Opinion of the Advocate General — ECLI:EU:C:2015:307
Date: 2015-05-07
Language of the case: Italian
Subject matter: Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary — Judgment of the Court (Fifth Chamber), 6 October 2015 1. Judicial proceedings — Intervention — Preliminary ruling proceedings — Application to intervene by a natural or legal person not expressly referred to in the Rules of Procedure — Inadmissibility (Art. 267 TFEU; Statute of the Court of Justice, Art. 23; Rules of Procedure of the Court of Justice, Art. 96(1)) 2. Judicial proceedings — Intervention — Preliminary ruling proceedings — Participation of the parties to the main proceedings — Jurisdiction of the Court to exclude such a party from the proceedings — Limits (Art. 267 TFEU; Statute of the Court of Justice, Art. 23; Rules of Procedure of the Court of Justice, Arts 96(1) and 97(1)) 3. 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 — Fixing of the court fees — Member States’ discretion — Limits — Observance of the principles of equivalence and effectiveness and observance of the effectiveness of Directive 89/665 (Charter of Fundamental Rights of the European Union, Art. 47; Council Directive 89/665, as amended by Directive 2007/66, Arts 1 and 2(1)(b)) 4. 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 — Fixing of the court fees — National legislation requiring the payment of court fees at the time of bringing the action — Whether permissible — Conditions (Council Directive 89/665, as amended by Directive 2007/66, Art. 1 and 2(1)(b)) 5. 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 — Fixing of the court fees — National legislation providing for the charging of multiple court fees to an individual who brings several actions against the same award procedure — Whether permissible — Conditions (Council Directive 89/665, as amended by Directive 2007/66, Arts 1 and 2(1)(b)) 1. See the text of the decision. (see para. 32) 2. In relation to preliminary rulings, the parties to the main proceedings are, according to Article 97(1) of the Rules of Procedure, determined as such by the national court or tribunal in accordance with national rules of procedure. Consequently, it is for that court to determine, in accordance with national rules of procedure, the parties to the main proceedings pending before it. It is not for the Court of Justice to determine whether a decision of the national court accepting an intervention before it has been taken in accordance with those rules. The Court must abide by such a decision in so far as it has not been overturned in any appeal procedures provided for by national law. However, the capacity of ‘party to the main proceedings’ within the meaning of Article 96(1) of the Rules of Procedure read in conjunction with Article 23 of the Statute of the Court of Justice cannot be accorded to a person and that person cannot be admitted in proceedings before the Court referred to in Article 267 TFEU where that person submits to a national court an application to intervene not in order to play an active role in the continuation of the proceedings before the national authority, but for the sole purpose of participating in the proceedings before the Court. In addition, the Court may find it necessary to allow an intervener admitted to the main proceedings to submit written observations only within the time limit applicable to the interested parties, for the purpose of Article 23 of the Statute of the Court, to which the request for a preliminary ruling was initially notified. It would be incompatible with the principle of the sound administration of justice and the requirement that requests for a preliminary ruling be dealt with within a reasonable period of time if, on account of the successive admission of interveners and the period of two months laid down in the second paragraph of Article 23 of the Statute of the Court for the submission of the written observations of those interveners, the written procedure before the Court could not be closed or the procedure had to be reopened. (see paras 32, 33, 35, 37, 39) 3. Directive 89/665 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, does not contain any provision relating specifically to the court fees to be paid by individuals when they bring, in accordance with Article 2(1)(b) of that directive, an action for annulment against an allegedly unlawful decision concerning a procedure for the award of public contracts. In that regard, in the absence of EU rules governing the matter, it is for each Member State, in accordance with the principle of the procedural autonomy of the Member States, to lay down the detailed rules of administrative and judicial procedures governing actions for safeguarding rights which individuals derive from EU law. Those detailed procedural rules must, however, be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness). In addition, since such court fees amount to detailed procedural rules governing actions for safeguarding rights conferred by EU law on candidates and tenderers harmed by decisions of contracting authorities, they must not compromise the effectiveness of Directive 89/665. Similarly, Article 1 of the directive must be interpreted in the light of the fundamental rights set out in the Charter of Fundamental Rights of the European Union, in particular the right to an effective remedy before a court or tribunal, laid down in Article 47 thereof. (see paras 45-47, 49) 4. Article 1 of Directive 89/665 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, and the principles of equivalence and effectiveness must be interpreted as not precluding national legislation which requires the payment of court fees such as a standard fee, determined in proportion to the sum involved in the dispute, when an action relating to public procurement is brought before administrative courts. Where national legislation provides that the court fees to be paid for bringing an action in administrative proceedings relating to public procurement do not exceed 2% of the value of the contract concerned, such fees are not liable to render practically impossible or excessively difficult the exercise of rights conferred by EU public procurement law. In addition, since that standard fee is imposed without distinction, as to its form and its amount, with regard to all individuals intending to bring an action against a decision adopted by contracting authorities, such a system does not give rise to discrimination between operators practising in the same sector of activity. With regard to the principle of equivalence, the fact that, in the context of procedures for the award of public contracts, the standard fee to be paid is larger than (i) the amounts to be paid for administrative disputes subject to ordinary proceedings and (ii) the court fees charged in civil proceedings cannot in itself demonstrate an infringement of that principle. That principle requires that actions based on an infringement of national law and similar actions based on an infringement of EU law be treated equally and not that there be equal treatment of national procedural rules applicable to proceedings of a different nature such as civil proceedings, on the one hand, and administrative proceedings, on the other, or applicable to proceedings falling within two different branches of law. (see paras 58, 62, 63, 66, 67, 79, operative part 1) 5. Article 1 of Directive 89/665 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, and the principles of equivalence and effectiveness do not preclude the charging of multiple court fees to an individual who brings several court actions concerning the same award of a public contract or that individual from having to pay additional court fees in order to be able to raise supplementary pleas concerning the same award of a public contract within ongoing judicial proceedings. However, in the event of objections being raised by a party concerned, it is for the national court to examine the subject matter of the actions submitted by an individual or the pleas raised by that individual within the same proceedings. If the national court finds that the subject matter of those actions is not separate or does not amount to a significant enlargement of the subject matter of the dispute that is already pending, it is required to relieve that individual of the obligation to pay cumulative court fees. The levying of multiple and cumulative court fees within the same administrative judicial proceedings contributes to the proper functioning of the judicial system, since it amounts to a source of financing for the judicial activity of the Member States and discourages the submission of claims which are manifestly unfounded or which seek only to delay the proceedings. Those objectives justify the multiple application of court fees such as those at issue in the main proceedings only where the subject matter of the actions or supplementary pleas are in fact separate and amount to a significant enlargement of the subject matter of the dispute that is already pending. By contrast, if that is not the case, an obligation of additional payment of such court fees because of the submission of such actions or pleas is contrary to the availability of legal remedies ensured by Directive 89/665 and to the principle of effectiveness. (see paras 72-75, 79, operative part 2)