Provisional text
OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 7 May 2026 (1)
Joined Cases C‑266/25 and C‑267/25
I-Sete – Inovação, Soluções Económicas e Tecnologias Ecológicas, Lda.
v
EDIA – Empresa de Desenvolvimento e Infra-estruturas do Alqueva, S.A.,
interveners:
DST Solar, S.A.,
Domingos da Silva Teixeira, S.A.,
Greenvolt Next Portugal, Lda
(Requests for a preliminary ruling from the Tribunal Administrativo e Fiscal do Porto (Administrative and Tax Court, Oporto, Portugal))
( Preliminary ruling proceedings – Review procedures in matters relating to public procurement – Guarantee of an effective remedy – Challenge to the contract award decision – Directive 89/665/EEC – Article 2(1)(a), (3)
and
(4) – Automatic suspension of the contested award decision – Provisional lifting of the suspensive effect – Projects financed or co-financed by European funds – Weighing-up of conflicting interests – Public interest presumption – Article 2(5) – Procedure for adoption of interim measures )
1.        In 2024, the Portuguese legislature amended the general rules applicable to urgent administrative actions against decisions awarding public contracts. (2) Pursuant to that amendment, the rule that had been in force until then (which resulted in the automatic suspension of the contract award decision in the event of a review) was supplemented by another which, essentially, requires the provisional lifting of that suspension where there is a risk of loss of funding of a contract financed or co-financed by European funds.
2.        In two references for a preliminary ruling which have been joined, the referring court asks the Court of Justice whether the new national legislation is compatible with Directive 89/665/EEC. (3)
I.      Legal framework
A.      European Union law. Directive 89/665
3.        Article 2 (‘Requirements for review procedures’) reads:
‘1.      Member States shall ensure that the measures taken concerning the review procedures specified in Article 1 include provision for
powers to:
(a)      take, at the earliest opportunity and by way of interlocutory procedures, interim measures with the aim of correcting the alleged infringement or preventing further damage to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a public contract or the implementation of any decision taken by the contracting authority;
…
3.      When a body of first instance, which is independent of the contracting authority, reviews a contract award decision, Member States shall ensure that the contracting authority cannot conclude the contract before the review body has made a decision on the application either for interim measures or for review. The suspension shall end no earlier than the expiry of the standstill period referred to in Article 2a(2) and Article 2d(4) and (5).
4.      Except where provided for in paragraph 3 and Article 1(5), review procedures need not necessarily have an automatic suspensive effect on the contract award procedures to which they relate.
5.      Member States may provide that the body responsible for review procedures may take into account the probable consequences of interim measures for all interests likely to be harmed, as well as the public interest, and may decide not to grant such measures when their negative consequences could exceed their benefits.
…’
4.        Article 2a (‘Standstill period’) provides:
‘1.      The Member States shall ensure that the persons referred to in Article 1(3) have sufficient time for effective review of the contract award decisions taken by contracting authorities, by adopting the necessary provisions respecting the minimum conditions set out in paragraph 2 of this Article and in Article 2c.
2.      A contract may not be concluded following the decision to award a contract falling within the scope of Directive 2014/24/EU or Directive 2014/23/EU before the expiry of a period of at least 10 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned if fax or electronic means are used or, if other means of communication are used, before the expiry of a period of either at least 15 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned or at least 10 calendar days with effect from the day following the date of the receipt of the contract award decision.
…’
5.        In accordance with Article 2d (‘Ineffectiveness’):
‘1.      Member States shall ensure that a contract is considered ineffective by a review body independent of the contracting authority or that its ineffectiveness is the result of a decision of such a review body in any of the following cases:
…
(b)      in case of an infringement of Article 1(5), Article 2(3) or Article 2a(2) of this Directive, if this infringement has deprived the tenderer applying for review of the possibility to pursue pre-contractual remedies where such an infringement is combined with an infringement of
Directive 2014/24/EU or Directive 2014/23/EU, if that infringement has affected the chances of the tenderer applying for a review to obtain the contract;
…
2.      The consequences of a contract being considered ineffective shall be provided for by national law.
National law may provide for the retroactive cancellation of all contractual obligations or limit the scope of the cancellation to those obligations which still have to be performed. In the latter case, Member States shall provide for the application of other penalties within the meaning of Article 2e(2).
3.      Member States may provide that the review body independent of the contracting authority may not consider a contract ineffective, even though it has been awarded illegally on the grounds mentioned in paragraph 1, if the review body finds, after having examined all relevant aspects, that overriding reasons relating to a general interest require that the effects of the contract should be maintained. In this case, Member States shall provide for alternative penalties within the meaning of Article 2e(2), which shall be applied instead.
Economic interests in the effectiveness of the contract may only be considered as overriding reasons if in exceptional circumstances ineffectiveness would lead to disproportionate consequences.
However, economic interests directly linked to the contract concerned shall not constitute overriding reasons relating to a general interest. Economic interests directly linked to the contract include, inter alia, the costs resulting from the delay in the execution of the contract, the costs resulting from the launching of a new procurement procedure, the costs resulting from the change of the economic operator performing the contract and the costs of legal obligations resulting from the ineffectiveness.
…’
B.      Portuguese law
1.      Law No 43/2024
6.        In amending Law No 30/2021, Law No 43/2024 inserted into that law Article 25-A, which is worded as follows:
‘1 – Urgent administrative actions concerning pre-contractual matters, seeking to challenge acts awarding tenders in respect of procedures for the performance of projects financed or co-financed by European funds, provided that those actions are brought within 10 working days of the notification of the award to all tenderers, shall automatically suspend the effects of the contested act.
2 – After the expiry of 10 working days from notification of the award to all tenderers, the defendant may request that the court, without first hearing the opposing party, provisionally lift the automatic suspensive effect, by enclosing summary documentary evidence.
3 – The automatic suspensive effect shall be provisionally lifted when the court summarily verifies, within a maximum period of 48 hours, that the following cumulative conditions are met:
(a)      the period of 10 working days from the notification of the award decision to all tenderers has expired;
(b)      there is a risk of loss of funding in a contract intended for the performance of a project financed or co-financed by European funds.
4 – For the purposes of point (b) of the preceding paragraph, there is a presumed risk of loss of funding when there is a connection between the subject matter of the contract and the performance of projects financed or co-financed by European funds; for that purpose, it is sufficient for the applicant to attach a document proving the decision to finance the project in which the contract is included.
5 – In the event that the suspensive effect is provisionally lifted, the applicant shall be notified immediately and shall have a period of five days to request, on a reasoned basis, that the automatic suspensive effect be maintained until the interim proceedings are concluded, on the ground that the requirements referred to in paragraph 3 have not been met.
6 – If the applicant requests that the automatic suspensive effect be maintained, the defendant shall be invited, within seven days, to supplement the grounds of the request already made pursuant to paragraph 2, so as to include in it a weighing up of the public and private interests at stake and the damage that would result from maintaining the suspensive effect.
7 – The applicant shall have seven days to respond to the request that the suspensive effect be lifted referred to in the preceding paragraph, followed, without further pleadings and no later than seven days after the completion of the absolutely essential measures of inquiry, by the judge’s ruling on the interim proceedings.
8 – The suspensive effect shall be lifted when, having duly weighed up all the public and private interests at stake, the damage that would result from maintaining it is shown to be greater than that which could result from lifting it.
9 – The present regime shall apply to contracts concluded under the procedural rules provided for in this law, and under the procedural rules resulting from the Public Contracts Code, (4) and shall apply to contracts concluded in accordance with other legislation on public procurement.
10 – Articles 100 to 103-B of the Code of Procedure of the Administrative Courts shall apply in all matters not provided for in the preceding paragraphs.’ (5)
2.      Code of Procedure of the Administrative Courts
7.        Article 103-A (‘Automatic suspensive effect’) states:
‘1 – Pre-contractual litigation challenging award decisions relating to procedures covered by Article 104(1)(a) of the Public Contracts Code shall, provided that it is
initiated within 10 working days following notification of the award to all tenderers, automatically suspend the effects of the decision challenged or the performance of the contract, if the latter has already been concluded.
2 – While the action is pending, the defendant and the opposing parties may request the court to lift the suspensive effect provided for in the previous paragraph.
3 – The applicant shall have five days to respond to the request that the suspensive effect be lifted, which shall be followed, without further pleadings and no later than seven days after the completion of the absolutely essential measures of inquiry, by the judge’s ruling on the proceedings.
4 – The suspensive effect shall be lifted when, having duly weighed up all the public and private interests at stake, the damage that would result from maintaining it is shown to be greater than that which could result from lifting it.’
II.    Facts, dispute and questions referred for a preliminary ruling
8.        EDIA – Empresa de Desenvolvimento e Infra-estruturas do Alqueva, S.A. (‘Edia’ or ‘the contracting authority’) launched two public procurement procedures for construction works for floating solar power plants at different pumping stations:
–        The first contract, (6) in the amount of EUR 17 619 893.50, was awarded to ‘Proposta CONSÓRCIO DSTSolar/DST’.
–        The second contract, (7) in the amount of EUR 7 467 990.56, was awarded to the group of undertakings ‘Proposta Greenvolt/EDP’.
9.        I-Sete – Inovação, Soluções Económicas e Tecnologias Ecológicas, Lda. (‘I-Sete’) challenged the award decisions before the Tribunal Administrativo e Fiscal do Porto (Administrative and Tax Court, Oporto, Portugal).
10.      In Case C‑266/25, the referring court sets out only the following relevant facts:
–        ‘The performance of the contract concerning construction works for the floating solar power plant of the Os Álamos pumping station in the Alqueva region (Portugal) is financed by funds from the Council of Europe Development Bank, totalling EUR 45
million.’
–        ‘The applicant challenges the decision to award that works contract to the group formed by the interveners, on the ground that their bid should have been rejected, arguing, in that respect and in essence, that the technical solution advocated by them exceeds the nominal power threshold, as defined in the specifications, when operating below 40 °C.’
–        ‘The applicant therefore concludes that, according to the defined award criterion, the works contract should have been awarded to the tender it submitted, as it was the most economically favourable.’
–        ‘The defendant contends that, according to the financing contract concluded (see paragraph 1 above), the works contract has a deadline for completion of 31 December 2025, failing which the aforementioned European funds will be lost.’
–        ‘It considers that, if the automatic suspensive effect granted in the present case is not lifted by virtue of Article 25-A(1) of Law No 30/2021 … (as amended by Law No 43/2024 …), there will be a serious risk of losing the aforementioned European funding because timely performance of the works contract will be impossible.’
11.      The description of the relevant facts set out in the request for a preliminary ruling in Case C‑267/25 is similar to that in Case C‑266/25.
12.      Before adjudicating in each dispute on the suspension of the effects of the award decision, the Tribunal Administrativo e Fiscal do Porto (Administrative and Tax Court, Oporto) has referred to the Court of Justice the following identically worded questions in both cases:
‘(1)      Does the provisional lifting of the automatic suspensive effect, without hearing the opposing party, enshrined in Article 25-A(2) and (3) of Law No 30/2021 …, as amended by Law No 43/202[4] …, comply with Article 2d of Directive [2007/66], when the latter is interpreted as meaning that the lifting of such an effect always depends on hearing the opposing party and a prior merit-based assessment of all aspects for the purposes of the decision to be taken?
(2)      Must Article 2d of that directive be interpreted as not precluding national legislation that makes the economic interest in a possible loss of European funds, on account of a delay in the implementation of a funded project, an overriding reason relating to the general interest justifying the lifting of automatic suspensive effect? Is a mere economic loss a disproportionate consequence, taking into account the interests intended to be safeguarded by the operation of the automatic suspensive effect, compatible with the provisions of the second subparagraph of Article 2d(3)?’
III. Procedure before the Court of Justice
13.      The requests for a preliminary ruling were received at the Registry of the Court of Justice on 8 April 2025.
14.      Written observations were lodged by Edia, I-Sete, the Czech and Portuguese governments, and the European Commission. All those parties, with the exception of the Czech Government, appeared at the hearing held on 5 March 2026.
IV.    Assessment
A.      Preliminary observation
15.      For a better understanding of the dispute, it is helpful to summarise the system established by Article 25-A of Law No 30/2021, amended in 2024, in accordance with which:
–        During the initial stage, the timely application for an urgent review of a decision awarding a public contract automatically leads to the suspension of the effects of that award. (8)
–        In
the (possible) second stage, the defendant (9) may request that the court, without hearing the opposing party, provisionally lift the automatic suspension. The court must grant that request if it summarily verifies that there is a risk of loss of European funding, for which purpose it is sufficient for the applicant to submit a document proving the decision to finance the project in which the contract is included. In that case, the court will provisionally lift the suspension initially ordered.
–        In the third stage, once the decision to provisionally lift the automatic suspension has been notified to the applicant, the latter may request that the suspension be maintained (more correctly, restored); that request is notified to the contracting authority.
–        Finally, the court gives a decision on the interim proceedings, for which purpose it will lift the suspensive effect if, having weighed up the public and private interests at stake, it considers that the damage that would result from maintaining the suspensive effect is greater than that which could result from lifting it.
B.      Applicable provisions of European Union law
16.      The referring court’s questions concern the interpretation of Article 2d of Directive 89/665.
17.      As regards the rules governing review procedures relating to the award of public contracts, Article 2d of Directive 89/665 governs the ineffectiveness of public contracts following their conclusion. The grounds which may lead to the ineffectiveness of public contracts include that provided for in paragraph (1)(b) of that article, which refers to the infringement of certain provisions (of that directive) if that infringement has deprived a tenderer of the possibility
of pursuing pre-contractual remedies.
18.      Article 2d therefore comes within the sphere of post-contractual litigation. It presupposes that the public contract concerned has already been concluded and that it is ineffective on the ground that it is vitiated by certain defects.
19.      In the two cases that are the subject of the reference for a preliminary ruling, however, the debate concerns questions relating to the interim protection provided for in Article 2(1)(a) of Directive 89/665. The national provision the compatibility of which with that directive has been called into question (that is, Article 25-A of Law No 30/2021, as amended in 2024) comes within the context of pre-contractual litigation, as the heading of that article states.
20.      Accordingly, Article 2d  of Directive 89/665 is not applicable to the successive stages of the procedure for the adoption of interim measures sought against a decision awarding a contract, since those measures are governed by Article 2.
21.      In particular, Article 2 of Directive 89/665 governs the interlocutory procedure for applying for interim measures (paragraph 1), the automatic suspension of an award decision (paragraph 3) and the powers of the body responsible for review procedures to adopt or refuse to grant interim measures (paragraph 5).
22.      The questions referred for a preliminary ruling must, therefore, be approached from the perspective of Article 2 of Directive 89/665, subject to the possibility that it may be helpful during the examination of those questions to refer to Article 2d of that directive.
C.      First question referred
23.      The referring court asks whether ‘… the provisional lifting of the automatic suspensive effect, without hearing the opposing party, enshrined in Article 25-A(2) and (3) of Law No 30/2021 …, as amended by Law No 43/202[4],’ complies with Directive 89/665.
24.      Pursuant to Article 25-A(2) and (3) of Law No 30/2021, a court may, without first hearing the opposing party, provisionally lift the automatic suspensive effect where the defendant requests this and pleads that there is a risk of loss of funding for the contract.
25.      The fourth subparagraph of Article 1(1) of Directive 89/665 requires Member States to take the measures necessary to ensure that decisions taken by the contracting authorities may be reviewed effectively in accordance with the conditions set out in Articles 2 to 2f of that directive.
26.      In accordance with the objective of ‘ensur[ing] full respect for the right to an effective remedy …, in accordance with the first and second subparagraphs of Article 47 of the Charter’, (10) the Court of Justice has held that the interested parties must be given ‘a real possibility of bringing proceedings and, in particular, of applying for interim measures’ prior to conclusion of the contract. (11)
27.      Article 2(3) of Directive 89/665 provides that a review of a contract award decision is to be carried out by ‘a body of first instance, which is independent of the contracting authority’. (12) The application for that review prevents the contracting authority from concluding the contract.
28.      Pursuant to Article 2(3) of Directive 89/665, the law of a Member State must ensure that the contracting authority cannot conclude the contract before the first-instance review body has made a decision on the application either for interim measures or for review. The suspension will end no earlier than the expiry of the period referred to in other provisions of Directive 89/665. (13)
29.      In accordance with Article 2(4) of Directive 89/665, the situation in Article 2(3) is one in which review procedures have an automatic suspensive effect.
30.      The national legislation at issue initially appears to respect the automatic nature of the suspension of the effects of the award decision: the simple act of applying for a review of that decision (within the time limit of 10 working days of notification of the decision) renders the award decision temporarily ineffective, by operation of law.
31.      The difficulty arises where a contracting authority (‘the defendant’) responds to the suspension of the effects of the award decision by claiming that, since the contract concerned is financed or co-financed by European funds, there is a risk that that funding will be lost.
32.      In those circumstances, the legislation at issue requires the court to lift the suspension provisionally, without first hearing the party who applied for the review which led to that suspension. (14) In addition, the mandatory lifting of the suspension does not involve any examination of the interests at stake.
33.      The first question concerns not only the lifting of the automatic suspension already granted but also the lack of a prior hearing (during that second stage of the interim proceedings) of the party who applied for the review and obtained the automatic suspension of the award decision.
34.      I shall examine separately the two aspects of the provision at issue: (a) the lifting of the automatic suspension itself; and (b) the absence of the applicant from that stage of the interim proceedings.
1.      The lifting of the automatic suspension
35.      As regards the lifting of the automatic suspension of the effects of the award decision, I have explained above how Article 2(3) and (4) of Directive 89/665 provides that a challenge to the contract award decision automatically suspends the effects of that decision. (15)
36.      The suspension must be maintained (to ensure that the contracting authority cannot conclude the contract) until such time as the review body ‘has made a decision on the application either for interim measures or for review’
(Article 2(3) of Directive 89/665).
37.      The rationale for that requirement is based on the full legal protection which must be ensured prior to conclusion of the contract, in accordance with Article 2(1) of Directive 89/665, ‘where infringements can still be rectified’. (16) That enables tenderers to have a real possibility of bringing proceedings effectively and not merely to respond subsequently to events which have already taken place. (17)
38.      However, the legislation at issue introduces a rule which overturns the automatic suspension of the award decision, replacing it with another which is exactly the reverse: the automatic suspension is lifted pending a decision by the competent body on the application for interim measures or for review, if the contracting authority so requests (and claims that the European funding of the contract may be lost).
39.      Although the order for reference does not express it in those terms, if the rule on the ‘lifting of the automatic suspension’ has any purpose, it is to bring about the conclusion of the contract at that point, without waiting for the ruling of the review body (generally a court) at a later date. The only obstacle preventing the contracting authority from concluding that contract with the tenderer selected by it was the automatic suspension, which was lifted as a result of the contracting authority’s response to it.
40.      At the hearing, all the parties (including the Portuguese Government and the contracting authority) confirmed that the lifting of the automatic suspension allows the contracting authority to conclude the contract. (18) As the Commission and the Czech Government rightly submit, that assessment means that the provision at issue is not compatible with Article 2 of Directive 89/665.
41.      There is nothing in Directive 89/665 which authorises national legislation to lay down a derogation, of that kind, from the explicit requirement that an application for review of the award decision entails the automatic suspension of that decision until such time as the review body has given a decision on the application for interim measures or for review.
42.      What the provision at issue does is, I repeat, reverse the requirement laid down in Article 2 of Directive 89/665: the rule in that article is replaced by another which involves a radical change vis-à-vis the automatic effect of the review. The initial automatic suspension is transformed into the automatic lifting of that suspension.
43.      It must be borne in mind, furthermore, that, in accordance with the provision at issue, the review body has no discretion to decide at that time whether or not to lift the automatic suspension: as I have stated, it will suffice for the contracting authority to have applied for that suspension in a timely manner and to have attached a document proving the decision to finance the project. During that stage of the interim proceedings, therefore, the review body may not weigh up, by itself, the public and private interests at stake.
44.      The (relative) autonomy enjoyed by the Member States when it comes to determining the detailed rules governing review procedures, within the limits laid down by Directive 89/665, may not subvert a mandatory rule of that directive, such as the rule pursuant to which an application for review leads to automatic suspension until such time as the review body adopts its decision.
2.      Hearing the applicant during that stage of the interim proceedings
45.      The incompatibility of the national provision at issue with Article 2 of Directive 89/665 becomes starker in light of the fact that the automatic suspension is lifted without hearing the other party, that is, without the applicant being able to make any submissions regarding the contracting authority’s request.
46.      The applicant’s absence from that stage of the procedure is incompatible with the basic rules governing review procedures laid down in Directive 89/665.
47.      The Portuguese Government submits that none of the nine paragraphs of Article 2 of Directive 89/665 provide that the applicant is to be heard where a court refuses to order interim measures such as the suspension of the award procedure. (19) The Portuguese Government further submits that that article leaves it to the discretion of the Member States to determine whether, and at what point, the applicant may intervene in cases in which the court takes the view that it must refuse to grant interim measures. (20)
48.      I believe that that approach is wrong: what is at stake here is, specifically, the removal of an essential procedural guarantee, as provided for in Article 2 of Directive 89/665 (that is, the automatic suspension of the award of the contract, which takes place at the applicant’s request). If the contracting authority, in turn, challenges that suspension and requests that it be lifted, the requirements of the inter partes principle mean that the other party must be heard before the court gives a decision on the matter.
49.      It could be argued that the applicant’s involvement is provided for in Article 25-A(5), (6) and (7) of Law No 30/2021, which would go some way to remedying the applicant’s previous (mandatory) absence. The Portuguese Government classifies that remedy as a ‘deferred inter partes mechanism’. (21)
50.      I believe, however, that participation ex post, whereby the applicant applies for the automatic suspension to be restored after the lifting of that suspension was ordered in its absence, is not sufficient to remedy the serious procedural defect to which I have referred above.
51.      The ‘deferred inter partes procedure’, to which the Portuguese Government refers, cannot, I repeat, act as a substitute for the prior involvement of the applicant, who lodged the application which led to the automatic suspension of the award decision. The applicant must, at the very least, be given the opportunity to make submissions before the lifting of that suspension is ordered.
52.      In any event, I do not understand why the formalities laid down in Article 25-A(5), (6) and (7) of Law No 30/2021 could not be carried out after the contracting authority has lodged its application to lift the suspension. (22) That application would be notified to the applicant, which would be able to make submissions in support of maintaining the suspension.
53.      In fact, in accordance with Article 103-A of the CPTA, which contains the common rules on the automatic suspensive effect of pre-contractual litigation, the applicant has a short period (five days) in which to respond to the application, lodged by the opposing party, to lift the automatic suspension of the contract award decision. That, therefore, respects the basic principle that proceedings should be inter partes.
54.      At the hearing, EDIA and the Portuguese Government argued that the new rules complied with the aim of harmonising the period laid down in the common public procurement legislation for conclusion of the contract (30
days) and the period laid down for deciding on the interim proceedings in relation to whether to lift definitively or maintain the suspension of the award decision. (23)
55.      Aside from the fact that that argument still does not explain why the other party is not heard first (it would suffice to allocate the time limits between the contracting authority and the applicant), it also shows that the model is somewhat inconsistent: unless I am mistaken, if the duration of the procedures is compared, the special procedure laid down in Article 25-A of Law No 30/2021 lasts for 28
days, whereas the decision in the general procedure laid down in the CPTA (depending on the diligence of the contracting authority when it lodges its application to have the automatic suspension lifted) may be given in only 13
days, including the days for hearing the other party.
3.      Intermediate conclusion
56.      The foregoing considerations lead me to propose a negative answer to the first question: a national provision which provides for the provisional lifting of the automatic suspensive effect associated with an application for review of a decision awarding a contract (a) without hearing the applicant who applied for the suspension of that decision, and (b) without allowing the court to weigh up, at that stage, the public and private interests at stake is incompatible with Article 2 of Directive 89/665.
D.      Second question referred
57.      In the first part of this question, the referring court seeks to ascertain whether ‘… the economic interest in a possible loss of European funds, on account of a delay in the implementation of a funded project, [constitutes] an overriding reason relating to the general interest justifying the lifting of automatic suspensive effect’.
58.      The answer to the question as it is worded depends on the stage of the procedure to which it should be deemed to refer:
–        If it refers to the second stage of the pre-contractual procedure (in other words, to the lifting of the suspension without hearing the other party and without any latitude for the court to weigh up the public and private interests concerned), I have already given the answer in my reply to the first question from the referring court: that mechanism is simply not compatible with Directive 89/665.
–        If, on the other hand, the question concerns the effect of the risk factor (possible loss of European funding for the project) on the final decision of the body required to rule on the application for interim measures, once the formalities laid down in paragraphs 5, 6 and 7 of Article 25-A of Law No 30/2021 have been completed, the situation is different and warrants a more detailed examination.
59.      The considerations I shall set out below concern that second situation.
60.      Article 2(5) of Directive 89/665 provides that the review body may take into account the probable consequences of interim measures for all interests likely to be harmed. (24)
61.      Those interests include: (a) those of rejected tenderers who are seeking to ensure that the public contract is not concluded, and (b) general interests, whether those aimed at ensuring that procedures for the award of public contracts are rapid and that administrative action is effective, or those aimed at preventing the loss of a source of funding for the contract itself.
62.      In accordance with Article 2(5) of Directive 89/665, the body required to give a final decision on an application for interim measures must weigh up the public and private interests at stake. Through that provision, I repeat, the EU legislature sought to reconcile the interests of rejected tenderers with those of the contracting authority (and also with those of the selected successful tenderer) and with other public interests.
63.      In the Portuguese Government’s submission, the legislation at issue pursues a general interest objective which is recognised by the European Union: ensuring that award procedures are rapid in order to execute, before 31 December 2025, projects of strategic importance to national development and thereby retain the European funding which was allocated to the Portuguese Republic for those projects.
64.      Admittedly, ensuring that public tendering procedures are carried out rapidly is a legitimate general interest objective. (25) However, it is not the only objective or the one which must be given priority in all cases.
65.      It is also legitimate for the Portuguese authorities, including the legislature, to endeavour not to lose the European funding allocated to certain contracts which rely on that type of funding. The potential financial loss derived from the risk of losing European funding is a public interest which the review body must take into account when it conducts its examination under Article 2(5) of Directive 89/665.
66.      That being so, the solution is that the review body should continue to have the power to weigh up the interests at stake, without the threat of losing European funding being the sole possible ground for lifting the suspension of the effects of the contract award decision.
67.      I agree with the Czech Government (26) that, where other considerations arising from the context of the contract (for example, its critical importance to defence, security or the deployment of essential infrastructure) exist in addition to the likelihood of losing European funding, the review body may, following an individual assessment under
Article 2(5) of Directive 89/665, conclude that those public interests outweigh the interest of tenderers and legitimately lift the suspensive effect.
68.      Those considerations lead me to exclude the risk of loss of funding from operating as an overriding reason relating to the general interest, which, in all cases and by definition, would tip the balance in favour of the contracting authority to the detriment of anyone lodging an appeal against its decisions. (27)
69.      If the protection of the public interest consisting in taking advantage of European funds were absolutely paramount, it could encourage opportunism on the part of contracting authorities, which, relying on that interest, would be tempted to award unlawfully public contracts for the execution of projects financed by European funds, in the knowledge that their award decisions would never be suspended.
70.      Interpreted in that way, Article 25-A(8) of Law No 30/2021 (which, as I have already pointed out, reproduces the wording of Article 103-A(4) of the CPTA) is not incompatible with Article 2(5) of Directive 89/665. The national provision grants the body required to decide on interim measures the power duly to weigh up the public and private interests at stake in order to assess whether the damage that would result from maintaining the suspensive effect is greater than that which would result from lifting it.
71.      In the course of that assessment, the review body may, admittedly, consider the periculum in mora (encapsulated as the risk that any delay would lead to the loss of funding), but also the remaining factors which are usually taken into account when deciding on interim measures. Those include an assessment of whether the challenge brought by the rejected tenderer appears to be well founded.
72.      At this juncture, it is helpful to reconsider whether Article 2d(3) of Directive 89/665 is of any use when it comes to answering the first part of the second question referred.
73.      Following its amendment by Directive 2007/66/EC, (28) in the case of contracts which should be declared ineffective in principle on account of their unlawful origin, Directive 89/665 (recitals 21 (29) and
22 (30) of Directive 2007/66 and Articles 2d and
2e of Directive 89/665, as amended) allows for the ‘recogni[tion of] some or all of [their] temporal effects’, that is, the effects of the contract are maintained, without prejudice to the imposition of appropriate penalties and the award of damages. (31)
74.      As I have already noted, Article 2d of Directive 89/665 applies to the post-contractual, not the pre-contractual, stage. Therefore, its provisions are not applicable to the system of interim measures laid down in Article 2 of that directive.
75.      If, nevertheless, a guiding principle were still sought in the wording of Article 2d(3) of Directive 89/665, it would be necessary to bear in mind that, under that provision:
–        A contract may not be considered ineffective, even though it has been awarded illegally, if overriding reasons relating to a general interest require that the effects of the contract should be maintained.
–        Economic interests in the effectiveness of the contract may only be considered as overriding reasons (relating to a general interest) if in exceptional circumstances ineffectiveness would lead to disproportionate consequences.
76.      The criteria laid down in Article 2d(3) of Directive 89/665 are intended to enable, under certain conditions, the continued existence of the effects of an unlawfully awarded contract. To that extent, those criteria are not applicable to a situation in which a court may suspend the effects of an award decision where the contract has not yet been concluded.
77.      This part of my answer is linked to the final query formulated by the referring court in its second question: ‘Is a mere economic loss a disproportionate consequence … compatible with the provisions of the second subparagraph of Article 2d(3) [of Directive 89/665]?’.
78.      Leaving aside the reference to Article 2d of Directive 89/665, for the reasons which I have already examined, it falls to the review body to weigh up the public and private interests at stake, in the light of all the circumstances of each case. No abstract solution exists which may be applied in general terms in order to determine whether one option (the lifting of the suspension) is more or less proportionate than the other (the maintenance of that suspension pending a decision on the application for review of the merits of the award of the contract).
V.      Conclusion
79.      In the light of
the foregoing considerations, I propose that the questions referred for a preliminary ruling by the Tribunal Administrativo e Fiscal do Porto (Administrative and Tax Court, Oporto, Portugal) should be answered as follows:
‘Article 2(3), (4) and (5) 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
must be interpreted as:
precluding national legislation pursuant to which, where it is merely demonstrated that a contract is financed or co-financed by European funds, a national court, at the request of a contracting authority, must provisionally lift the automatic suspensive effect of an application for review of the decision awarding a public contract;
not precluding national legislation pursuant to which a court seised of an application for interim measures has the power duly to weigh up all the public and private interests at stake in order to assess whether the damage which would result from maintaining the suspensive effect would be greater than that resulting from lifting that effect. Nothing precludes the inclusion among those public interests, as an additional but not necessarily overriding assessment criterion, of the prevention of the loss of European financing or co-financing of the construction project covered by the contract.’
1      Original language: Spanish.
2      The amendment was carried out by Lei n.º 43/2024, de 2 de dezembro, que altera a Lei n.º 30/2021, de 21 de maio, que aprova medidas especiais de contratação pública (Law No 43/2024 of 2 December 2024 amending Law No 30/2021 of 21 May 2021 adopting special measures on public procurement; ‘Law No 43/2024’). Law No 43/2024 inserted a number of articles (including Article 25-A) into Lei n.º 30/2021, de 21 de maio, que aprova medidas especiais de contratação pública e altera o Código dos Contratos Públicos, aprovado em anexo ao Decreto-Lei n.º 18/2008, de 29 de janeiro, o Código de Processo nos Tribunais Administrativos, aprovado em anexo à Lei n.º 15/2002, de 22 de fevereiro, e o Decreto-Lei n.º 200/2008, de 9 de outubro (Law No 30/2021 of 21 May 2021 adopting special measures on public procurement and amending the Public Contracts Code adopted as an annex to Decree-Law No 18/2008 of
29 January 2008, the Code of Procedure of the administrative courts adopted as an annex
to Law No 15/2002 of 22 February 2002, and Decree-Law No 200/2008 of 9 October 2008; ‘Law 30/2021’ or ‘Law 30/2021, amended in 2024’).
3      Council Directive 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).
4      Decreto-Lei n.º 18/2008, Código dos Contratos Públicos (Decree-Law No 18/2008) of 29 January 2008 (Diário da República, 1.ª série, n.º 20,
of
29 January 2008), as amended by Decreto-Lei n.º 111-B/2017 (Decree-Law No 111-B/2017) of 31 August 2017 (Diário da República, 1.ª serie,
n.º 168, 2.º suplemento, of
31 August 2017).
5      Lei n.º 15/2002, Código de Processo nos Tribunais Administrativos (Law No 15/2002, Code of Procedure of the administrative courts; ‘CPTA’) (Diário da República n.º 45/2002, I série-A, No 45,
of 22 February 2002).
6      ‘Empreitada de Construção da Central Fotovoltaica Flutuante da Estação Elevatória dos Álamos’ (contract concerning construction works for the floating solar power plant of the Os Álamos pumping station).
7      ‘Empreitada de Construção das Centrais Fotovoltaicas Flutuantes da Estação Elevatória de S. Pedro e da Estação Elevatória de S.Matias’ (contract concerning construction works for the floating solar power plants of the San Pedro and San Matías pumping stations).
8      In reality, that stage does not appear to have any specific characteristics vis-à-vis the general rules laid down in Article 103-A of the CPTA.
9      The provision refers only to the ‘defendant’, a term which I shall use below, in addition to ‘contracting authority’.
10      Recital 36 of Directive 2007/66.
11      Order of
23 April 2015, Commission v Vanbreda Risk & Benefits
(C‑35/15 P(R), EU:C:2015:275, paragraph 29), citing judgment of
11 September 2014, Fastweb (C‑19/13, EU:C:2014:2194, paragraph 60). Italics added.
12      In relation to that provision, I refer to my Opinion in
CROSS Zlín (C‑303/22, EU:C:2023:652, point 44
et seq.).
13      The rules on the standstill period are laid down in detail in Article 2a.
14      That obligation of the court arises where two procedural conditions are fulfilled: the response must have taken place within a specified period (10 working days from notification of the award) and a document proving the decision to finance the project must have been attached.
15      Article 2(4) of Directive 89/665 is unequivocal: ‘Except where provided for in paragraph 3 and Article 1(5), review procedures need not necessarily have an automatic suspensive effect on the contract award procedures to which they relate.’
Accordingly, by contrary inference, in the situation referred to in Article 2(3) of Directive 89/665,
the suspensive effect of the review is automatic.
16      Judgment of 11 September 2014, Fastweb
(C‑19/13, EU:C:2014:2194, paragraphs 34 and 59).
17      At the hearing, the Portuguese Government argued that a rejected tenderer always has the option of bringing proceedings to establish financial liability in order to recover the losses caused by performance of the contract. In that respect, the Commission argued that Article 2
of Directive 89/665 requires Member States to ensure not only that persons harmed by an infringement may obtain compensation but also that interim measures to correct the infringement are adopted as soon as possible by way of an interlocutory procedure. If absolute priority were given to the interest represented by the loss of European funding, Article 2(1)(a) of Directive 89/665, read in the light of Article 2(5) thereof, would be deprived of substance: it may be inferred from both provisions
that, when such interim measures are adopted, all potentially harmed interests must be weighed up.
18      The Portuguese Government stated that the lifting of the automatic suspension means that it is possible to proceed with the formalities relating to the signing of the contract and for it to be concluded and executed. The Portuguese Government added that, however, in practice, those steps take some time so that, in the meantime, it will have been possible to decide on the merits of the interim measure sought.
19      Paragraph 23
of the Portuguese Government’s written observations.
20      Paragraph 24
of the Portuguese Government’s written observations.
21      Paragraph 25
of the Portuguese Government’s written observations.
22      At the hearing, the Portuguese Government gave the need to expedite the procedure as the sole (unsatisfactory) explanation for that measure.
23      The argument was based on the premiss that Portuguese courts comply strictly with the procedural time limits and decide on interim proceedings before the expiry of the 30-day period laid down in the legislation on public contracts. I-Sete disputed that this is what happens in practice.
24      Judgment of
18 January 2024, CROSS Zlín (C‑303/22, EU:C:2024:60, paragraphs 61 and 62).
25      ‘The interest in the conclusion of public contracts without excessive delay constitutes such a public interest’ (judgment of 18 January 2024, CROSS Zlín, C‑303/22, EU:C:2024:60, paragraph 62). However, in relation to the duty to inform interested parties of the limitation periods applicable to certain decisions of the contracting authority with sufficient clarity, the Court has held that
‘the failure to provide such information cannot be justified on grounds of procedural rapidity’ (judgment of
28 January 2010, Commission v Ireland, C‑456/08, EU:C:2010:46, paragraph 63).
26      Paragraph 18
of the Czech Government’s written observations.
27      At the hearing, the Portuguese Government, after asserting that the balancing exercise covers all the interests involved, stated that some courts were attaching predominant weight to the risk of loss of European financing or co-financing. I-Sete explained that the courts had moved from conducting a full balancing exercise to assessing the risk of loss of European financing as an exceptional and prevailing factor.
28      Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 (OJ 2007 L 335, p. 31).
29      ‘National law may …, for example, provide for the retroactive cancellation of all contractual obligations (ex tunc) or conversely limit the scope of the cancellation to those obligations which would still have to be performed (ex nunc).’
30      ‘… Member States may grant the body responsible for review procedures the possibility of not jeopardising the contract or of recognising some or all of its temporal effects, when the exceptional circumstances of the case concerned require certain overriding reasons relating to a general interest to be respected …’.
Italics added.
31      I
repeat here the considerations I set out in the Opinion in
CROSS Zlín (C‑303/22, EU:C:2023:652, point 80).