to monitor infringements of public procurement rules. However, where provision is made for such a procedure, it falls within the scope of EU law since the public contracts which are the subject of such a review fall within the material scope of the public procurement directives and it must therefore comply with EU law, including its general principles, of which the general principle of legal certainty forms part; |
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1.

Recitals 25 and 27 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, as amended by Directive 2007/66, Article 1(1) and (3) 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, Article 83(1) and (2) 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, and Article 99(1) and (2) 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 neither requiring Member States to adopt, nor precluding them from adopting, legislation under which a monitoring authority may initiate of its own motion, on grounds of protection of the European Union’s financial interests, a review procedure in order to monitor infringements of public procurement rules. However, where provision is made for such a procedure, it falls within the scope of EU law since the public contracts which are the subject of such a review fall within the material scope of the public procurement directives and it must therefore comply with EU law, including its general principles, of which the general principle of legal certainty forms part;

| 2. | The general principle of legal certainty precludes, in a review procedure initiated by a monitoring authority of its own motion on grounds of protection of the European Union’s financial interests, new national legislation from providing that, in order to review the legality of amendments to public contracts, such a procedure must be initiated within the limitation period laid down in the new legislation, even though the limitation period provided for by the previous legislation, which was applicable on the date of those amendments, has expired. |
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2.

The general principle of legal certainty precludes, in a review procedure initiated by a monitoring authority of its own motion on grounds of protection of the European Union’s financial interests, new national legislation from providing that, in order to review the legality of amendments to public contracts, such a procedure must be initiated within the limitation period laid down in the new legislation, even though the limitation period provided for by the previous legislation, which was applicable on the date of those amendments, has expired.

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(1)  OJ C 381, 22.10.2018.

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