Judgment of the Court (Eighth Chamber) of 14 July 2022 (requests for a preliminary ruling from the Bundesverwaltungsgericht — Austria) — EPIC Financial Consulting Ges.m.b.H. v Republic of Austria, Bundesbeschaffung GmbH

(Joined Cases C-274/21 and C-275/21) (1)

(Reference for a preliminary ruling - Public procurement - Regulation (EU) No 1215/2012 - Not applicable to procedures for granting an interlocutory injunction and review procedures as referred to in Article 2 of Directive 89/665/EEC in the absence of an international element - Directive 2014/24/EU - Article 33 - Treatment of a framework agreement as a contract, for the purposes of Article 2a(2) of Directive 89/665 - Not possible to award a new public contract where the quantity and/or maximum value of the works, supplies or services concerned laid down by the framework agreement has or have already been reached - National legislation providing for the payment of fees for access to administrative proceedings in the field of public procurement - Obligations to determine and pay the fees for access to proceedings before the court rules on an application for an interlocutory injunction or an action for review - Non-transparent procedure for the award of a public contract - Principles of effectiveness and equivalence - Effectiveness - Right to an effective remedy - Directive 89/665 - Articles 1, 2 and 2a - Article 47 of the Charter of Fundamental Rights of the European Union - National legislation providing for the dismissal of an action for review where the fees for access to proceedings have not been paid - Determination of the estimated value of a public contract)

(2022/C 359/07)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: EPIC Financial Consulting Ges.m.b.H.

Defendants: Republic of Austria, Bundesbeschaffung GmbH

Operative part of the judgment

1. Article 1(1) 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 2014/23/EU of the European Parliament and of the Council of 26 February 2014, must be interpreted as meaning that the conclusion of a framework agreement with a single economic operator, in accordance with Article 33(3) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, corresponds to the conclusion of a contract as referred to in Article 2a(2) of Directive 89/665, as amended by Directive 2014/23.

2. Article 33(3) of Directive 2014/24 must be interpreted as meaning that a contracting authority may no longer rely, for the purpose of awarding a new contract, on a framework agreement in respect of which the quantity and/or maximum value of the works, supplies or services concerned laid down therein has or have already been reached, unless the award of that contract does not entail a substantial modification of that framework agreement, as provided for in Article 72(1)(e) of that directive.

3. The principle of equivalence must be interpreted as not precluding national legislation which lays down, in respect of applications for an interlocutory injunction and actions for review relating to a procedure for the award of a public contract, procedural rules that are different from those which apply, inter alia, to civil proceedings.

4. Article 1(1) of Directive 89/665, as amended by Directive 2014/23, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding national legislation requiring a litigant to identify, in his or her application for an interlocutory injunction or action for review, the procedure for the award of a public contract concerned and the separately contestable decision that he or she is challenging, where the contracting authority has opted for a procedure for the award of a public contract without prior publication of a contract notice and the contract award notice has not been published yet.

5. Article 2(1) of Directive 89/665, as amended by Directive 2014/23, read in the light of Article 47 of the Charter of Fundamental Rights, must be interpreted as: — precluding national legislation which requires a court with which an application for an interlocutory injunction is lodged seeking to prevent purchases on the part of the contracting authority, to determine, before ruling on that application, the type of contract award procedure concerned, the (estimated) value of the contract at issue and the total number of separately contestable decisions and, where appropriate, the lots from the contract award procedure concerned, for the sole purpose of calculating the amount of the flat-rate court fees which the person making that application must pay, failing which that application would be dismissed on that ground alone, where the contracting authority has opted for a procedure for the award of a public contract without prior publication of a contract notice and, at the time the action for annulment against a decision linked to that procedure is brought, the contract award notice has not been published yet; — not precluding national legislation which requires a court before which an action for the annulment of a separately contestable decision taken by the contracting authority is brought to determine, before ruling on that action, the type of contract award procedure concerned, the (estimated) value of the contract at issue and the total number of separately contestable decisions and, where appropriate, the lots from the contract award procedure concerned, for the sole purpose of calculating the amount of the flat-rate court fees which the applicant must pay, failing which his or her action would be dismissed on that ground alone.

6. Article 47 of the Charter of Fundamental Rights must be interpreted as precluding national legislation which requires a litigant lodging an application for an interlocutory injunction or an action for review to pay flat-rate court fees of an amount impossible to foresee, where the contracting authority has opted for a procedure for the award of a public contract without prior publication of a contract notice or, as the case may be, without subsequent publication of a contract award notice, with the result that it can be impossible for the litigant to ascertain the estimated value of the contract and the number of separately contestable decisions adopted by the contracting authority on the basis of which those fees were calculated.

(1) OJ C 320, 9.8.2021.