Opinion of the Advocate General — ECLI:EU:C:2021:725
Date: 2021-09-09
Language of the case: Italian
Subject matter: Principles, objectives and tasks of the Treaties;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Italy

summary, therefore, I am of the view that Article 1(1) and (3) of Directive 89/665, read in the light of Article 47 of the Charter must be interpreted as meaning that it does not preclude a rule such as the eighth paragraph of Article 111 of the Italian Constitution, as interpreted in Judgment No 6/2018, according to which an appeal in cassation on grounds of a ‘lack of jurisdiction’ is not available for the purpose of challenging judgments in which the court of second instance has applied interpretative practices developed nationally but which are objectively in conflict with judgments of the Court of Justice, in sectors governed by EU law. 86. The solution in respect of the misapplication of EU law by a court of last instance must be found in other procedural forms, such as an action for failure to fulfil obligations pursuant to Article 258 TFEU or, the possibility of holding the State liable in order to obtain legal protection of the rights recognised by EU law. B. The second question 87. By its second question, the Corte suprema di cassazione (Supreme Court of Cassation) asks, in substance, whether Article 4(3) TEU, Article 19(1) TEU, and Article 267 TFEU, read in the light of Article 47 of the Charter, preclude the rules relating to appeals in cassation for ‘reasons of jurisdiction’ from being interpreted and applied in such a manner that an appeal in cassation before the Combined Chambers of the Supreme Court of Cassation cannot be brought for the purpose of challenging a judgment in which the Consiglio di Stato (Council of State) refrains, without reason, from making a reference to the Court of Justice for a preliminary ruling, where the conditions relieving a national court of that obligation, as listed by the Court in its judgment of 6 October 1982, Cilfit and Others (283/81 EU:C:1982:335), are absent. 88. The idea behind that question is that a national court cannot be prevented, even temporarily, from making a reference for a preliminary ruling, as this would have the effect of usurping the Court’s exclusive jurisdiction to interpret EU law correctly and in binding fashion, thereby undermining the uniform application and effective judicial protection of the rights enjoyed by individuals under EU law. 89. At the outset it might be observed that the Corte di cassazione (Court of Cassation) raises an additional question in the introductory part of the request for a preliminary ruling relating to the second question, which does not appear in the wording of the question finally asked. In fact, it is clear from paragraph 50 of the reference for a preliminary ruling that the Corte suprema di Cassazione (Supreme Court of Cassation), in addition to the question formally posed, also questions the approach whereby it could not itself make a reference for a preliminary ruling directly. 90. Given that this issue is not included in the question finally referred, I will be brief. Moreover, the answer to this question does not seem to me to be in doubt. Indeed, it is settled case-law that Article 267 TFEU gives national courts the widest discretion in referring matters to the Court if they consider that a case pending before them raises questions involving the interpretation of provisions of EU law, or consideration of their validity, which are necessary for the resolution of the case. (49) Consequently, if the Corte suprema di cassazione (Supreme Court of Cassation) is validly seised, national rules of procedure cannot affect the powers and obligations conferred on that court under Article 267 TFEU. (50) 91. That being said, and I come now to the second question expressly referred, I do not think that the national rules of procedure such as the rule at issue which limits the appeal in cassation to questions of jurisdiction must necessarily, in order to be compatible with EU law, be interpreted as allowing an appeal in cassation where a court of first instance or a court against whose decisions there is no judicial remedy under national law, does not refer a question to the Court of Justice. 92. Indeed, since it is for the national courts to apply EU law, the first task of interpretation necessarily falls to them. As previously stated by the Court, national courts, in collaboration with the Court of Justice, fulfil a duty entrusted to them both of ensuring that in the interpretation and application of the Treaties the law is observed. (51) It follows from the judicial system established by the Treaties – and in particular Article 4(3) TEU, Article 19(1) TEU and Article 267 TFEU to which the referring court refers – that the Court does not have a monopoly on the interpretation of EU law but rather has exclusive jurisdiction to give the definitive interpretation of that law. (52) 93. The obligation on national courts and tribunals against whose decision there is no judicial remedy to refer a matter to the Court of Justice under the third paragraph of Article 267 TFEU is based on cooperation, established with a view to ensuring the proper application and uniform interpretation of EU law in all the Member States, between national courts, in their capacity as courts responsible for the application of EU law, and the Court. (53) 94. What Article 267 TFEU enables is thus the opening of a dialogue between the Court of Justice and the courts and tribunals of the Member States. (54) As already recalled in this Opinion, in accordance with settled case-law, this provision gives national courts the widest discretion in referring matters to the Court if they consider that a case pending before them raises questions involving the interpretation of provisions of EU law, or consideration of their validity, which are necessary for the resolution of the case before them. (55) In addition, it must be borne in mind that, under the third paragraph of Article 267 TFEU, when there is no judicial remedy under national law against the decision of a court or tribunal of a Member State, that court or tribunal is, in principle, obliged to bring the matter before the Court of Justice, where a question relating to the interpretation of EU law is raised before it. (56) 95. In this specific context of cooperation established by Article 267 TFEU, what is forbidden is, therefore, for a rule of national law to prevent a national court from exercising that discretion, or from complying with that obligation. (57) In other words, the minimum requirement is that the court designated by the national procedural system to rule on issues related to EU law – such as, in this case, the Tribunali amministrativi regionali (Regional Administrative Courts) and the Consiglio di Stato (Council of State) in the field of public procurement – should have the possibility, if not the obligation, to proceed to a preliminary ruling. If it is the case, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. (58) To summarise, as recently explained by Advocate General Bobek, the logic of the case-law of the Court in this area seeks only to ensure that national rules of procedure do not prevent points of EU law from being raised, with a request for a preliminary ruling potentially being made regardless of the stage of proceedings. (59) 96. However, as will be seen in my analysis of the third question asked by the Corte suprema di cassazione (Supreme Court of Cassation), if it is clear that the Consiglio di Stato (Council of State) should have referred a question to the Court of Justice if it had any a doubt on the scope of application of Article 1(1) and (3) of Directive 89/665 as previously interpreted by the Court, it must be noted that there was nonetheless no national procedural rule preventing it from initiating this dialogue with the Court of Justice. 97. In my view, the failure to refer a question to the Court for a preliminary ruling is therefore likely to result in substantive illegality (due to the misapplication of EU law which was wrongly interpreted by the national court) and/or procedural illegality (due to the failure to refer a question to the Court for a preliminary ruling when the court in question was obliged to do so), but it should not be regarded as a question of jurisdiction in the sense understood by the eighth paragraph of Article 111 of the Italian Constitution. As I indicated at the end of my analysis of the first question referred, even if these solutions are not optimal, the answer to a misapplication of EU law by a court of last instance – and I add here including the obligations under Article 267 TFEU – must be found in other procedural forms, such as an action for failure to fulfil obligations or the possibility of holding the State liable for damages in order to obtain legal protection of the rights of individuals. 98. Indeed, in view of the essential role played by the judiciary in the protection of the rights derived by individuals from the rules of EU law, as I have already indicated, the full effectiveness of those rules would be called into question and the protection of those rights would be weakened if individuals were precluded from being able, under certain conditions, to obtain compensation or damages when their rights are prejudiced by an infringement of EU law attributable to a decision of a court or tribunal of a Member State adjudicating at last instance. (60) 99. Consequently, in accordance with the foregoing considerations, I arrive at the conclusion that Article 4(3) TEU, Article 19(1) TEU, and Article 267 TFEU, read in the light of Article 47 of the Charter, do not preclude the rules relating to appeals in cassation for reasons of jurisdiction from being interpreted and applied in such a manner as to prevent an appeal in cassation before the Combined Chambers of the Corte suprema di cassazione (Supreme Court of Cassation) from being brought for the purpose of challenging a judgment in which the Consiglio di Stato (Council of State) refrains, without reason, from making a reference to the Court of Justice for a preliminary ruling. C. The third question 100. By its third question, the Corte suprema di cassazione (Supreme Court of Cassation) asks, in substance, whether the interpretation of Article 1(1) and (3) and Article 2(1) of Directive 89/665, as amended by Directive 2007/66, which derives from the judgments of the Court of Justice of 4 July 2013, Fastweb (C‑100/12, EU:C:2013:448), of 5 April 2016, PFE (C‑689/13, EU:C:2016:199), and of 5 September 2019, Lombardi (C‑333/18, EU:C:2019:675), applies to the case in the main proceedings. 101. In that regard, according to settled case-law, the justification for making a request for a preliminary ruling is not for advisory opinions to be delivered on general or hypothetical questions, but rather that it is necessary for the effective resolution of a dispute concerning EU law. (61) 102. However, given that I arrived at the conclusion, in relation to the first question referred, that the limitation of the jurisdiction of the Corte di cassazione (Supreme Court of Cassation) as provided for in the eighth paragraph of Article 111 of the Italian Constitution, as interpreted in Judgment No 6/2018, is not contrary to Article 1(1) and (3) of Directive 89/665 and Article 47 of the Charter, the referring court should lack jurisdiction to examine, in the main proceedings, the scope of Directive 89/665. I nonetheless propose to consider this question in the event that the Court were to decide differently. 103. As a reminder, in the main proceedings, Randstad has challenged its exclusion from a tendering procedure and the award of the contract to another undertaking. However, the Consiglio di Stato (Council of State) has examined the substance only of the ground of appeal whereby Randstad disputed the points awarded to its technical offer – which were below the ‘minimum threshold’ – and has examined as a matter of priority the cross-appeals brought by the contracting authority and the successful tenderer. It has upheld those cross-appeals while refraining from examining the substance of the other grounds of the main appeal disputing the outcome of the tendering procedure for other reasons than those relating to the points awarded to its technical offer. 104. I have already set out in the preliminary remarks of this Opinion the case-law of the Court on the scope of the obligation to provide a review procedure laid down in Article 1(1) and (3) of Directive 89/665, in the specific context where a counterclaim is brought by the successful tenderer. At this stage, it can therefore be stated that the criterion which determines the obligation of a court to examine the applicant’s appeal is that each of the parties to the proceedings has a legitimate interest in the exclusion of the bids submitted by the other competitors. That means that one cannot exclude the possibility that one of the irregularities justifying the exclusion of both the successful tenderer’s bid and that of the tenderer challenging the contracting authority’s decision may also vitiate the other bids submitted in the tendering procedure, which may result in that authority having to launch a new procedure. (62) 105. The Court has been particularly clear on this point: ‘the admissibility of the main action cannot, without depriving Directive 89/665 of its effectiveness, be contingent on a prior finding that all of the bids ranked lower than that of the tenderer are invalid [or] subject to the condition that the tenderer adduces evidence that the contracting authority will have to restart the public procurement procedure. The mere existence of such a possibility must be regarded as being sufficient in that respect’. (63) The tenderer whose bid has been excluded by the contracting authority from a public procurement procedure may be refused access to a review of the decision awarding the public contract only if the decision to exclude that tenderer has been confirmed by a decision that has acquired the force of res judicata before the court hearing the review of the contract award decision has given its decision, so that that tenderer must be regarded to be definitively excluded from the public procurement procedure at issue. (64) 106. In the main proceedings, first, it is not disputed that Randstad had not been yet definitively excluded from the procurement process when it lodged its appeal before the Consiglio di Stato (Council of State). Second, it follows from the reference for a preliminary ruling that Randstad put forward, as one of the pleas for its readmission to the tendering procedure, the illegality of the appointment and composition of the procurement committee responsible for carrying out the economic assessment. However, if those irregularities were found to exist, they would justify the exclusion of both the successful tenderer’s bid and that of the tenderer challenging the contracting authority’s decision and would also vitiate the other bids submitted in the tendering procedure, which could lead the contracting authority to have to launch a new procedure. 107. In those circumstances, it seems certain to me that the principle established and confirmed by the case-law cited by the referring court was applicable in the main proceedings. The Consiglio di Stato (Council of State) was therefore obliged to recognise Randstad’s interest in challenging, both at first instance and on appeal, the regularity of the procedure and therefore of the decision to award the contract or, alternatively, to submit a request to the Court of Justice on that matter in case of doubt. VII. Conclusion 108. Accordingly, in the light of the foregoing considerations, I propose that the Court should answer the questions referred by the Corte suprema di cassazione (Supreme Court of Cassation, Italy) as follows: (1) 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, inter alia, by Directive 2007/66/EC of the European Parliament and the Council of 11 December 2007, read in the light of Article 47 of the Charter, must be interpreted as meaning that it does not preclude a rule such as the eighth paragraph of Article 111 of the Italian Constitution, as interpreted in Judgment No 6/2018, according to which an appeal in cassation for reasons of jurisdiction is not available for the purpose of challenging judgments in which the court of second degree has applied interpretative practices developed nationally but in conflict with judgments of the Court of Justice, in sectors governed by EU law. The solution in respect of the misapplication of EU law by a court of last instance must be found in other procedural forms, such as an action for failure to fulfil obligations pursuant to Article 258 TFEU or, the possibility of holding the State liable in order to obtain legal protection of the rights of individuals recognised by EU law. (2) Article 4(3) TEU, Article 19(1) TEU, and Article 267 TFEU, read in the light of Article 47 of the Charter, do not preclude the rules relating to appeals in cassation for reasons of jurisdiction from being interpreted and applied in such a manner as to prevent an appeal in cassation before the Combined Chambers of the Corte di cassazione (Court of Cassation) from being brought for the purpose of challenging a judgment in which the Consiglio di Stato (Council of State) refrains, without reason, from making a reference to the Court of Justice for a preliminary ruling. In the alternative, (3) The interpretation of Article 1(1) and (3) and Article 2(1) of Directive 89/665, as amended by Directive 2007/66, which derives from the judgments of the Court of Justice of 4 July 2013, Fastweb (C‑100/12, EU:C:2013:448); of 5 April 2016, PFE (C‑689/13, EU:C:2016:199); and of 5 September 2019, Lombardi (C‑333/18, EU:C:2019:675), applies to the case of the main proceedings where the decision to exclude the unsuccessful tenderer had not been confirmed by a decision which had acquired the force of res judicata when the court hearing the review of the contract award decision gave its decision and where that tenderer had put forward a plea which could lead the contracting authority to have to launch a new procedure. 1 Original language: English. 2 OJ 1989 L 395, p. 33. 3 OJ 2007 L 335, p. 31. 4 Judgment of 18 January 2018, No 6/2018 (ECLI:IT:COST:2018:6). 5 Judgment No 6/2018, paragraph 15 (in its English translation available on the website of the Corte costituzionale (Constitutional court) (https://www.cortecostituzionale.it/documenti/download/doc/recent_judgments/Sentenza%20n.%206%20del%202018%20red.%20Coraggio%20EN.pdf). 6 See, to that effect, judgments of 4 July 2013, Fastweb (C‑100/12, EU:C:2013:448, paragraph 25); of 5 April 2016, PFE (C‑689/13, EU:C:2016:199, paragraph 23); and of 5 September 2019, Lombardi (C‑333/18, EU:C:2019:675, paragraph 22). 7 See, to that effect, judgments of 5 April 2016, PFE (C‑689/13, EU:C:2016:199, paragraph 27), and of 5 September 2019, Lombardi (C‑333/18, EU:C:2019:675, paragraph 23). 8 See, to that effect, judgments of 4 July 2013, Fastweb (C‑100/12, EU:C:2013:448, paragraph 33); of 5 April 2016, PFE (C‑689/13, EU:C:2016:199, paragraph 24); and of 5 September 2019, Lombardi (C‑333/18, EU:C:2019:675, paragraph 24). 9 See, to that effect, judgments of 5 April 2016, PFE (C‑689/13, EU:C:2016:199, paragraph 29), and of 5 September 2019, Lombardi (C‑333/18, EU:C:2019:675, paragraph 30). 10 See, to that effect, judgment of 5 September 2019, Lombardi (C‑333/18, EU:C:2019:675, paragraph 26). 11 See, to that effect, judgment of 5 September 2019, Lombardi (C‑333/18, EU:C:2019:675, paragraph 28). 12 See, to that effect, judgment of 5 September 2019, Lombardi (C‑333/18, EU:C:2019:675, paragraph 29). 13 See, to that effect, judgments of 5 April 2016, PFE (C‑689/13, EU:C:2016:199, paragraph 28), and of 5 September 2019, Lombardi (C‑333/18, EU:C:2019:675, paragraph 27). 14 See, to that effect, judgment of 5 September 2019, Lombardi (C‑333/18, EU:C:2019:675, paragraph 29). 15 See, to that effect, Ginter, C., Väljaots, T., ‘Excluded Tenderer’s Access to a Review in a Public Procurement Procedure’, European Procurement & Public Private Partnership Law Review, 2018/4, pp. 301 to 306, esp. p. 303. 16 See, in this respect, the caveat set out in point 78 of the present Opinion. 17 See, in that regard, judgment of 5 September 2019, Lombardi (C‑333/18, EU:C:2019:675, paragraphs 13 to 19). 18 See, to that effect, Judgment N 6/2018, paragraph 15 (English version). See the website address in footnote 5 of the present Opinion. 19 Judgment No 6/2018, paragraph 14.1 (English version). See the website address in footnote 5 of the present Opinion. 20 Judgment No 6/2018, paragraph 17 (English version). See the website address in footnote 5 of the present Opinion. 21 See, to that effect, judgment of 2 April 2020, Ruska Federacija(C‑897/19 PPU, EU:C:2020:262, paragraph 43). 22 See, to that effect, judgments of 19 November 2020, 5th AVENUE Products Trading (C‑775/19, EU:C:2020:948, paragraph 34), and of 22 April 2021, PROFI CREDIT Slovakia (C‑485/19, EU:C:2021:313, paragraph 50). 23 See, to that effect, judgment of 15 September 2016, Star Storage and Others (C‑439/14 and C‑488/14, EU:C:2016:688, paragraph 45). 24 Opinion of Advocate General Sharpston in Joined Cases Star Storage and Others(C‑439/14 and C‑488/14, EU:C:2016:307, footnote 32). 25 Judgment of 14 June 2017, Online Games and Others (C‑685/15, EU:C:2017:452, paragraph 54, emphasis added). See also judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions) (C‑824/18, EU:C:2021:153, paragraph 143). 26 Judgment of 27 September 2017, Puškár(C‑73/16, EU:C:2017:725, paragraph 58). Emphasis added. See also, to that effect, judgment of 16 May 2017, Berlioz Investment Fund (C‑682/15, EU:C:2017:373, paragraph 44). 27 Written observations of the Commission, paragraphs 35 and 39. 28 See, to that effect, judgment of 29 July 2019, Hochtief Solutions Magyarországi Fióktelepe(C‑620/17, EU:C:2019:630, paragraph 52). 29 See for example, with regard to Directive 89/665, judgment of 12 March 2015, eVigilo(C‑538/13, EU:C:2015:166, paragraph 39). 30 See, to that effect, judgment of 15 September 2016, Star Storage and Others (C‑439/14 and C‑488/14, EU:C:2016:688, paragraph 46). 31 See, to that effect, in relation to the Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24), judgment of 10 March 2021, PI (C‑648/20 PPU, EU:C:2021:187, paragraph 58). 32 Judgment of 15 April 2008, Impact(C‑268/06, EU:C:2008:223, paragraph 47). See also judgments of 18 March 2010, Alassini and Others (C‑317/08 to C‑320/08, EU:C:2010:146, paragraph 49), and of 14 September 2016, Martínez Andrés and Castrejana López (C‑184/15 and C‑197/15, EU:C:2016:680, paragraph 59). 33 See, to that effect, Opinion of Advocate General Wathelet in Hochtief (C‑300/17, EU:C:2018:405, points 32 to 35). 34 See, to that effect, judgment of 15 September 2016, Star Storage and Others (C‑439/14 and C‑488/14, EU:C:2016:688, paragraph 49). 35 See, to that effect, judgments of 19 June 2018, Gnandi(C‑181/16, EU:C:2018:465, paragraph 57), and of 26 September 2018, Belastingdienst/Toeslagen (Suspensory effect of the appeal) (C‑175/17, EU:C:2018:776, paragraph 34). It may also added that to date the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’), does not create or require the existence of a right to a second level of jurisdiction either, at least in civil matters. 36 See, to that effect, judgments of 17 July 2014, Sánchez Morcillo and Abril García (C‑169/14, EU:C:2014:2099, paragraph 36); of 11 March 2015, Oberto and O’Leary (C‑464/13 and C‑465/13, EU:C:2015:163, paragraph 73); of 19 June 2018, Gnandi(C‑181/16, EU:C:2018:465, paragraph 57); of 26 September 2018, Belastingdienst/Toeslagen (Suspensory effect of the appeal) (C‑175/17, EU:C:2018:776, paragraph 34); and of 29 July 2019, Bayerische Motoren Werke and Freistaat Sachsen v Commission (C‑654/17 P, EU:C:2019:634, paragraph 51). 37 See, to that effect (with reference to the principles of effectiveness and equivalence rather than Article 47 of the Charter), judgment of 17 March 2016, Bensada Benallal (C‑161/15, EU:C:2016:175, paragraph 27). 38 On this requirement, see judgment of 5 September 2019, Lombardi (C‑333/18, EU:C:2019:675, paragraph 33). 39 See, to that effect (in relation to a good conduct guarantee), judgment of 15 September 2016, Star Storage and Others (C‑439/14 and C‑488/14, EU:C:2016:688, paragraph 54). In that regard, it should be recalled that the Court interprets Article 1(1) and (3) of Directive 89/665 as requiring the Member States to adopt the measures necessary to ensure that the decisions taken by the contracting authorities in public contract award procedures may be reviewed effectively and, in particular, as rapidly as possible, on the ground that they have infringed EU law on public procurement or the national rules transposing that law (see, to that effect, judgments of 12 March 2015, eVigilo, C‑538/13, EU:C:2015:166, paragraph 50; of 15 September 2016, Star Storage and Others, C‑439/14 and C‑488/14, EU:C:2016:688, paragraph 39; and of 29 July 2019, Hochtief Solutions Magyarországi Fióktelepe, C‑620/17, EU:C:2019:630, paragraph 50). 40 See, to that effect (on Articles 6 and 13 ECHR), Varga, Z., ‘National Remedies in the Case of Violation of EU Law by Member State Courts’, CML Rev., 2017, vol. 54, pp. 52 to 80, esp. p. 75. 41 See, to that effect, judgment of 4 October 2018, Commission v France (Advance payment) (C‑416/17, EU:C:2018:811). 42 Judgment of 19 November 1991, Francovich and Others (C‑6/90 and C‑9/90, EU:C:1991:428). 43 See, to that effect, judgments of 4 March 2020, Telecom Italia (C‑34/19, EU:C:2020:148, paragraphs 67 to 69), and judgment of 29 July 2019, Hochtief Solutions Magyarországi Fióktelepe (C‑620/17, EU:C:2019:630, paragraph 64). 44 Judgment in Brasserie du pêcheur and Factortame (paragraph 55). 45 See, to that effect, judgments of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513, paragraph 56), and of 25 November 2010, Fuß(C‑429/09, EU:C:2010:717, paragraph 52). 46 ‘The Adventure of the Silver Blaze’ in Conan Doyle, A., The Memoirs of Sherlock Holmes, London, 1892. 47 See, generally, Beutler, B., ‘State Liability for Breaches of Community Law by National Courts: Is the Requirement of a Manifest Infringement of the Applicable Law an Insurmountable Obstacle?’, CML Rev. 46, 2009, pp. 773 to 787. 48 See, to that effect, judgment of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513, paragraph 53). 49 See, to that effect and among others, judgments of 16 December 2008, Cartesio(C‑210/06, EU:C:2008:723, paragraph 88); of 15 January 2013, Križan and Others (C‑416/10, EU:C:2013:8, paragraph 64); and of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions) (C‑824/18, EU:C:2021:153, paragraph 91 and the case-law cited). 50 See, to that effect, judgment of 18 July 2013, Consiglio Nazionale dei Geologi (C‑136/12, EU:C:2013:489, paragraph 32). The fact that both the Consiglio di Stato (Council of State) and the Corte di cassazione (Court of Cassation) could be regarded as being obliged to make a reference to the Court under the third paragraph of Article 267 TFEU in the same litigation is not an issue. On the contrary, in that situation, if no reference has been made to the Court of Justice by a court such as the Consiglio di Stato (Council of State), then a court such as the Combined Chambers of the Corte di cassazione (Court of Cassation) must itself submit the question to the Court of Justice (see, to that effect, in a context where two courts are likely to be obliged to make a reference to the Court of Justice, judgment of 4 November 1997, Parfums Christian Dior, C‑337/95, EU:C:1997:517, paragraph 30). 51 See, to that effect, Opinion 1/09 (Agreement creating a Unified Patent Litigation System) of 8 March 2011 (EU:C:2011:123, paragraph 69), and judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117, paragraph 33). 52 See, to that effect, Opinion 1/17 of 30 April 2019 (EU:C:2019:341, paragraph 111). 53 See, to that effect, judgments of 6 October 1982, Cilfit and Others (283/81, EU:C:1982:335, paragraph 7), and of 9 September 2015, X and van Dijk (C‑72/14 and C‑197/14, EU:C:2015:564, paragraph 54). 54 See, to that effect, judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions) (C‑824/18, EU:C:2021:153, paragraph 90). 55 See the case-law cited in footnote 49. 56 See, to that effect, judgment of 24 October 2018, XC and Others (C‑234/17, EU:C:2018:853, paragraph 43). See also, under another formulation, judgments of 5 April 2016, PFE (C‑689/13, EU:C:2016:199, paragraph 32); and of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions) (C‑824/18, EU:C:2021:153, paragraph 92). 57 See, to that effect, judgments of 5 April 2016, PFE (C‑689/13, EU:C:2016:199, paragraphs 32 and 33), and of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions) (C‑824/18, EU:C:2021:153, paragraph 93). 58 See, to that effect, judgment of 9 September 2015, X and van Dijk (C‑72/14 and C‑197/14, EU:C:2015:564, paragraph 57). 59 See, to that effect, Opinion of Advocate General Bobek in Consorzio Italian Management and Catania Multiservizi(C‑561/19, EU:C:2021:291, point 27). 60 See, to that effect, judgments of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513, paragraph 33), and of 9 September 2015, Ferreira da Silva e Brito and Others (C‑160/14, EU:C:2015:565, paragraph 47). 61 See, to that effect, judgment of 3 October 2019, A and Others (C‑70/18, EU:C:2019:823, paragraph 73). 62 See, to that effect, judgments of 5 April 2016, PFE (C‑689/13, EU:C:2016:199, paragraph 28), and of 5 September 2019, Lombardi (C‑333/18, EU:C:2019:675, paragraph 27). 63 Judgment of 5 September 2019, Lombardi (C‑333/18, EU:C:2019:675, paragraph 29). Emphasis added. 64 See, to that effect, judgment of 5 September 2019, Lombardi (C‑333/18, EU:C:2019:675, paragraph 31 and the case-law cited).