Opinion of the Advocate General — ECLI:EU:C:2026:381
Date: 2026-05-07
Language of the case: Portuguese

summary documentary evidence. 
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3. The automatic suspensive effect shall be provisionally lifted when the 
court summarily verifies, within a maximum period of 48 hours, that the 
following cumulative conditions are met: 
(a) the period of 10 working days from the notification of the award decision 
to all tenderers has expired; 
(b) there is a risk of loss of funding in a contract intended for the 
performance of a project financed or co-financed by European funds. 
4. For the purposes of point (b) of the preceding paragraph, there is a 
presumed risk of loss of funding when there is a connection between the 
subject matter of the contract and the performance of projects financed or 
co-financed by European funds; for that purpose, it is sufficient for the 
applicant to attach a document proving the decision to finance the project in 
which the contract is included. 
5. In the event that the suspensive effect is provisionally lifted, the applicant 
shall be notified immediately and shall have a period of five days to request, 
on a reasoned basis, that the automatic suspensive effect be maintained until 
the proceedings are concluded, on the ground that the requirements referred 
to in paragraph 3 have not been met. 
6. If the applicant requests that the automatic suspensive effect be 
maintained, the defendant shall be invited, within seven days, to supplement 
the grounds of the request already made pursuant to paragraph 2, so as to 
include in it a weighing up of the public and private interests at stake and 
the damage that would result from maintaining the suspensive effect. 
7. The applicant shall have seven days to respond to the request that the 
suspensive effect be lifted referred to in the preceding paragraph, followed, 
without further pleadings and no later than seven days after the completion 
of the absolutely essential measures of inquiry, by the judge’s ruling on the 
proceedings. 
8. The suspensive effect shall be lifted when, having duly weighed up all the 
public and private interests at stake, the damage that would result from 
maintaining it is shown to be greater than that which could result from 
lifting it. 
9. The present regime shall apply to contracts formed under the procedural 
rules provided for in this law, and the procedural rules resulting from the 
Código dos Contratos Públicos (Public Contracts Code), and to contracts 
formed in accordance with other legislation on public procurement. 
10. Articles 100 to 103-B of the Código de Processo nos Tribunais 
Administrativos (Code of Procedure of the Administrative Courts) shall 
apply in all matters not provided for in the preceding paragraphs.’ 
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IV.B – Relevant provisions of EU law 
1. Article 2d of Directive 2007/66/EC of the European Parliament and of 
the Council of 11 December 2007 
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V. – Reasons for uncertainty as to the interpretation of EU law 
1. The need to submit the present request lies in the doubt raised by the 
interpretation proposed by the applicant, according to which Article 2d of 
Directive 2007/66/EC of the European Parliament and of the Council of 
11 December 2007 might preclude the solution adopted by the national legislature 
in the aforementioned provision of Law No 30/2021 of 21 May. 
2. Article 25-A of Law No 30/2021 of 21 May, as amended by Law 
No 43/2024 of 2 December, is worded as reproduced above. 
3. Therefore, the rule in question provides for a ‘provisional lifting’ of the 
automatic suspensive effect, carried out in the framework of proceedings 
concerning pre-contractual matters, without hearing the opposing party and 
without any assessment of the merits of the claim. 
4. That rule seeks to guarantee the timely performance of projects and works 
financed by European funds of all kinds, speeding up the lifting of the automatic 
suspensive effect, without having to comply with all the formalities imposed by 
Article 103-A of the Code of Procedure of the Administrative Courts. 
5. That latter provision requires not only respect for the adversarial process, but 
also a merit-based assessment, as regards the weighing up of the interests at stake, 
to be carried out by the court. 
6. Thus, the question that immediately arises for this court is the appropriate 
interpretation of Article 2d of the so-called ‘Remedies Directive’ in the area of 
public procurement, namely whether or not that directive allows the adoption of 
‘simplified’ proceedings for lifting the suspensive effect, and only in order to 
safeguard European funding. 
7. In fact, it appears from the rules set out in paragraph 2 et seq. of Article 2d 
that national law can only provide for the maintenance of the effects of the 
contract after an ‘independent review’ and after analysing the overriding reasons 
relating to a general interest that are put forward. 
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8. In other words, there seems to be an express requirement for, on the one 
hand, prior inter partes proceedings and, on the other, an assessment of the merits 
by the competent judicial body. 
9. It will, therefore, be of real importance for the decision to be handed down 
in this case to know whether, in this specific situation, the automatic suspensive 
effect can be lifted in a way that is less demanding than that provided for by 
general legislation, without prior inter partes proceedings and without any 
assessment of the merits, for the sole reason of safeguarding the timely 
performance of projects financed by European funds. 
10. To date, this court is not aware of any decision by the Court of Justice on the 
compatibility of national legislation with these rules. 
11. In the light of what has been stated in the preceding paragraphs, this court 
considers that it cannot be said that there is a clear and unequivocal earlier ruling 
that would make it possible to dispense with the submission of a request for a 
preliminary ruling on the questions set out. 
12. It is on these grounds that this court makes this request for a preliminary 
ruling. 
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VII – Other information 
1. These proceedings are urgent under national law. 
2. There are other disputes on the same subject, in so far as many projects 
financed by relevant European funds (namely PRR – Portugal 2030, among 
others) are being carried out by the Portuguese State, which is why the need for 
this request has also arisen. 
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Questions referred to the Court for a preliminary ruling 
In the light of the foregoing, the following questions are referred to the […] Court 
of Justice of the European Union for a preliminary ruling under Article 267 of the 
Treaty on the Functioning of the European Union: 
(i) Does the provisional lifting of the automatic suspensive effect, without 
hearing the opposing party, enshrined in Article 25-A(2) and (3) of Law 
No 30/2021 of 21 May, as amended by Law No 43/202[4] of 2 December, 
comply with Article 2d of Directive […] 2007/66/EC of the [European] 
Parliament and of the Council […] of 11 December 2007, when the latter is 
interpreted as meaning that the lifting of such an effect always depends on 
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hearing the opposing party and a prior merit-based assessment of all aspects 
for the purposes of the decision to be taken? 
(ii) Must Article 2d of that directive be interpreted as not precluding national 
legislation that makes the economic interest in a possible loss of European 
funds, on account of a delay in the implementation of a funded project, an 
overriding reason relating to the general interest justifying the lifting of 
automatic suspensive effect? Is a mere economic loss a disproportionate 
consequence, taking into account the interests intended to be safeguarded by 
the operation of the automatic suspensive effect, compatible with the 
provisions of the second subparagraph of Article 2d(3)? 
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Oporto, 11 March 2025 
Judge, 
[…] [Signature]