Judgment of the Court (Grand Chamber) of 5 April 2016 (request for a preliminary ruling from the Consiglio di giustizia amministrativa per la Regione siciliana — Italy) — Puligienica Facility Esco SpA (PFE) v Airgest SpA

(Case C-689/13) (1)

((Reference for a preliminary ruling - Public service contracts - Directive 89/665/EEC - Article 1(1) and (3) - Review procedures - Application for annulment of the decision awarding a public contract by a tenderer whose bid was not successful - Counterclaim brought by the successful tenderer - Rule derived from national case-law under which the counterclaim must be examined first and, if the counterclaim is well founded, the main action must be dismissed as inadmissible without any examination of the merits - Whether compatible with EU law - Article 267 TFEU - Principle of the primacy of EU law - Principle of law stated by decision of the plenary session of the supreme administrative court of a Member State - National legislation which provides that that decision is binding on the chambers of that court - Obligation on the part of the chamber required to adjudicate on a question of EU law to refer that question to the plenary session if it disagrees with the decision of the plenary session - Whether the chamber has a discretion or is under an obligation to request a preliminary ruling from the Court of Justice))

(2016/C 211/04)

Language of the case: Italian

Referring court

Consiglio di giustizia amministrativa per la Regione siciliana

Parties to the main proceedings

Applicant: Puligienica Facility Esco SpA (PFE)

Defendant: Airgest SpA

Intervening parties: Gestione Servizi Ambientali Srl (GSA), Zenith Services Group Srl (ZS)

Operative part of the judgment

1. The third subparagraph of Article 1(1) and Article 1(3) 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, as amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007, are to be interpreted as meaning that a main action for review brought by a tenderer with an interest in obtaining a particular contract who has been or may be adversely affected by an alleged breach of EU public procurement law or rules transposing that law, with a view to excluding another tenderer, cannot be dismissed as inadmissible under national procedural rules which provide that the counterclaim lodged by the other tenderer must be examined first.

2. Article 267 TFEU must be interpreted as precluding a provision of national law, in so far as that provision is interpreted to the effect that, where a question concerning the interpretation or validity of EU law arises, a chamber of a court of final instance must, if it does not concur with the position adopted by decision of that court sitting in plenary session, refer the question to the plenary session and is thus precluded from itself making a request to the Court of Justice for a preliminary ruling.

3. Article 267 TFEU is to be interpreted as meaning that, after receiving the answer of the Court of Justice of the European Union to a question concerning the interpretation of EU law which it has submitted to the Court, or where the case-law of the Court of Justice of the European Union already provides a clear answer to that question, a chamber of a court of final instance is itself required to do everything necessary to ensure that that interpretation of EU law is applied.

(1) OJ C 112, 14.4.2014.