Case C‑61/14

Orizzonte Salute — Studio Infermieristico Associato

v

Azienda Pubblica di Servizi alla persona San Valentino — Città di Levico Terme and Others

(Request for a preliminary ruling from the Tribunale regionale di giustizia amministrativa di Trento)

‛Reference for a preliminary ruling — Directive 89/665/EEC — Public procurement — National legislation — Fees for access to administrative proceedings in the field of public procurement — Right to an effective remedy — Dissuasive fees — Judicial review of administrative decisions — Principles of effectiveness and equivalence — Effectiveness’

Summary — Judgment of the Court (Fifth Chamber), 6 October 2015

Approximation of laws — Review procedures in respect of the award of public supply and public works contracts — Directive 89/665 — Member States’ duty to provide for a review procedure — Fixing of the court fees — National legislation providing for the charging of multiple court fees to an individual who brings several actions against the same award procedure — Whether permissible — Conditions

Approximation of laws — Review procedures in respect of the award of public supply and public works contracts — Directive 89/665 — Member States’ duty to provide for a review procedure — Fixing of the court fees — Member States’ discretion — Limits — Observance of the principles of equivalence and effectiveness and observance of the effectiveness of Directive 89/665

See the text of the decision. (see para. 32)

In relation to preliminary rulings, the parties to the main proceedings are, according to Article 97(1) of the Rules of Procedure, determined as such by the national court or tribunal in accordance with national rules of procedure. Consequently, it is for that court to determine, in accordance with national rules of procedure, the parties to the main proceedings pending before it. It is not for the Court of Justice to determine whether a decision of the national court accepting an intervention before it has been taken in accordance with those rules. The Court must abide by such a decision in so far as it has not been overturned in any appeal procedures provided for by national law. However, the capacity of ‘party to the main proceedings’ within the meaning of Article 96(1) of the Rules of Procedure read in conjunction with Article 23 of the Statute of the Court of Justice cannot be accorded to a person and that person cannot be admitted in proceedings before the Court referred to in Article 267 TFEU where that person submits to a national court an application to intervene not in order to play an active role in the continuation of the proceedings before the national authority, but for the sole purpose of participating in the proceedings before the Court. In addition, the Court may find it necessary to allow an intervener admitted to the main proceedings to submit written observations only within the time limit applicable to the interested parties, for the purpose of Article 23 of the Statute of the Court, to which the request for a preliminary ruling was initially notified. It would be incompatible with the principle of the sound administration of justice and the requirement that requests for a preliminary ruling be dealt with within a reasonable period of time if, on account of the successive admission of interveners and the period of two months laid down in the second paragraph of Article 23 of the Statute of the Court for the submission of the written observations of those interveners, the written procedure before the Court could not be closed or the procedure had to be reopened. (see paras 32, 33, 35, 37, 39)

Directive 89/665 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, does not contain any provision relating specifically to the court fees to be paid by individuals when they bring, in accordance with Article 2(1)(b) of that directive, an action for annulment against an allegedly unlawful decision concerning a procedure for the award of public contracts. In that regard, in the absence of EU rules governing the matter, it is for each Member State, in accordance with the principle of the procedural autonomy of the Member States, to lay down the detailed rules of administrative and judicial procedures governing actions for safeguarding rights which individuals derive from EU law. Those detailed procedural rules must, however, be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness). In addition, since such court fees amount to detailed procedural rules governing actions for safeguarding rights conferred by EU law on candidates and tenderers harmed by decisions of contracting authorities, they must not compromise the effectiveness of Directive 89/665. Similarly, Article 1 of the directive must be interpreted in the light of the fundamental rights set out in the Charter of Fundamental Rights of the European Union, in particular the right to an effective remedy before a court or tribunal, laid down in Article 47 thereof. (see paras 45-47, 49)

Article 1 of Directive 89/665 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, and the principles of equivalence and effectiveness must be interpreted as not precluding national legislation which requires the payment of court fees such as a standard fee, determined in proportion to the sum involved in the dispute, when an action relating to public procurement is brought before administrative courts. Where national legislation provides that the court fees to be paid for bringing an action in administrative proceedings relating to public procurement do not exceed 2% of the value of the contract concerned, such fees are not liable to render practically impossible or excessively difficult the exercise of rights conferred by EU public procurement law. In addition, since that standard fee is imposed without distinction, as to its form and its amount, with regard to all individuals intending to bring an action against a decision adopted by contracting authorities, such a system does not give rise to discrimination between operators practising in the same sector of activity. With regard to the principle of equivalence, the fact that, in the context of procedures for the award of public contracts, the standard fee to be paid is larger than (i) the amounts to be paid for administrative disputes subject to ordinary proceedings and (ii) the court fees charged in civil proceedings cannot in itself demonstrate an infringement of that principle. That principle requires that actions based on an infringement of national law and similar actions based on an infringement of EU law be treated equally and not that there be equal treatment of national procedural rules applicable to proceedings of a different nature such as civil proceedings, on the one hand, and administrative proceedings, on the other, or applicable to proceedings falling within two different branches of law. (see paras 58, 62, 63, 66, 67, 79, operative part 1)