Case C‑19/13

Ministero dell’Interno

v

Fastweb SpA

(Request for a preliminary ruling from the Consiglio di Stato)

‛Reference for a preliminary ruling — Public procurement — Directive 89/665/EEC — Article 2d(4) — Interpretation and validity — Procedures for review of the award of public supply and public works contracts — Ineffectiveness of the contract — Exception’

Summary — Judgment of the Court (Fifth Chamber), 11 September 2014

Approximation of laws — Review procedures in respect of the award of public supply and public works contracts — Directive 89/665 — Award of contracts — No prior publication of a contract notice in the Official Journal of the European Union — Consequence — Maintenance of the effects of an awarded contract if other conditions are satisfied — Infringement of the right to an effective remedy and the principle of non-discrimination — None

(Charter of Fundamental Rights of the European Union, Art. 47; European Parliament and Council Directive 2004/18; Council Directive 89/665, as amended by Directive 2007/66, Arts 1(1), third para., 2d(4), 3a and 31( 1)(b))

On a proper construction of Article 2d(4) 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, where a public contract is awarded without prior publication of a contract notice in the Official Journal of the European Union, but that was not permissible under Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, the contract may not be declared ineffective if the conditions laid down in that provision are in fact satisfied, which it is for the referring court to determine.

In that regard, in order to attain the objectives referred to in the third subparagraph of Article 1(1) of Directive 89/665, including the availability of effective remedies against decisions taken by contracting authorities in breach of public procurement law, it is important that the body responsible for the review procedure should, when verifying whether the conditions laid down in Article 2d(4) of Directive 89/665 have been fulfilled, carry out an effective review. Specifically, as regards the condition laid down in the second indent of Article 2d(4) of Directive 89/665 relating to publication in the Official Journal of the European Union of a notice announcing the contracting authority’s intention to conclude the contract, the notice must contain a justification disclosing clearly and unequivocally the reasons that moved the contracting authority to consider it legitimate to award the contract without prior publication of a contract notice, so that interested persons are able to decide with full knowledge of the relevant facts whether they consider it appropriate to bring an action before the review body and so that the review body is able to undertake an effective review.

Furthermore, the review body is under a duty to determine whether, when the contracting authority took the decision to award a contract by means of a negotiated procedure without prior publication of a contract notice, it acted diligently and whether it could legitimately hold that the conditions laid down in Article 31(1)(b) of Directive 2004/18 were in fact satisfied.

In addition, Article 2d(4) of Directive 89/665 is not contrary to either the requirements flowing from Article 47 of the Charter of Fundamental Rights of the European Union or the principle of non-discrimination. In fact, in providing for the publication in the Official Journal of the European Union of a notice, the provision is designed to ensure that all the candidates potentially concerned are in a position to take cognisance of the contracting authority’s decision to award the contract without prior publication of a contract notice. Moreover, in accordance with the third indent of that provision, the contracting authority must observe a 10-day standstill period. The interested parties are thus given an opportunity to challenge the award of a contract before the courts before the contract is concluded.

(see paras 46-48, 50, 54, 61, 64, 65, operative part 1)