Case C‑689/13

Puligienica Facility Esco SpA (PFE)

v

Airgest SpA

(Request for a preliminary ruling from the Consiglio di giustizia amministrativa per la Regione siciliana)

‛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’

Summary — Judgment of the Court (Grand Chamber), 5 April 2016

Questions referred for a preliminary ruling — Reference to the Court — Jurisdiction of national courts — Scope — National legislation requiring a chamber of a national court of final instance to refer a matter to the plenary session of that court if it disagrees with a position adopted by the plenary session — Impossible for the court properly seised in accordance with national law to request a preliminary ruling from the Court of Justice — Not permissible

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 — Access to review procedures — National procedural rules under which the action brought by a tenderer for the exclusion of another tenderer is dismissed as inadmissible as the counterclaim lodged by the other tenderer was examined by the court first — Not permissible

The third subparagraph of Article 1(1) and Article 1(3) 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, 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 First, each of the parties to the proceedings has a legitimate interest in the exclusion of the bids submitted by the other competitors. Second, it cannot be ruled out that one of the irregularities justifying the exclusion of both the successful tenderer’s bid and that of the tenderer challenging the contracting authority’s decision may also vitiate the other bids submitted in the tendering procedure, which may result in that authority having to launch a new procedure. The number of participants in the public procurement procedure concerned as well as the number of participants who have instigated review procedures and the differing legal grounds relied on by those participants are irrelevant. (see paras 28-30, operative part 1)

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. National courts have the widest discretion in referring questions to the Court involving interpretation of relevant provisions of EU law, that discretion being replaced by an obligation for courts of final instance, subject to certain exceptions. A rule of national law cannot prevent a national court, where appropriate, from using that discretion, or complying with that obligation. Both that discretion and that obligation are an inherent part of the system of cooperation between the national courts and the Court of Justice established by Article 267 TFEU and of the functions of the court responsible for the application of EU law entrusted by that provision to the national courts. As a consequence, where a national court before which a case is pending considers that a question concerning the interpretation or validity of EU law has arisen in that case, it has the discretion, or is under an obligation, to request a preliminary ruling from the Court of Justice, and national rules imposed by legislation or case-law cannot interfere with that discretion or that obligation. (see paras 32-34, 36, operative part 2)