Order;Summary — ECLI:EU:C:2023:291
Date: 2023-03-16
Language of the case: Romanian
Court formation: Eighth Chamber
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary C-493/22 – 1 
Case C-493/22 * 
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: 
22 July 2022 
Referring court: 
Curtea de Apel București (Romania) 
Date of the decision to refer: 
28 June 2022 
Appellant (applicant at first instance): 
Armaprocure SRL 
Respondents (defendants at first instance): 
Ministerul Apărării Naționale 
BlueSpace Technology SRL 
      
Subject matter of the main proceedings 
Appeal brought by the appellant (applicant at first instance) Armaprocure SRL 
against the contracting authority, the Ministerul Apărării Naționale (Ministry of 
National Defence, ‘MAPN’), and the lead company of an association that was 
awarded a public procurement contract, BlueSpace Technology SRL 
(‘BlueSpace’), challenging the judgment at first instance by which the court, after 
upholding a plea of lack of interest, dismissed Armaprocure’s claims for the 
annulment of the public procurement contract and the suspension of its 
performance, on the ground that, at the time when the action at first instance was 
brought, the tenders submitted by the appellant for the two contract lots at issue 
had already been definitively rejected, the first for being non-compliant and the 
second non-compliant and unacceptable. 
 
* Language of the case: Romanian. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-493/22 
 
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Subject matter and legal basis of the request for a preliminary ruling 
Under Article 19(3)(b) TEU and Article 267 TFEU, interpretation is sought of 
Article 55(4), Article 56(3), Article 57(2), Article 60(1)(b) and Article 61 of 
Directive 2009/81/EC. 
Question referred for a preliminary ruling 
Are the provisions of Directive 2009/81/EC of the European Parliament and of the 
Council of 13 July 2009 on the coordination of procedures for the award of certain 
works contracts, supply contracts and service contracts by contracting authorities 
or entities in the fields of defence and security, and amending Directives 
2004/17/EC and 2004/18/EC, published in the Official Journal of the European 
Union L 216 of 20 August 2009 (Article 55(4), Article 56(3), Article 57(2), 
Article 60(1)(b) and Article 61) to be interpreted as precluding a tenderer, that has 
been excluded from a public procurement procedure by a decision of the 
contracting authority that has become final, from having access to a means of 
appeal against, or review of the contract concluded with the successful tenderer? 
Provisions of EU law relied on 
Directive 2009/81/EC of the European Parliament and of the Council of 13 July 
2009 on the coordination of procedures for the award of certain works contracts, 
supply contracts and service contracts by contracting authorities or entities in the 
fields of defence and security, and amending Directives 2004/17/EC and 
2004/18/EC; Article 55(4), Article 56(3), Article 57(2), Article 60(1)(b) and 
Article 61 
Provisions of national law relied on 
Ordonanța de urgență a Guvernului nr. 114/2011 privind atribuirea anumitor 
contracte de achiziții publice în domeniile apărării și securității, care transpune 
Directiva 2009/81/CE (Government Emergency Ordinance No 114/2011 on the 
award of certain public contracts in the defence and security sectors and 
transposing Directive 2009/81/EC) 
Article 137 ‘1. The contracting authority shall inform the economic operators 
involved in the award procedure of decisions concerning the result of the selection 
process, the outcome of the public contract award procedure or the conclusion of 
a framework agreement or, where appropriate, the cancellation of the award 
procedure and the possible subsequent initiation of a new procedure, in writing 
and as soon as possible, but no later than three working days after the decision in 
question has been issued. 
ARMAPROCURE 
 
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2. For the purposes of paragraph 1, any candidate/tenderer whom the 
contracting authority has not yet informed of decisions directly concerning his 
candidacy/tender and any candidate/tenderer whose candidacy/tender has not 
been finally rejected by the contracting authority shall be deemed to be an 
economic operator involved in the award procedure. A rejection shall be deemed 
final once it has been communicated to the economic operator concerned and 
either it has been held to be lawful by the Consiliul Național de Soluționare a 
Contestațiilor (National Council for the Resolution of Complaints) seised of the 
matter or it has not been and can no longer be the subject of an appeal. 
3. The information referred to in paragraph 1 shall be communicated also by 
facsimile or electronic means. 
4. Where the contracting authority does not communicate the outcome of the 
procedure also by facsimile or electronic means, the period referred to in 
Article 180(1) shall be extended by five days.’ 
Article 138 ‘2. In the communication referred to in Article 137(3), the contracting 
authority shall inform tenderers/candidates who have been rejected or whose 
tender has been unsuccessful of the reasons for that decision, and shall 
communicate the following: … 
(c) to every tenderer that has submitted an acceptable and compliant, and 
therefore admissible tender, but has not been successful, the characteristics and 
the relative advantages of the successful tender(s) in relation to his tender, the 
name of the tenderer to whom the public contract is to be awarded or, as 
appropriate, the names of the tenderers with whom a framework contract is to be 
concluded; …’. 
Codul de procedură civilă (Code of Civil Procedure), Article 33, pursuant to 
which ‘The interest must be specific, legitimate, personal, vested and current. 
However, even if the interest is not vested and current, an application may be 
made in order to prevent the infringement of a threatened subjective right or to 
prevent the occurrence of imminent irreparable loss or damage.’ 
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) 
Article 2: ‘Any person who considers that his rights or legitimate interests have 
been injured by an act of a contracting authority or by a failure to take a decision 
on an application within the period prescribed by law may seek the annulment of 
that act, or an order instructing the contracting authority to issue an act or to take 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-493/22 
 
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corrective measures or to recognise the alleged right or legitimate interest, 
through administrative-judicial channels or judicial channels, in accordance with 
the provisions of this law.’ 
Article 3(1)(f), pursuant to which, ‘any person who considers [himself so] injured’ 
means ‘any economic operator that satisfies the following cumulative conditions: 
they have or have had an interest in a procurement procedure; they have suffered, 
are suffering or risk suffering harm as a result of an act of a contracting authority 
capable of producing legal effects or a failure to respond to a request relating to a 
procurement procedure within the period prescribed by law.’ 
Article 58 ‘1. Any interested person may apply to the court for a declaration of 
invalidity of a contract or addendum to a contract concluded in breach of the 
conditions laid down in the legislation relating to public procurement, the 
legislation relating to sector-specific procurement and the legislation relating to 
works and services concessions, as appropriate, for the valid conclusion of such a 
contract or addendum or for the parties to be restored to their previous positions.’ 
Succinct presentation of the facts and procedure in the main proceedings 
1 MAPN – Departamentul pentru Armamente (Department for Armaments), 
through the intermediary of CN (Compania Națională, State-owned enterprise) 
Romtehnica SA, published, as contracting authority, contract notice No 
CN1017555/12.12.2019 relating to the award of a public contract following an 
accelerated restricted procedure. The two contract lots, which were to be awarded 
on the basis of the ‘lowest price’ criterion, were for a Type 2 firing range, the 
estimated value of which was 14 405 042 Romanian lei (RON), exclusive of 
VAT, and a Type 3 firing range, the estimated value of which was 
RON 29 500 000, exclusive of VAT. 
2 Four operators, Armaprocure, SC Electro Optic Components SRL (‘EOC’), 
Stimpex SA and Asocierea BlueSpace Technology SRL – CN Romarm SA (‘the 
BTR association’), submitted tenders, each of them for both lots. 
3 After evaluation of the technical and financial proposals of the four candidates, 
the BTR association was declared the successful tenderer. By letter of 9 March 
2020 giving notice of the outcome of the procedure, the contracting authority 
informed Armaprocure that its tenders for both lots had been rejected, having been 
found to be non-compliant for lot 1 and non-compliant and unacceptable for lot 2. 
4 On 19 March 2020, Armaprocure challenged the outcome of the procedure, 
bringing a complaint before the Consiliul Național de Soluționare a Contestațiilor 
(National Council for the Resolution of Complaints, ‘the CNSC’). By decision of 
10 April 2020, the CNSC partially upheld that complaint, annulling procedure 
report No A3-1957/03.03.2020 and the subsequent acts, including the letters 
notifying the outcome of the procedure, and instructing the contracting authority 
to re-evaluate Armaprocure’s tender for lot 1 and the tenders submitted by the 
ARMAPROCURE 
 
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BTR association, EOC and Stimpex for lots 1 and 2, and to issue a new report on 
the procurement procedure. 
5 MAPN, EOC and the BTR association challenged that decision before the Curtea 
de Apel București (Court of Appeal, Bucharest, Romania), which, on 30 June 
2020, upheld MAPN’s and BlueSpace’s claims, partially varying the CNSC’s 
decision so as to instruct the contracting authority to re-evaluate the BTR 
association’s tender for lots 1 and 2 and to issue a new report on the procurement 
procedure. As to the remainder, the CNSC’s decision remained unchanged. 
6 The application which Armaprocure made for revision of the decision of 30 June 
2020 of the Court of Appeal, Bucharest was allowed on 8 March 2021. The 
contested decision was partially varied and the head of claim by which 
Armaprocure requested a re-evaluation of its competitors’ tenders in so far as 
concerned the manner of fulfilling the technical requirements was allowed to 
proceed. Following the re-hearing of the complaint, on 25 June 2021, the head of 
claim by which Armaprocure requested a re-evaluation of its competitors’ tenders 
in so far as concerned the manner of fulfilling the technical requirements was 
dismissed as unfounded. 
7 After being informed of the decision of 30 June 2020 of the Court of Appeal, 
Bucharest, the contracting authority proceeded to re-evaluate the tenders and, by 
letter of 10 November 2020, the appellant was informed that its tender for lot 1 
had been rejected as non-compliant, while the tender submitted by the BTR 
association had been successful. 
8 The complaint against that re-evaluation which Armaprocure brought before the 
CNSC was decided on 24 May 2021. Armaprocure’s head of claim seeking the 
annulment of the decision finding its tender for lot 1 to be non-compliant was 
dismissed as unfounded, as were its heads of claim seeking an instruction to the 
contracting authority to re-evaluate its tender for that lot and seeking the 
annulment of the procedure. By the same decision, the report on the procedure 
was partially annulled, in so far as concerned the financial evaluation of the 
tenders submitted by the BTR association and EOC and the authority was 
instructed to re-evaluate those two bids. 
9 Subsequently to that decision, the contracting authority issued a new report on the 
procedure, dated 9 June 2021, and informed the tenderer EOC that its tender had 
been rejected as unacceptable. Armaprocure was not informed of the outcome of 
the re-evaluation, since its tender had already been rejected and the rejection had 
been considered lawful by the CNSC. 
10 The action which Armaprocure brought on 8 June 2021 against the CNSC’s 
decision of 24 May 2021 was dismissed by the Court of Appeal, Bucharest on 
27 October 2021. The application which Armaprocure made for revision of that 
decision was, in turn, dismissed on 23 November 2021 by the Înalta Curte de 
Casație și Justiție (High Court of Cassation and Justice, Romania). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-493/22 
 
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11 The BTR association signed the contract on 17 November 2021 and the 
contracting authority signed it on 22 and 23 November 2021. The contract award 
notice was published on 31 December 2021. 
12 On 10 January 2022, Armaprocure brought a complaint before the CNSC against 
the acts of the contracting authority subsequent to the CNSC’s decision of 24 May 
2021 in so far as concerned lot 1. That complaint was dismissed by the CNSC on 
28 January 2022, together with all of the objections which Armaprocure had 
raised, while the BTR association’s application for leave to intervene was granted 
and that of the company Transcarpat Sportours International SRL (Armaprocure’s 
manufacturer) was denied. The applications made to the Court of Appeal, 
Bucharest by Armaprocure and Transcarpat Sportours International SRL were 
dismissed on 30 May 2022. 
13 By an application registered on the roll of the Tribunalul București (Regional 
Court, Bucharest, Romania) on 1 February 2022, Armaprocure brought an action 
against the contracting authority and BlueSpace, in its capacity as lead company 
of the BTR association, seeking (i) a declaration that the public procurement 
contract concluded on 23 November 2021 was null and void as well as the 
annulment of that contract, (ii) the restoration of the contracting parties to their 
positions prior to the conclusion of the contract, and (iii) the suspension of the 
performance of the contract pending resolution of the claim for a declaration of 
nullity of the contract. 
14 The Regional Court, Bucharest dismissed that action by civil judgment No 1750 
of 29 March 2022, which found that, in so far as lot 2 was concerned, 
Armaprocure’s tender had been definitively rejected following the CNSC’s 
decision of 10 April 2020, and that, in so far as lot 1 was concerned, again, 
Armaprocure’s tender had been definitively rejected following the decision of the 
Court of Appeal, Bucharest of 27 October 2021. 
15 The Regional Court found that, following the final decision on the non-
compliance of Armaprocure’s tender, that point could no longer be called into 
question in any legal action the company might bring. It therefore held that 
Armaprocure no longer had an interest in raising objections to the tender that had 
won the contract or to the acts of the procurement procedure. The applicant’s 
interest in the annulment of the procurement procedure could not be regarded as 
current, but merely potential, since the annulment of the procedure would entail, 
at most, an opportunity for the applicant to submit a new offer in the uncertain 
situation of the resumption of the procedure. 
16 On the basis of Article 3(3) of Law No 101/2016, and referring to paragraph 36 of 
the Court of Justice’s judgment of 21 December 2016, Technische 
Gebäudebetreuung and Caverion Österreich (C-355/15), the Regional Court held 
that a person that has been definitively excluded from a procedure could no longer 
be considered as having or having had an interest in relation to a procurement 
procedure. 
ARMAPROCURE 
 
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17 Armaprocure brought an appeal against the judgment of 29 March 2022 of the 
Regional Court, Bucharest before the Court of Appeal, Bucharest, the referring 
court, arguing that the contracting authority had signed the contract, at a time 
when the CNSC’s decision was still pending in relation to a complaint against the 
procedure, with a tenderer that had submitted an unacceptable and non-compliant 
tender which was subsequently amended and supplemented by means of replies to 
requests for clarification, without observing waiting periods or awaiting the 
CNSC’s decision. 
18 Armaprocure has also argued that its interests have been harmed by the contract 
which the contracting authority concluded following the procedure and that, in the 
absence of that harm, it would have had a genuine chance of being awarded the 
public procurement contract that was the subject of the procedure, or another 
contract following the cancellation of the current procedure and the organisation 
of a lawful one. 
19 In addition, it argues that the action brought before the Regional Court was an 
action for a declaration of invalidity of the public procurement contract based on 
the provisions of Article 58(1) of Law No 101/2016, and not a claim based on 
Article 8 of Law No 101/2016. Consequently, in this instance it was not the 
concept of ‘any person who considers [himself so] injured’, referred to in 
Article 3(1)(f) of Law No 101/2016, that was relevant, but instead the concept of 
‘any interested person’, referred to in Article 58(1) of that law. 
20 Arguing that Directive 2009/81/EC deals with a system of reviews that is inspired 
by the system established by Directive 89/665, Armaprocure considers relevant 
the Court of Justice’s case-law on that latter directive, according to which, ‘in 
order for the review of decisions taken by a contracting authority to be regarded as 
effective, review procedures must be available at least to any person having or 
having had an interest in obtaining a particular contract and who has been or risks 
being harmed by an alleged infringement’. 
21 Seeking to demonstrate its interest, Armaprocure also refers to paragraph 2 of the 
operative part of the judgment of 11 May 2017, Archus and Gama (C-131/16), 
and paragraph 27 of the judgment of 5 April 2016, PFE (C-689/13). 
The essential arguments of the parties in the main proceedings 
22 The appellant (applicant at first instance) maintains that it is necessary to make a 
reference to the Court of Justice. In addition to the arguments set out in 
paragraphs 17 to 21 above, it also refers to the operative part of the judgment of 
4 July 2013, Fastweb (C-100/12). It does, however, state that that case-law does 
not analyse situations exactly like that at issue in the present case. Armaprocure 
also maintains that it would be in a position to prove that the successful tender is 
non-compliant, but any examination of its allegations and evidence is blocked by 
the unlawful raising of a plea of lack of interest. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-493/22 
 
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23 MAPN considers it unnecessary to make a request to the Court of Justice for a 
preliminary ruling, since, in the course of the proceedings to date, Armaprocure 
has not found itself in a situation where it was denied access to a remedy or 
review. Armaprocure has not demonstrated the existence of any harm or loss, 
given that its tender was non-compliant, as the Court of Appeal, Bucharest held in 
earlier stages of the proceedings. 
24 BlueSpace considers that, in order for a reference the Court of Justice for 
interpretation of the provisions of Directive 2009/81/EC to be admissible, a 
number of cumulative conditions must be met, including the condition that the 
doctrine of acte clair does not apply. However, since the civil judgment of the 
Regional Court, Bucharest, which is appealed before the referring court, is well-
founded, on the basis of both national law and EU law, and since there is no doubt 
in this case about the application of Directive 2009/81, the national court is not 
required to refer the matter to the Court of Justice under Article 267 TFEU. 
Succinct presentation of the grounds for the reference for a preliminary 
ruling 
25 According to the referring court, at issue in the present case is the lawfulness of 
upholding a plea of lack of interest in respect of a tenderer that has been excluded 
from a public procurement procedure, by decision of the contracting authority that 
has become final, in challenging the contract concluded with the successful 
tenderer. 
26 The Court of Appeal, Bucharest points out that Directive 2009/81 refers to the 
tenderer concerned or the candidate concerned. The interest (‘concern’) of the 
tenderer or candidate in a public procurement procedure arises from its 
participation in that public procurement procedure. By contrast, the ‘interest’ in 
bringing an action against the act of the contracting authority is current when the 
tenderer can derive a practical benefit from the bringing of that action. 
27 Specifically, since, at the time the contract was signed, the appellant’s tender had 
already been definitively declared non-compliant (for lot 1) and non-compliant 
and unacceptable (for lot 2), the referring court wonders whether the expression 
‘any interested person’, in Article 58(1) of Law No 101/2016, and the respective 
phrases ‘at least to any person having or having had an interest’, ‘the tenderers 
and candidates concerned’, and ‘the tenderer applying for a review’, provided for 
in Article 55(4), Article 57(2), Article 60(1)(b), Article 56(3) and Article 61 of 
Directive [2009/81], can be interpreted as precluding Armaprocure from access to 
legal action against the contract concluded with the successful tenderer. 
28 The referring court asks for its request for a preliminary ruling to be dealt with 
under the expedited procedure and notes that the ruling it is called upon to give 
will be final within the system of domestic remedies.