Opinion of the Advocate General — ECLI:EU:C:2016:651
Date: 2016-09-08
Language of the case: Spanish
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary — Judgment of the Court (Fourth Chamber), 5 April 2017 1. Approximation of laws — Review procedures in respect of the award of public supply and public works contracts — Directive 89/665 — Decisions amenable to review — National legislation excluding decisions allowing a tenderer to participate in a procurement procedure from being classed among the preparatory acts amenable to independent review before the award of a contract — Not permissible (Council Directive 89/665, as amended by Directive 2007/66, Arts 1(1) and 2(1)(a) and (b)) 2. Approximation of laws — Review procedures in respect of the award of public supply and public works contracts — Directive 89/665 — Member States' duty to provide for a review procedure — Direct effect of Articles 1(1) and 2(1)(a) and (b) (Council Directive 89/665, as amended by Directive 2007/66, Arts 1(1) and 2(1)(a) and (b)) 1. In a situation such as that in the main proceedings, Articles 1(1) and 2(1)(a) and (b) 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/EC of the European Parliament and of the Council of 11 December 2007, must be interpreted as precluding national legislation under which a decision allowing a tenderer to participate in a procurement procedure — a decision allegedly adopted in breach of EU public procurement law or the national legislation transposing it — is not classed among the preparatory acts of a contracting authority which may be subject to an independent judicial review. As the Court has already held, although Directive 89/665 has not formally laid down the time from which the possibility of review, as provided for in Article 1(1), must be open, the objective of that directive, as referred to in the preceding paragraph, does not authorise Member States to make the exercise of the right to apply for review conditional on the fact that the public procurement procedure in question has formally reached a particular stage (see, to that effect, judgment of 11 January 2005, Stadt Halle and RPL Lochau (C‑26/03, EU:C:2005:5, paragraph 38). As regards, more specifically, a decision such as that at issue in the main proceedings allowing a tenderer to participate in a public procurement procedure, the fact that the national legislation at issue in the main proceedings requires, in all cases, a tenderer to wait for a decision awarding the contract in question before it may apply for a review of a decision allowing another tenderer to participate in that procurement procedure infringes the provisions of Directive 89/665. (see paras 31, 34, 37, operative part 1) 2. Articles 1(1) and 2(1)(a) and (b) of Directive 89/665, as amended by Directive 2007/66, have direct effect. (see para. 41, operative part 2)