# C_2020068EN.01001801.xml

| 2.3.2020 | EN | Official Journal of the European Union | C 68/18 |
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2.3.2020

EN

Official Journal of the European Union

C 68/18

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Order of the Court (Ninth Chamber) of 18 December 2019 (request for a preliminary ruling from the Székesfehérvári Törvényszék — Hungary) — Hochtief AG v Fővárosi Törvényszék

(Case C-362/18) (1)

(Reference for a preliminary ruling - Public procurement - Review procedures - Directive 89/665/EEC - Directive 92/13/EEC - Right to effective judicial protection - Principles of effectiveness and equivalence - Action for review of judicial decisions in breach of EU law - Liability of the Member States in the event of infringement of EU law by national courts or tribunals - Assessment of damage eligible for compensation)

(2020/C 68/16)

Language of the case: Hungarian

Referring court

Székesfehérvári Törvényszék

Parties to the main proceedings

Applicant: Hochtief AG

Defendant: Fővárosi Törvényszék

Operative part of the order

| 1. | The liability of a Member State for damage caused by a decision of a national court or tribunal adjudicating at final instance which breaches a rule of EU law is governed by the conditions laid down by the Court, in particular in paragraph 51 of the judgment of 30 September 2003, Köbler (C-224/01, EU:C:2003:513), without excluding the possibility that that State may incur liability under less strict conditions on the basis of national law. That liability is not precluded by the fact that that decision has acquired the force of res judicata. In the context of the enforcement of that liability, it is for the national court or tribunal before which the action for damages has been brought to determine, taking into account all the factors which characterise the situation in question, whether the national court or tribunal adjudicating at final instance committed a sufficiently serious infringement of EU law by manifestly disregarding the relevant EU law, including the relevant case-law of the Court. By contrast, EU law precludes a rule of national law which, in such a case, generally excludes the costs incurred by a party as a result of the harmful decision of the national court or tribunal from damage which may be the subject of compensation. |
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1.

The liability of a Member State for damage caused by a decision of a national court or tribunal adjudicating at final instance which breaches a rule of EU law is governed by the conditions laid down by the Court, in particular in paragraph 51 of the judgment of 30 September 2003, Köbler (C-224/01, EU:C:2003:513), without excluding the possibility that that State may incur liability under less strict conditions on the basis of national law. That liability is not precluded by the fact that that decision has acquired the force of res judicata. In the context of the enforcement of that liability, it is for the national court or tribunal before which the action for damages has been brought to determine, taking into account all the factors which characterise the situation in question, whether the national court or tribunal adjudicating at final instance committed a sufficiently serious infringement of EU law by manifestly disregarding the relevant EU law, including the relevant case-law of the Court. By contrast, EU law precludes a rule of national law which, in such a case, generally excludes the costs incurred by a party as a result of the harmful decision of the national court or tribunal from damage which may be the subject of compensation.

| 2. | EU law, in particular 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/EC of the European Parliament and of the Council of 11 December 2007, 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, as amended by Directive 2007/66, as well as the principles of equivalence and effectiveness, must be interpreted as not precluding legislation of a Member State which does not allow review of a judgment, which has acquired the force of res judicata, of a court or tribunal of that Member State which has ruled on an action for annulment against an act of a contracting authority without addressing a question the examination of which was envisaged in an earlier judgment of the Court in response to a request for a preliminary ruling made in the course of the proceedings relating to that action for annulment or in an earlier judgment of the Court in response to a request for a preliminary ruling in a different case. However, if the applicable domestic rules of procedure include the possibility for national courts to reverse a judgment which has acquired the force of res judicata, for the purposes of rendering the situation arising from that judgment compatible with an earlier national judicial decision which has become final – where both the court which delivered that judgment and the parties to the case leading to that judgment were already aware of that earlier decision – that possibility must, in accordance with the principles of equivalence and effectiveness, in the same circumstances, prevail in order to render the situation compatible with EU law, as interpreted by an earlier judgment of the Court of Justice. |
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2.

EU law, in particular 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/EC of the European Parliament and of the Council of 11 December 2007, 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, as amended by Directive 2007/66, as well as the principles of equivalence and effectiveness, must be interpreted as not precluding legislation of a Member State which does not allow review of a judgment, which has acquired the force of res judicata, of a court or tribunal of that Member State which has ruled on an action for annulment against an act of a contracting authority without addressing a question the examination of which was envisaged in an earlier judgment of the Court in response to a request for a preliminary ruling made in the course of the proceedings relating to that action for annulment or in an earlier judgment of the Court in response to a request for a preliminary ruling in a different case. However, if the applicable domestic rules of procedure include the possibility for national courts to reverse a judgment which has acquired the force of res judicata, for the purposes of rendering the situation arising from that judgment compatible with an earlier national judicial decision which has become final – where both the court which delivered that judgment and the parties to the case leading to that judgment were already aware of that earlier decision – that possibility must, in accordance with the principles of equivalence and effectiveness, in the same circumstances, prevail in order to render the situation compatible with EU law, as interpreted by an earlier judgment of the Court of Justice.

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(1)  OJ C 311, 3.9.2018

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