Opinion of the Advocate General — ECLI:EU:C:2009:676
Date: 2009-10-29
Language of the case: English
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

summary of the relevant reasons, and that any limitation periods for applications for review may not expire until a certain number of calendar days after that communication. 45. Merely for the sake of completeness, it may be mentioned that the time when the period starts running for bringing a claim for compensation must not be made to depend on the fact that the applicant knew or ought to have known of the damage incurred by him. (36) The damage that follows from a breach of duty sometimes comes to light only after some delay. Waiting for knowledge of the damage would thus run counter to the principle of review ‘as rapidly as possible’ within the meaning of Article 1(1) of Directive 89/665. In return, however, it must be made possible for the tenderer or candidate concerned, if necessary, first to make an application for a declaration of a breach of procurement law and then to quantify the damage and claim compensation in subsequent proceedings. – The national court’s discretion to grant an extension of the limitation period 46. NHS Business Services, the United Kingdom and Ireland object that effective legal protection does not necessarily require, however, that the limitation periods for seeking remedies in review proceedings run only from the time when the tenderer or candidate concerned knew or ought to have known of the alleged infringement of procurement law. They submit that a provision such as Regulation 47(7)(b) of the PCR 2006 ensures effective legal protection by giving the national court a discretion to extend, if appropriate, the period for bringing proceedings. 47. That argument does not convince me. 48. Article 1(1) in conjunction with Article 1(3) of Directive 89/665 gives any person who has or had an interest in obtaining a particular public contract and who has been or risks being harmed by an alleged infringement an individual right to review of the decisions of the contracting authority. (37) As I explain in the parallel case of Commission v Ireland, the effective assertion of such a claim cannot be made to depend on the discretion of a national body, not even the discretion of an independent court. (38) 49. Regulation 47(7)(b) of the PCR 2006 does not give the national court any legal criteria for the exercise of its discretion as regards a possible extension of time. At the hearing before the Court, all the parties moreover agreed in submitting that the applicant’s lack of knowledge of a breach of procurement law is only one of several aspects which influence the national court’s assessment. Thus lack of knowledge may lead to an extension of the period, but this is not mandatory. Furthermore, the national court may, as Ireland observes, limit an extension of time to specific complaints and refuse it for others, so that an action by the unsuccessful tenderer or candidate may well be only partially admissible. 50. It thus becomes unpredictable for the person concerned in the individual case whether it will be worth his while to claim a legal remedy. Such a legal position may deter unsuccessful tenderers or candidates – especially those from other Member States – from asserting their legal right to review of the decisions of contracting authorities. The objective of effective review, as prescribed by Article 1(1) of Directive 89/665, cannot be achieved with certainty in those circumstances. – Practical problems in determining whether an applicant ‘knows’ or ‘ought to know’ 51. NHS Business Services and the United Kingdom further assert that it will lead to considerable practical problems if a limitation period does not start running until the date on which the unsuccessful tenderer or candidate knew or ought to have known of the alleged breach of procurement law. It is not easy, for example, to assess what the knowledge must relate to in the particular case or at what time it was acquired or from when it must be presumed. 52. It suffices to point out here that the same practical problems also arise if a court, when exercising its discretion as to a possible extension of time, has to consider the time from which the applicant knew or ought to have known of the breach of procurement law he complains of. A provision such as Regulation 47(7)(b) of the PCR 2006 cannot avoid such practical problems; it merely treats them from a different point of view. – The deterrent effect of actions for compensation 53. Ireland also objects that an overgenerous approach to time-limits for bringing actions for compensation may have a highly deterrent effect on contracting authorities (a ‘chilling effect’) and cause considerable delay to award procedures. This submission was adopted at the hearing by NHS Business Services and the United Kingdom. 54. This argument is also unconvincing, however. 55. Successful actions for compensation by unsuccessful tenderers or candidates may undoubtedly entail a substantial financial burden for the contracting authority. This risk is, however, the price to be paid by a contracting authority so that effective legal protection in connection with the award of public contracts can be provided. Any attempt to minimise the attendant financial risks for the contracting authority will necessarily be at the expense of effective legal protection. 56. A too restrictive approach to the conditions for obtaining secondary legal protection would ultimately also jeopardise the achievement of the objectives of the review procedure. Those objectives do not only include the provision of legal protection for the tenderers and candidates concerned. The review procedure is in fact also intended to have a disciplinary effect on contracting authorities, by ensuring that the rules of European procurement law – in particular the requirement of transparency and the prohibition of discrimination – are observed and any infringements penalised. 57. Merely in passing, it may be observed that not even a limitation rule such as Regulation 47(7)(b) of the PCR 2006 is capable of excluding the chilling effect mentioned. As already noted, that provision leaves it in the discretion of the national court to extend the limitation periods for unsuccessful tenderers or candidates, especially where they had no previous knowledge of the alleged infringement of procurement law. This possibility of an extension of time may thus lead to the contracting authority, long after the contract has been concluded with the successful tenderer or candidate, still being exposed to the risk of claims for compensation. Because of the unpredictability of the exercise of judicial discretion, this risk is if anything more difficult for the contracting authority to calculate in the context of Regulation 47(7)(b) of the PCR 2006 than with a rule under which the limitation period starts to run as soon as the person concerned knows or ought to know of the alleged breach of procurement law. B – The national court’s discretion to grant an extension of time (second part of the second question) 58. The second part of the second question is closely connected with the first question. The referring court essentially wishes to know what steps it should take if an unsuccessful tenderer or candidate did not initially know of the alleged breach of procurement law, and was not in a position in which he ought to have known of it, so that he could not make an application for review within the three-month period under Regulation 47(7)(b) of the PCR 2006. 59. According to settled case-law, the courts of the Member States are required to interpret and apply national law consistently with directives. (39) Specifically with respect to procurement review procedures, they must interpret the national provisions laying down a limitation period, as far as is at all possible, in such a way as to ensure observance of the principle of effectiveness deriving from Directive 89/665. (40) 60. As I have explained in connection with the first question, (41) limitation periods for actions for declarations and compensation in connection with public contracts may not start to run until the time when the applicant knew or ought to have known of the alleged breach of procurement law. The referring court must therefore do whatever lies within its jurisdiction to achieve that objective. (42) 61. Consequently, the referring court is required above all to deal with the limitation period under Regulation 47(7)(b) of the PCR 2006, in harmony with the directive, in such a way that in the case of proceedings for declarations and compensation it does not already start to run from the time of the breach of procurement law, but only from the time at which the applicant knew or ought to have known of that breach of procurement law. 62. Should Regulation 47(7)(b) of the PCR 2006 not be amenable to such an interpretation, then the referring court would as an alternative have to look, in the context of its discretion to extend the time-limit, for a solution that was compliant with the directive. The aim of effective review as prescribed by Article 1(1) of Directive 89/665 would then lead to the national court’s discretion being as it were ‘reduced to zero’. It would thus be obliged to grant an extension of time to an applicant such as Uniplex. 63. That extension of time would have to be at least long enough for the applicant to have available for the preparation and submission of his claim, from the point at which he knew or ought to have known of the alleged infringement of procurement law, the three months mentioned in Regulation 47(7)(b) of the PCR 2006. In addition, the national court of course remains free to grant, in the exercise of its discretion, having regard to the circumstances of the individual case, a more generous extension of time, if it considers this necessary in order to arrive at a fair solution. C – The requirement to apply for review promptly (first part of the second question) 64. By the first part of its second question, the referring court wishes essentially to know whether in review proceedings it can dismiss an action as inadmissible if it has not been submitted ‘promptly’. 65. According to the limitation provision in Regulation 47(7)(b) of the PCR 2006, an application for review is only admissible if it is brought ‘promptly and in any event within three months from the date when grounds for the bringing of the proceedings first arose’. This requirement to initiate the review procedure promptly apparently allows the English court, in its discretion, to dismiss applications for review as inadmissible even before the expiry of the three-month period. At the hearing before the Court, the parties to the main proceedings and the United Kingdom Government agreed (43) that in their practice the English courts do in fact make use of this possibility of dismissing an application on the ground of ‘lack of promptness’. (44) 66. The application of a limitation period must not, however, lead to the exercise of the right to review of award decisions being deprived of its practical effectiveness. (45) 67. Article 1(1) of Directive 89/665 requires that it must be possible for decisions of contracting authorities to be reviewed ‘effectively and, in particular, as rapidly as possible’. As I explain in more detail in my Opinion in Case C‑456/08 Commission v Ireland, (46) in order to achieve that aim of the directive the Member States must create a clear legal framework in the field in question. They are obliged to establish a sufficiently precise, clear and transparent legal position, so that individuals can know what their rights and obligations are. 68. For a limitation rule such as Regulation 47(7)(b) of the PCR 2006, the requirements of clarity, precision and predictability apply to a special degree. Lack of clarity with respect to the applicable time-limits is liable, in view of the threat of an action being time-barred, to entail serious harmful consequences for individuals and undertakings. 69. A limitation period such as that under Regulation 47(7)(b) of the PCR 2006, the duration of which is placed at the discretion of the competent court by the criterion ‘promptly’, is not predictable in its effects. The tenderers and candidates concerned are uncertain as to how much time they have to prepare their applications for review properly, and they are scarcely able to estimate the prospects of success of such applications. The objective imposed by Article 1(1) of Directive 89/665 of effective review of decisions taken by the contracting authorities is thereby missed. (47) 70. In consequence, the national courts may not declare an application for review, brought within the three-month period under Regulation 47(7)(b) of the PCR 2006, inadmissible on the ground of ‘lack of promptness’. They are obliged to interpret and apply the provisions of national law in a manner consistent with the directive. (48) With regard specifically to review procedures under procurement law, they must – as already mentioned – interpret the national rules laying down a limitation period, as far as is at all possible, in such a way as to ensure observance of the principle of effectiveness deriving from Directive 89/665. (49) 71. In this connection I may point out that a criterion of promptness need not necessarily be understood in the sense of an independent limitation period. If a provision combines an indication of time expressed in days, weeks, months or years with the word ‘promptly’ or a similar expression, that addition can also be interpreted as emphasising the need for rapid action and reminding applicants of their responsibility, in their own interests, for taking the necessary steps as early as possible, in order best to protect their interests. (50) 72. Against that background, the referring court will have to examine whether the criterion of acting ‘promptly’ in Regulation 47(7)(b) of the PCR 2006 can be interpreted to the effect that it does not constitute an independent barrier to admissibility but merely contains a reference to the need for rapidity. 73. Should it not be possible to interpret Regulation 47(7)(b) of the PCR 2006 to that effect, in compliance with the directive, the national court is obliged to apply Community law to its full extent and to protect the rights it confers on individuals, if necessary by disapplying any provision whose application would in the particular case lead to a result contrary to Community law. (51) VI – Conclusion 74. On the basis of the above considerations, I propose that the Court give the following answers to the reference for a preliminary ruling from the High Court of Justice: (1) Article 1(1) 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 requires that a limitation period for applications for a declaration of an infringement of procurement law and for actions for compensation does not start to run until the time at which the applicant knew or ought to have known of the alleged infringement of procurement law. (2) Article 1(1) of Directive 89/665/EEC precludes a limitation provision which allows the national court in its discretion to dismiss applications for a declaration of an infringement of procurement law and actions for damages as inadmissible by reference to a requirement to bring proceedings promptly. (3) The national court is obliged to do whatever lies within its jurisdiction to achieve a result compatible with the aim of Directive 89/665/EEC. If such a result cannot be achieved by way of interpreting and applying the limitation rule in a manner consistent with the directive, the national court is obliged to leave that rule unapplied. 1 – Original language: German. 2 – High Court of Justice of England and Wales, Queen’s Bench Division, Leeds District Registry. 3 – 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 (OJ 1989 L 395, p. 33). 4 – Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1). 5 – The latest amendments to Directive 89/665 made by Directive 2007/66 are not relevant to the present case, as the period for their transposition lasts until 20 December 2009 (Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (OJ 2007 L 335, p. 31); see in particular Article 3(1)). 6 – The reference in Article 1(1) of Directive 89/665 to Directive 77/62 is to be read as a reference to Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114; corrigendum at OJ 2004 L 351, p. 44). This follows from Article 82(2) of Directive 2004/18 in conjunction with Article 33(2) of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1). 7 – SI 2006 No 5, in force from 31 January 2006. 8 – ‘Uniplex’. 9 – ‘NHS Business Services’. 10 – The award procedure was carried out by an authorised agent of NHS Business Services, known as NHS Supply Chain. 11 – The hearing in the present case took place on the same day as that in Case C‑456/08 Commission v Ireland. 12 – See also my Opinion in Case C‑454/06 pressetextNachrichtenagentur [2008] ECR I‑4401, point 154. In future, however, Article 2c of Directive 89/665, as amended by Directive 2007/66, will define basic Community law requirements for national time-limits for applications for review. 13 – See, for example, Case 33/76 Rewe-Zentralfinanz and Rewe-Zentral [1976] ECR 1989, paragraph 5; Case C‑231/96 Edis [1998] ECR I‑4951, paragraphs 20 and 35; Case C‑30/02 Recheio – Cash & Carry [2004] ECR I‑6051, paragraph 18; and Case C‑40/08 AsturcomTelecomunicaciones [2009] ECR I‑0000, paragraph 41. 14 – See my Opinion in pressetextNachrichtenagentur, cited in footnote 12, point 155. 15 – See on this point Case C‑470/99 Universale-Bau and Others [2002] ECR I‑11617, in particular paragraphs 71 and 76; Case C‑327/00 Santex [2003] ECR I‑1877, paragraph 52; and Case C‑241/06 Lämmerzahl [2007] ECR I‑8415, paragraph 50. 16 – The referring court cites the judgment of the Court of Appeal of England and Wales (Dyson LJ) of 13 July 2001 in JobsinCoUKplc v Department of Health [2001] EWCA Civ 1241, [2001] EuLR 685, paragraphs 23 and 28 (that judgment related to the predecessor to Regulation 47(7)(b) of the PCR 2006, whose content was identical); see also the judgment of the High Court of Justice of England and Wales, Queen’s Bench Division, (Langley J) of 17 November 1997 in KeymedLtd v Forest Healthcare NHSTrust [1998] EuLR 71, at p. 92. 17 – Ireland refers in its written observations to the judgment of the High Court of Ireland (Clarke J) of 2 May 2006 in Veolia Water UK v Fingal County Council (No 1) [2006] IEHC 137, [2007] 1 IR 690, paragraphs 28 to 54. 18 – In Ireland there is an essentially similar rule on limitation periods under Order 84A(4) of the Rules of the Superior Courts (SI No 374 of 1998). That rule is the subject of the action by the Commission for failure to fulfil obligations in Case C‑456/08 Commission v Ireland, in which I am also delivering my Opinion today. 19 – The observations of Dyson LJ in Jobsin Co UK plc v Department of Health, cited in footnote 16, which are quoted in the order for reference, are illuminating in this respect: ‘A service provider’s knowledge is plainly irrelevant to the question whether he has suffered or risks suffering loss or damage as a result of a breach of duty owed to him by a contracting authority. … Knowledge will often be relevant to whether there is good reason for extending time within which proceedings may be brought, but it cannot be relevant to the prior question of when the right of action first arises’ (paragraphs 23 to 28 of the judgment). At the hearing before the Court, the parties were in agreement that the national court is not obliged to grant such an extension of time. 20 – There appear also to be judges in England who differ from this approach. At the hearing before the Court, the judgment of the High Court of Justice of England and Wales, Queen’s Bench Division, (Coulson J) of 8 May 2009 in AmaryllisLtd v HMTreasury [2009] EWHC 962 (TCC) was mentioned in this connection. 21 – See also my Opinion of today’s date in Case C‑456/08 Commission v Ireland, point 56. 22 – See, on this and the following, my Opinion in pressetextNachrichtenagentur, cited in footnote 12, points 161 to 171. 23 – See my Opinion in pressetextNachrichtenagentur, cited in footnote 12, point 162. 24 – See my Opinion in pressetextNachrichtenagentur, cited in footnote 12, points 163 to 167. 25 – If a contract is to be declared invalid, Articles 2d and 2f(1) of Directive 89/665, as amended by Directive 2007/66, are relevant. If, on the other hand, compensation is to be awarded, Articles 2e and 2f(2) in conjunction with Article 2c of Directive 89/665, as amended by Directive 2007/66, apply. 26 – That is also supported by Regulation 47(9) of the PCR 2006. NHS Business Services admittedly points out that in the main proceedings Uniplex made more extensive claims. However, in relation to the factual and legal context of references for preliminary rulings, the Court must proceed from the statements made by the referring court (settled case-law; see Joined Cases C‑482/01 and C‑493/01 Orfanopoulos and Oliveri [2004] ECR I‑5257, paragraph 42, and Case C‑244/06 DynamicMedien [2008] ECR I‑505, paragraph 19). 27 – See my Opinion in pressetextNachrichtenagentur, cited in footnote 12, point 171. 28– Cited in footnote 15, paragraph 78. 29 – This is also clear in the French version of Universale-Bau and Others, French being the language in which the judgment was drafted and deliberated on: dès qu’elles sont connues des intéressés (judgment cited in footnote 15, paragraph 78). 30 – Interestingly, NHS Business Services leaves out precisely this paragraph 78 of the judgment in Universale-Bau and Others, although it otherwise cites the full text of the relevant passage of the Court’s reasoning (paragraphs 74 to 79). 31 – The parties to the main proceedings disagree as to whether Uniplex ought to have known of the alleged infringements of procurement law from the letter of 22 November 2007 or only from the letter of NHS Business Services of 13 December 2007 (see points 12 and 13 above). After reading those two letters, it seems to me that the first of them confines itself to extremely general statements from which an unsuccessful tenderer can hardly work out why he was unsuccessful and whether procurement law was applied correctly. The second letter, on the other hand, contains at least two statements which arouse the suspicion that infringements of procurement law were committed. First, Uniplex is given a zero mark in the category ‘Price and other cost-effectiveness factors’ because it offered only its list price; the contracting authority appears to have completely ignored the fact that one tenderer’s list price may be lower than another’s discount price, and that what ultimately matters is the comparison of the prices actually offered. Second, all tenderers who had not previously been active in the market for haemostats in the United Kingdom were apparently marked at zero in the category ‘UK customer base’, which suggests covert discrimination against tenderers from other countries. In the end, however, it will be the task of the referring court to make the necessary findings in this respect. 32 – Case C‑49/07 MOTOE [2008] ECR I‑4863, paragraph 30, and Case C‑142/05 Mickelsson and Roos [2009] ECR I‑0000, paragraph 41; to the same effect, Case C‑328/91 Thomas and Others [1993] ECR I‑1247, paragraph 13. 33 – The same may apply if a tenderer or candidate complains of a breach of procurement law and his complaint is rejected by the contracting authority with reasons being given. 34 – To that effect, Case 222/86 Heylens and Others [1987] ECR 4097, paragraph 15, and Case C‑75/08 Mellor [2009] ECR I‑0000, paragraph 59; see also my Opinion in Case C‑186/04 Housieaux [2005] ECR I‑3299, point 32, and my Opinion in Mellor, especially point 31. 35 – Opinion of Advocate General Poiares Maduro in Case C‑250/07 Commission v Greece [2009] ECR I‑0000, point 28. 36 – That the term ‘occurrence of the damage’ was used in the first sentence of point 167 of my Opinion in pressetextNachrichtenagentur, cited in footnote 12, is an editing mistake. The correct version is that it suffices that the person concerned knew or ought to have known of the alleged infringement of procurement law, as follows from points 169 and 171 of that Opinion. 37 – To that effect, Case C‑15/04 Koppensteiner [2005] ECR I‑4855, paragraph 38, and Lämmerzahl, cited in footnote 15, second sentence of paragraph 63. 38 – See my Opinion of today’s date in Case C‑456/08 Commission v Ireland, point 75. 39 – On the principle of interpretation in conformity with directives generally, see Case 14/83 von Colson and Kamann [1984] ECR 1891, paragraph 26, Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others [2004] ECR I‑8835, paragraph 113, and Case C‑268/06 Impact [2008] ECR I‑2483, paragraph 98; on Directive 89/665 specifically, see also Santex, paragraph 63, and Lämmerzahl, paragraph 62, both cited in footnote 15. 40 – Santex, cited in footnote 15, paragraph 62. 41 – See points 31 to 46 above. 42 – See Pfeiffer and Others, paragraphs 118 and 119, and Impact, paragraph 101, both cited in footnote 39. 43 – Ireland submitted in the present proceedings for a preliminary ruling that the essentially identical limitation rule in Irish law (in accordance with Order 84A(4) of the Rules of the Superior Courts, an application for review must be made ‘at the earliest opportunity and in any event within three months’) does not produce any such effects. Nevertheless, in the proceedings for failure to fulfil obligations which are being heard in parallel to the present case, Ireland indicated that in certain circumstances an application for review may under Irish law be dismissed as out of time even if it has been made within the three-month period (see on this point my Opinion of today’s date in Case C‑456/08 Commission v Ireland, point 70). 44 – At the hearing before the Court, the parties mentioned in this connection inter alia the judgment of the High Court of Justice of England and Wales, Queen’s Bench Division, (Cooke J) of 4 November 2004 in M Holleran Ltd v Severn Trent Water Ltd [2004] EWHC 2508 (Comm), [2005] EuLR 364. 45 – To that effect, Universale-Bau and Others, in particular paragraph 72, Santex, paragraphs 51 and 57, and Lämmerzahl, paragraphs 52, all cited in footnote 15; on procedural rules generally, see Joined Cases C‑21/03 and C‑34/03 Fabricom [2005] ECR I‑1559, paragraph 42. 46 – See points 47 to 49 of that Opinion, with references to the case-law. 47 – See my Opinion of today’s date in Case C‑456/08 Commission v Ireland, point 71. 48 – See on this point the case-law cited in footnote 39. 49 – Santex, cited in footnote 15, paragraph 62. 50 – See the examples in my Opinion in Case C‑456/08 Commission v Ireland, point 68. In procurement law too, the concept of a ‘duty of diligence, which falls to be categorised more as an obligation as to means than an obligation as to results’, is not unknown (Case C‑250/07 Commission v Greece [2009] ECR I‑0000, paragraph 68). 51 – Case 106/77 Simmenthal [1978] ECR 629, paragraph 24; Santex, cited in footnote 15, paragraph 64; and Lämmerzahl, cited in footnote 15, paragraph 63.