Opinion of the Advocate General — ECLI:EU:C:2016:307
Date: 2016-04-28
Language of the case: Romanian
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary — Judgment of the Court (Third Chamber), 15 September 2016 1. Approximation of laws — Review procedures in respect of the award of public supply and public works contracts — Directives 89/665 and 92/13 — Member States’ duty to provide for a review procedure — Access to review procedures — Detailed procedural rules — Member States’ discretion — Limits — Obligation to ensure respect for the right to an effective remedy and to a fair hearing (Charter of Fundamental Rights of the European Union, Art. 47; Council Directives 89/665, as amended by Directive 2007/66, Art. 1(1) and (3) and 92/13, as amended by Directive 2007/66, Art. 1(1) and (3)) 2. Approximation of laws — Review procedures in respect of the award of public supply and public works contracts — Directives 89/665 and 92/13 — Member States’ duty to provide for a review procedure — Access to review procedures — National legislation making the admissibility of the action subject to the provision of a refundable good conduct guarantee in order to discourage frivolous challenges — Lawfulness — Conditions — Observance of the principle of proportionality (Charter of Fundamental Rights of the European Union, Arts 47 and 52(1); Council Directives 89/665, as amended by Directives 2007/66, Art. 1(1) to (3) and 92/13, as amended by Directive 2007/66, Art. 1(1) to (3)) 1. Article 1(1) and (3) 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 Article 1(1) to (3) of Directive 92/13 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, which are intended to protect tenderers against arbitrary behaviour on the part of the contracting authority, are thus designed to reinforce the existence, in all Member States, of effective remedies, so as to ensure the effective application of the EU rules on the award of public contracts, in particular where infringements can still be rectified. However, neither Directive 89/665 nor Directive 92/13 contains any provisions specifically governing the conditions under which those review procedures may be used. Those directives lay down only the minimum conditions which the review procedures under domestic law must satisfy in order to comply with EU public procurement law. However, the detailed procedural rules governing the remedies intended to protect rights conferred by EU law on candidates and tenderers harmed by decisions of contracting authorities must not compromise the effectiveness of Directives 89/665 and 92/13, the objective of which is to ensure that decisions taken unlawfully by contracting authorities may be reviewed effectively and as rapidly as possible. In particular, care must be taken to ensure that the effectiveness of Directives 89/665 and 92/13 are not undermined or the rights conferred on individuals by EU law. Furthermore, it must be recalled, as is clear from recital 36 of Directive 2007/66 amending Directives 89/665 and 92/13 with regard to improving the effectiveness of review procedures concerning the award of public contracts, and therefore Directives 89/665 and 92/13 that it amended and supplemented, that they seek to ensure full respect for the right to an effective remedy and to a fair hearing, in accordance with the first and second paragraphs of Article 47 of the Charter. Accordingly, when they set out detailed procedural rules for legal actions intended to ensure the protection of rights conferred by Directives 89/665 and 92/13 on candidates and tenderers harmed by the decisions of contracting authorities, the Member States must ensure compliance with the right to an effective remedy and to a fair hearing, enshrined in Article 47 of the Charter. (see paras 41-46) 2. Article 1(1) to (3) 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 Article 1(1) to (3) of Directive 92/13 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, and read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding national legislation which makes the admissibility of any action against an act of the contracting authority subject to the obligation for the applicant to constitute a good conduct guarantee that it provides to the contracting authority, if that guarantee must be refunded to the applicant whatever the outcome of the action. Although the good conduct guarantee constitutes as a pre-condition to having the action examined, a limitation on the right to an effective remedy before a tribunal within the meaning of Article 47 of the Charter, it is clearly and precisely defined by the law and does not undermine the fundamental content of the right to an effective remedy since, in any event, that guarantee, cannot be kept by the contracting authority, whatever the outcome of the action. Furthermore, it pursues a legitimate objective in so far as it is a measure liable to discourage frivolous challenges and ensure that all individuals have their actions dealt with as rapidly as possible, in the interest of the proper administration of justice, in accordance with Article 47, first and second paragraphs, of the Charter. Finally, it retains a reasonable relationship of proportionality between the means employed and the legitimate aim sought to be achieved. The obligation to provide a good conduct guarantee is able to achieve the objective of combating frivolous actions pursued because it involves a financial burden for the applicant, whether he makes a bank transfer or gives a bank guarantee. Mobilising a sum of that amount by bank transfer, like the requirement to take the steps necessary to constitute a bank guarantee and pay the fees relating to it, are such as to encourage applicants to carefully consider bringing an action. Furthermore, in so far as it undermines the applicant’s resources or, at least, its ability to obtain credit until that guarantee is refunded, the good conduct guarantee is of such a nature that it encourages applicants to act prudently in the proceedings they bring, consistent with the requirement in Article 1(1) of Directive 89/665 and Article 1(1) of Directive 92/13 that procedure be conducted as rapidly as possible. Moreover, as the automatic and unconditional retention of the good conduct guarantee by the contracting authority and its payment upon the first request are no longer possible, it cannot be held that the obligation to constitute that guarantee in itself, as a condition for the admissibility of all actions, goes beyond what is necessary to achieve the objective of combating improper actions that it pursues. The good conduct guarantee of 1% of the value of the public contract, limited in accordance with the type of contract remains modest, in particular for tenderers which must normally demonstrate a certain financial capacity. Next, that guarantee may, in any event, be constituted in the form of a bank guarantee. Finally, it has to be constituted only for the period between the filing of the application and final judgment. (see paras 49, 50, 54-57, 59-61, 63, operative part)