62022CJ0303_RES
Case C‑303/22
CROSS Zlín, a.s.
v
Úřad pro ochranu hospodářské soutěže
(Request for a preliminary ruling from the Krajský soud v Brně)
Judgment of the Court (Fourth Chamber) of 18 January 2024
(Reference for a preliminary ruling – Procedures for the review of the award of public supply and public works contracts – Directive 89/665/EEC – Access to review procedures – Article 2(3) and Article 2a(2) – Obligation for Member States to provide for a review procedure with suspensive effect – Review body of first instance – Review relating to a contract award decision – Article 2(9) – Body responsible for review procedures of a non-judicial character – Conclusion of a public contract before lodging of a judicial action against a decision by that body – Article 47 of the Charter of Fundamental Rights of the European Union – Effective judicial protection)
Approximation of laws – Review procedures in respect of the award of public supply and public works contracts – Directive 89/665 – Obligation for Member States to provide for a review procedure with suspensive effect – Scope – Obligation to ensure respect for the right to an effective remedy and to a fair hearing – National legislation prohibiting the conclusion of a contract only until the decision of the review body of first instance – Whether permissible – Whether that body is judicial or non-judicial in character – Irrelevant
(Charter of Fundamental Rights of the European Union, Art. 47; Council Directive 89/665, Arts 2(3) and 2a(2))
(see paragraphs 46-50, 54, 57-59, 63, 65; 68-70, 74)
Résumé
Ruling on a question referred for a preliminary ruling by the Krajský soud v Brně (Regional Court, Brno, Czech Republic), the Court of Justice provides clarification as to the interpretation of Directive 89/665, (
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) relating to review procedures concerning the award of public contracts, in the light of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) relating to the right to an effective remedy.
In the context of a public contract, the Statutární město Brno (City of Brno, Czech Republic), as contracting authority, received two bids. Following the exclusion of the company CROSS Zlín a.s. for failure to meet the tender conditions, the contract was awarded to Siemens Mobility s. r. o. on 7 April 2020.
CROSS Zlín lodged an objection to the notice of exclusion, which was dismissed by decision of 4 May 2020. Following that dismissal, it applied to the Úřad pro ochranu hospodářské soutěže (Office for the Protection of Competition, Czech Republic) (‘the Office’) for annulment of that notice of exclusion and of the decision to award the contract in question to Siemens Mobility. By decision of 5 August 2020, the Office dismissed its application. CROSS Zlín then lodged an administrative appeal against that decision, which the President of the Office, as second-instance administrative body, dismissed by decision of 9 November 2020. On 18 November 2020, the contracting authority concluded the public contract with Siemens Mobility.
Cross Zlín brought an action before the Regional Court, Brno, the referring court, against that decision of the President of the Office. In parallel to that action, CROSS Zlín lodged an application for the action to be recognised as having suspensive effect in relation to conclusion of the contract and for the adoption of an interim measure prohibiting the contracting authority from concluding or performing that public contract. The referring court, applying Czech law, (
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) dismissed that application.
Questioning whether Directive 89/665 (
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) and the requirement to ensure effective judicial review deriving from Article 47 of the Charter preclude the Czech legislation, which enables a contracting authority to conclude a public contract before expiry of the period prescribed for bringing a judicial action against the decision of the second-instance administrative body or before the court hearing the case can rule on an application seeking the adoption of an interim measure prohibiting the conclusion of the contract until the ruling on that action has become final, the Regional Court, Brno referred a question to the Court for a preliminary ruling on the interpretation of that directive.
Findings of the Court
In the first place, the Court observes that Directive 89/665 contains detailed provisions laying down a coherent system of review procedures in the field of public contracts. In that regard, that directive (
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) provides, first, that Member States are to ensure that persons having or having had an interest in obtaining a particular contract and who have been or risk being harmed by an alleged infringement have sufficient time for effective review of the contract award decisions taken by contracting authorities by adopting the necessary provisions which respect the minimum standstill periods for conclusion of the contract (
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) and, second, that when those persons apply for such a review, the contracting authority may not conclude the contract before the review body has made a decision on the application either for interim measures or for review.
The Court observes, in the second place, that it follows from that directive that the Member States are able to confer on non-judicial bodies the power to hear and determine reviews of decisions to award a public contract. In such cases, any allegedly illegal measure and any alleged defect on the part of a non-judicial review body must be capable of being the subject of judicial review or a review which is in substance judicial within the meaning of EU law. However, Directive 89/665, in laying down the obligation to suspend the conclusion of a public contract, does not make any reference to that judicial review.
In those circumstances, when a Member State decides to confer the power to determine procedures for the review of decisions awarding a public contract on a non-judicial body of first instance, the words ‘review body’ in Article 2(3) of that directive refer to that body. Consequently, the Member States must provide for suspension of the conclusion of the public contract concerned, either automatically until that body has ruled on the review or, at the very least, until it has decided on an application for interim measures seeking such a suspension.
In the third place, the Court observes that Directive 89/665 (
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) does not require that that suspension should remain in place after the end of the procedure before such a non-judicial review body, for example until a body that is judicial in character has ruled on the action that may be brought against the decision of that non-judicial review body.
That finding is consistent with the objectives pursued by Directive 89/665, which is intended to ensure full respect for the right to an effective remedy and to a fair hearing, enshrined in the first and second paragraphs of Article 47 of the Charter.
In the fourth place, the Court finds that, under Directive 89/665, (
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) a Member State may provide that where a contract has been entered into after the end of the standstill on its conclusion, the powers of the body responsible for review procedures are to be limited to awarding damages to any person harmed by an infringement of EU law on public procurement or of national rules implementing that law.
In that respect, the Court states that that interpretation cannot be called into question by the judgment in Randstad Italia. (
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) In that judgment, the Court interpreted the expression ‘independent review body’, within the meaning of the second subparagraph of Article 2a(2) of Directive 89/665, as referring to an independent and impartial tribunal, but expressly limited that latter interpretation, stating that it applied ‘[for] determining whether the exclusion of a tenderer has become definitive’.
In the fifth and last place, the Court states that, where the legislation of a Member State does not provide for the automatic suspension of the conclusion of a public contract until the date on which the review body of first instance rules on the review, and where that review body is not judicial in character, the rejection by that body of an application for interim measures seeking to prohibit the conclusion of a public contract until the date on which that body rules on that application must be amenable to judicial review with suspensive effect until the court considering the matter has ruled on those interim measures.
That requirement derives from a reading of Directive 89/665. Accordingly, in order to ensure the effectiveness of an action against the decision of a non-judicial body of first instance rejecting an application for interim measures seeking to prohibit the conclusion of a public contract until the date on which that body has ruled, first, the tenderer concerned must be accorded a reasonable standstill period in order to enable it to bring that action and, second, if that action is brought, the conclusion of that contract must remain suspended until the court considering the matter rules on that action.
The Court therefore concludes that the Czech legislation, which prohibits a contracting authority from concluding a public contract only until the date on which the body of first instance rules on the review of the decision to award that contract, does not infringe Directive 89/665, it being irrelevant in that regard whether that review body is judicial in character or not.
(
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)	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), as amended by Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p. 1; ‘Directive 89/665’).
(
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)	Namely, Paragraphs 241, 242, 245, 246, 254, 257 and 264 of Zákon č. 134/2016 Sb., o zadávání veřejných zakázek (Law No 134/2016 on the award of public contracts), in the version applicable to the dispute in the main proceedings (‘Law No 134/2016’).
(
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)	Article 2(3) and Article 2a(2) of Directive 89/665.
(
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)	Article 2a(1) of Directive 89/665.
(
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)	Article 2a(2) of Directive 89/665.
(
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)	Article 2(3) of Directive 89/665, read in the light of Article 2(9) thereof.
(
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)	Article 2(7), second subparagraph, of Directive 89/665.
(
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)	Judgment of 21 December 2021, Randstad Italia, C‑497/20, EU:C:2021:1037.