Judgment;Summary — ECLI:EU:C:2022:128
Date: 2022-02-24
Language of the case: Romanian
Court formation: Ninth Chamber
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary C-532/20 – 1 
Case C-532/20 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
20 October 2020 
Referring court: 
Curtea de Apel Bucureşti (Romania) 
Date of the decision to refer: 
12 June 2020 
Appellant: 
Alstom Transport SA 
Respondents: 
Compania Naţională de Căi Ferate CFR SA 
Strabag AG – Sucursala Bucureşti 
Swietelsky AG Linz – Sucursala Bucureşti 
  
Subject matter of the main proceedings 
Appeal against the judgment of 8 August 2019 of the Tribunalul București 
(District Court, Bucharest), dismissing as out of time the appellant’s application 
for review of a public procurement decision. 
Subject matter and legal basis of the request for a preliminary ruling 
Pursuant to Article 267 TFEU, interpretation is sought of the third subparagraph 
of Article 1(1), Article 1(3) and Article 2c of Directive 92/13. 
EN 
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Question referred for a preliminary ruling 
Are the third subparagraph of Article 1(1), Article 1(3) and Article 2c of Council 
Directive 92/13/EEC of 25 February 1992 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 to be interpreted as meaning that the period within 
which the successful tenderer in an award procedure may apply for review of the 
decision of the contracting authority declaring admissible the bid submitted by a 
tenderer placed lower in the ranking must be calculated by reference to the date on 
which the interest of the successful tenderer arose, that is, upon the lodging by the 
unsuccessful tenderer of an action against the outcome of the award procedure? 
Provisions of EU law and case-law of the Court relied on 
Council Directive 92/13/EEC of 25 February 1992 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, Article 1(1), third 
subparagraph, Article 1(3) and Article 2c; 
Judgments of 15 September 2005, Intermodal Transports, C-495/03, 
EU:C:2005:552, paragraph 37; of 6 October 1982, Cilfit and Others, 283/81, 
EU:C:1982:335, paragraph 16; of 12 December 2002, Universale-Bau and Others, 
C-470/99, EU:C:2002:746; of 28 January 2010, Uniplex (UK), C-406/08, 
EU:C:2010:45, paragraph 32; of 8 May 2014, Idrodinamica Spurgo Velox and 
Others, C-161/13, EU:C:2014:307, paragraph 37; of 15 September 2016, Star 
Storage and Others, C-439/14 and C-488/14, EU:C:2016:688, paragraphs 43 to 
45; and of 12 March 2015, eVigilo, C-538/13, EU:C:2015:166, paragraph 52; 
order of 14 February 2019, Cooperativa Animazione Valdocco, C-54/18, 
EU:C:2019:118, paragraph 29 et seq. 
Provisions of national law relied on 
Legea nr. 101/2016 privind remediile și căile de atac în materie de atribuire a 
contractelor de achiziție publică, a contractelor sectoriale și a contractelor de 
concesiune de lucrări și concesiune de servicii, precum și pentru organizarea și 
funcționarea Consiliului Național de Soluționare a Contestațiilor (Law 
No 101/2016 on remedies and review procedures relating to the award of public 
procurement contracts, sector-specific contracts and works and services 
concession contracts and on the organisation and operation of the National 
Council for the Resolution of Complaints; ‘Law No 101/2016’). 
Article 2(1) of that law provides that ‘any persons who consider that their rights or 
legitimate interests have been infringed by an act of a contracting authority … 
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shall be entitled to seek the annulment of that act … in administrative or judicial 
proceedings in accordance with the provisions of this law’. 
Article 3(1)(f) of Law No 101/2016 provides that, for the purposes of that law, the 
expression ‘persons who consider that their rights or legitimate interests have been 
infringed’ means ‘any economic operators that satisfy the following cumulative 
conditions: 
(i) they have or have had an interest in an award procedure; and 
(ii) they have suffered, are suffering or risk suffering harm as a result of an act 
of a contracting authority capable of producing legal effects …’. 
Article 3(3) of that law provides that, ‘for the purposes of paragraph 1(f)(i), 
persons shall be deemed to have or to have had an interest in an award procedure 
if they have not yet been definitively excluded from that procedure. Exclusion 
shall be definitive if it has been communicated to the candidate/tenderer in 
question and if it has been found lawful by the [National Council for the 
Resolution of Complaints]/court or if it can no longer be the subject of a review 
procedure’. 
In accordance with Article 8(1)(a) of Law No 101/2016, persons who consider 
that their rights or legitimate interests have been infringed as a result of an act of a 
contracting authority may apply to the National Council for the Resolution of 
Complaints for the annulment of the act of the contracting authority within a 
period of 10 days beginning on the day following the day on which they became 
aware of the act of the contracting authority which they regard as unlawful. 
Article 49(1) of Law No 101/2016 provides that ‘persons who consider that their 
rights or legitimate interests have been infringed may apply to the competent 
court, in accordance with the provisions of this law, so that the complaint may be 
resolved in judicial proceedings’. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The respondent, Compania Națională de Căi Ferate CFR SA (‘CFR’), in its 
capacity as contracting authority, organised a sector-specific, public procurement 
procedure for the award of a works contract for the renovation of a railway line, to 
be funded by way of a Grant Agreement under the Connecting Europe Facility 
(CEF) – Transport sector. 
2 To that end, on 6 December 2016, CFR published a call for tenders. The estimated 
value of the contract was 3 190 570 000 Romanian Lei (RON) and the award 
criterion was ‘the lowest price’. Asocierea RailWorks (‘RailWorks’), which is 
headed by the appellant, and Asocierea BraSig (‘BraSig’), to which the 
respondent companies belong, submitted bids in the award procedure. 
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3 Initially, on 13 March 2018, CFR declared the bid submitted by RailWorks to be 
admissible and placed it in first position. Subsequently, however, on 5 July 2018, 
CFR excluded the bid, on the ground that it failed to satisfy certain requirements 
imposed in the award procedure. BraSig’s bid was selected. A legal action was 
brought challenging CFR’s decision to exclude RailWorks’ bid and the acts 
designating BraSig as the successful tenderer, all of which were annulled by final 
judgment of the Curtea de Apel București (Court of Appeal, Bucharest) of 
20 December 2018. 
4 Later, following that judgment, on 12 February 2019, RailWorks’ bid was 
declared admissible. Following a fresh evaluation of the bids submitted, 
RailWorks was informed, by letter of 19 June 2019, that its bid had been selected. 
Nothing was said in that letter regarding the way in which BraSig’s bid had been 
evaluated. 
5 On 20 June 2019, the appellant requested access to the procurement documents, so 
that it might examine and make copies of the relevant documents concerning the 
way in which BraSig’s bid had been evaluated. Upon examining those documents, 
the appellant learned, on 25 June 2019, that BraSig’s bid had been declared 
admissible and as meeting requirements. 
6 BraSig was informed that its bid had been declared admissible but had not been 
selected, whereupon it brought an action challenging the outcome of the award 
procedure. 
7 On 5 July 2019, the appellant brought an action before the Tribunalul București 
(District Court, Bucharest) (‘the Tribunalul’), seeking, inter alia, the annulment of 
CFR’s decision declaring BraSig’s bid admissible and as meeting requirements, 
the annulment of the report on the award procedure and of all the documents 
relating to that procedure whereby BraSig’s bid was considered admissible and as 
meeting requirements, and a finding that that bid was inadmissible. 
8 By judgment of 8 August 2019, the Tribunalul dismissed that action on the ground 
that it had been brought out of time. The Tribunalul held that the period of 10 days 
laid down in Article 8(1)(a) of Law No 101/2016 had to be calculated starting 
from the date on which the appellant was informed of the outcome of the award 
procedure, not from the date on which the appellant actually became aware of the 
report on the award procedure and of the way in which the bid submitted by 
BraSig had been evaluated. 
9 The appellant brought an appeal against that judgment before the referring court, 
arguing that the court of first instance had interpreted and applied the law 
incorrectly. 
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Essential arguments of the parties in the main proceedings 
10 The appellant refers to the case-law of the Court of Justice relating to Article 2c 
of Directive 92/13 and maintains that the limitation period for applying for review 
starts to run from the ‘time when the persons concerned became aware of the 
existence of an infringement’. Therefore, the question of whether the action was 
brought out of time must be examined with reference to the time when the 
appellant actually became aware of the existence of the act whereby BraSig’s bid 
was declared admissible. 
11 The appellant emphasises in this connection that the letter concerning the outcome 
of the award procedure had not provided it with any information regarding the 
way in which BraSig’s bid had been evaluated. It had requested access to the 
public procurement file, so that it might examine and make copies of the relevant 
documents concerning the way in which BraSig’s bid had been evaluated, on the 
day immediately following the day on which it received notification of the 
outcome. Upon examining those documents, it had learned, for the first time, on 
25 June 2019, that BraSig’s bid had been considered admissible and as meeting 
requirements. The application had been lodged within the time limit of 10 days 
from the date on which it became aware of the act it considers unlawful. 
12 The appellant sets out at length the abovementioned case-law of the Court of 
Justice relating to the point from which the limitation period for bringing an action 
seeking a declaration that there has been infringement of the rules governing the 
award of public procurement contracts starts to run. It follows from that case-law, 
in essence, that that limitation period starts to run from the date on which the 
complainant became aware or should have become aware of the supposed 
infringement of those rules. In this connection, the appellant reproduces a 
significant part (paragraph 29 et seq.) of the order of 14 February 2019, 
Cooperativa Animazione Valdocco, C-54/18, EU:C:2019:118. 
13 On the basis of that case-law, given that (i) the subject of its action is an 
irregularity that was recorded only in the report on the award procedure, which 
was neither communicated nor published, (ii) it asked for access to the 
procurement documents the day after receiving the communication about the 
outcome of the procedure, and (iii) it brought its action within the legal period 
beginning at the time when it became aware of the harmful act, the appellant 
maintains that the provisions of EU law on which it relies, as interpreted by the 
Court of Justice, preclude the dismissal of its action on the ground that it was 
brought out of time. 
14 The appellant also addresses the question of the need to ensure that review 
procedures are available to successful tenderers and maintains that, in accordance 
with Article 1(3) of Directive 92/13, review procedures must be made available to 
any person having an interest in obtaining a particular contract who risks being 
harmed by an alleged infringement. 
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15 According to the appellant, it satisfies the two conditions imposed by those 
provisions. On the one hand, it has an interest in the award procedure, inasmuch 
as, at the time of lodging its application, its interest consisted in preserving its 
right to sign the contract which was the subject of the award and, on the other, it 
risks being harmed by the error which CFR made when it evaluated BraSig’s bid a 
second time, in that it deemed admissible a bid that did not meet the requirements 
and was not admissible. The risk of harm need not be current, but may be a future 
risk, since the applicable provisions do not require that the risk should already 
have materialised. 
16 In the appellant’s view, the successful tenderer is entitled to dispute a bid that has 
been declared admissible but has not been selected, regardless of whether it is 
aware of the lodging of an action challenging its own bid, since the only exception 
to the rule establishing an interest is where the tenderer has been definitively 
excluded from the award procedure, as is provided for in Article 2a of Directive 
92/13. That, however, is not the case for the appellant. 
17 As regards the interest in bringing proceedings concerning public procurement, 
the appellant reproduces the case-law of the Court of Justice on the subject and 
maintains that even a tenderer whose bid is selected must be guaranteed the right 
to challenge a bid that has been declared admissible but has not been selected 
solely because of the application of the ‘lowest price’ award criterion. If the 
applicable legal provisions were interpreted otherwise, the successful tenderer 
would be unable to challenge a bid declared admissible but not selected, even if it 
is affected by a series of irregularities and might subsequently be selected. Such 
reasoning would be directly contrary to the provisions of EU law which clearly 
establish the need to ensure that decisions of a contracting authority may be 
challenged by any person who can demonstrate an interest. 
18 In conclusion, the appellant asserts that, in a situation such as that in the main 
proceedings, the third subparagraph of Article 1(1), Article 1(3) and Article 2c of 
Directive 92/13 preclude the dismissal of an action brought by a successful 
tenderer to challenge a decision declaring admissible a bid that has not been 
selected, on the ground that that action has been brought out of time. 
19 The respondents have made no observations regarding the issues raised. 
Succinct presentation of the grounds for the reference for a preliminary 
ruling 
20 The referring court states that the legal issue that must be resolved in the appeal 
that has been brought before it concerns the lawfulness of the judgment of the 
court of first instance dismissing the appellant’s action on the ground that it was 
brought out of time. 
21 To that end, it is necessary to determine the date on which the 10-day period laid 
down in Article 8(1) of Law No 101/2016 starts to run. In addition, it will be 
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necessary to establish whether, in light of the right to an effective remedy, 
provided for by Article 1(1) of Directive 92/13 and afforded to the persons 
referred to in Article 1(3) of that directive, the interest of the successful tenderer 
in the award procedure in bringing an action challenging the outcome of the 
procedure arises precisely at the time when that tenderer becomes aware of the 
outcome of the procedure. 
22 Article 2c of the directive establishes that the date on which the period that the 
Member States may specify for bringing an application for review of an act of a 
contracting authority starts to run must be the day following the date on which the 
contracting entity’s decision is sent to the tenderer or candidate concerned. The 
wording of the EU law thus refers to the tenderer or candidate concerned. 1 On the 
one hand, the interest of the tenderer or candidate in the public procurement 
procedure arises from the fact of its participation in a public procurement 
procedure. On the other, the interest in bringing proceedings against an act of the 
contracting entity is present when the tenderer is capable of obtaining some 
practical advantage by availing itself of that remedy. 
23 More specifically, on the date when the outcome of the procedure was 
communicated, the appellant was declared the successful tenderer. The referring 
court wonders whether, in those circumstances, the time limit laid down in 
national law, in application of Article 2c of the directive, must be calculated 
starting from the day following the date on which the successful tenderer became 
aware of the act of the contracting entity by which the bid placed lower in the 
ranking was declared admissible. Alternatively, in those same circumstances, that 
court questions whether the time limit should be calculated starting from the date 
on which the successful tenderer became aware that the tenderer placed lower in 
the ranking had brought an action challenging the outcome of the procedure. 
24 The referring court points out that, in the present case, it is argued that a 
successful tenderer does not have a present interest in challenging the outcome of 
the procedure at the time of communication of that outcome, but that that interest 
became a present interest when the outcome of the procedure was disputed by a 
tenderer placed lower in the ranking. 
25 The referring court states that, if that line of defence should be rejected, it would 
be necessary to hold that the successful tenderer must be required to bring an 
action in relation to a declaration of the admissibility of other bids placed lower in 
the ranking within a period which starts to run on the day following the date on 
which the outcome of the procedure is communicated. Thus, the referring court 
wonders whether fixing, in all cases, the date on which the period for applying for 
review starts to run depends on the date on which the outcome of the procedure is 
 
1 Translator’s note: the Romanian word ‘interesat’ has no equivalent translation in some language 
versions of the directive; it is missing, for example, in the French, English and Italian versions, 
and is present in the German version (‘betroffen’). 
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communicated effectively ensures that the successful tenderer has access to appeal 
proceedings. 
26 The referring court therefore considers that it is necessary to secure a uniform 
interpretation of the relevant rules of Directive 92/13. As regards the need to make 
a reference for a preliminary ruling, the referring court states, first, that the 
provisions of EU law cited in the question referred have not been interpreted with 
reference to a factual situation such as that in the present case, and so the national 
court is not relieved of its obligation to make a reference. Secondly, the referring 
court considers that the correct application of EU law is not so clear in the present 
case as to leave no reasonable doubt, such that it need not make a reference to the 
Court of Justice for a preliminary ruling. Thirdly, the judgment that will be 
delivered in the present case will be final within the system of domestic appeals. 
Therefore, in accordance with the third paragraph of Article 267 TFEU, the 
referring court is obliged to submit a request to the Court of Justice for an 
interpretation of the provisions of EU law relevant to these proceedings.