CELEX: 62008CC0570
Language: en
Date: 2010-06-01 00:00:00
Title: Opinion of Mr Advocate General Cruz Villalón delivered on 1 June 2010.#Symvoulio Apochetefseon Lefkosias v Anatheoritiki Archi Prosforon.#Reference for a preliminary ruling: Anotato Dikastirio tis Kypriakis Dimokratias - Cyprus.#Public contracts - Directive 89/665/EEC - Article 2(8) - Body responsible for review procedures that is not judicial in character - Annulment of the contracting authority’s decision to accept a tender - Possibility for the contracting authority to appeal against that annulment before a judicial body.#Case C-570/08.

OPINION OF ADVOCATE GENERAL
      CRUZ VILLALÓN
      delivered on 1 June 2010 1(1)
      
      Case C‑570/08
      Simvoulio Apokhetevseon Lefkosias
      v
      Anatheoritiki Arkhi Prosforon
      (Reference for a preliminary ruling from the Anotato Dikastirio Kiprou (Supreme Court of Cyprus))
      (Public works and public supply contracts – Review procedures for awards – Interpretation of Article 2(8) of Council Directive 89/665/EEC – Right of the contracting authority to challenge before the courts the decisions of the body, not judicial in character, responsible
         for review procedures)
      
      I –  Introduction
      1.        The Anotato Dikastirio Kiprou (Supreme Court of Cyprus), acting as a court of first instance, (2) asks the Court of Justice whether it can be inferred from Article 2(8) of Directive 89/665/EEC (3) (‘Directive 89/665’ or ‘the Directive’) that the contracting authority for a public contract has a right to challenge before
         the courts the annulment of its decision by the administrative body responsible for the supervision of review procedures.
         
      
      II –  Legal framework
      A –    Directive 89/665
      2.        Pursuant to Article 1(1), ‘Member States shall take the measures necessary to ensure that, as regards contract award procedures
         falling within the scope of Directives 71/305/EEC, 77/62/EEC and 92/50/EEC, decisions taken by the contracting authorities
         may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in the following
         Articles, and, in particular, Article 2(7) on the grounds that such decisions have infringed Community law in the field of
         public procurement or national rules implementing that law.’ (4)
      
      3.        Article 1(3) states: 
      
      ‘The Member States shall ensure that the review procedures are available, under detailed rules which the Member States may
         establish, at least to any person having or having had an interest in obtaining a particular public supply or public works
         contract and who has been or risks being harmed by an alleged infringement. In particular, the Member States may require that
         the person seeking the review must have previously notified the contracting authority of the alleged infringement and of his
         intention to seek review.’
      
      4.        Article 2(8) provides:
      
      ‘Where bodies responsible for review procedures are not judicial in character, written reasons for their decisions shall always
         be given. Furthermore, in such a case, provision must be made to guarantee procedures whereby any allegedly illegal measure
         taken by the review body or any alleged defect in the exercise of the powers conferred on it can be the subject of judicial
         review or review by another body which is a court or tribunal within the meaning of Article 177 of the EEC Treaty and independent
         of both the contracting authority and the review body.
      
      …’ (5)
      
      B –    Cypriot law
      5.        Under Article 146.2 of the Constitution of the Republic of Cyprus, a request for judicial review of the acts or omissions
         of the Administration ‘may be made by any person whose existing legitimate interests, as an individual or as a member of a
         community, are adversely and directly affected by the decision, act or omission’. 
      
      6.        Law No 101(I)/2003 on the Award of Contracts (supply, works and services), as amended by Law No 181(I)/2004, was enacted in
         order to bring Cypriot legislation into line with European Union law, including Directive 89/665 and, to that end, Article
         55 created the Anatheoritiki Arkhi Prosforon (tenders review authority, ‘the review authority’) and Article 56 gave it jurisdiction
         to hear ‘hierarchical appeals’ against the decisions of contracting authorities. Article 60 of that law, as amended by Law
         No 181(I)/2004, provides: ‘Interested parties who believe that they have been wronged by the decision of the [the review authority]
         shall be entitled to seek a review by the Anotato Dikastirio in accordance with Article 146 of the Constitution. The contracting
         authority shall also be entitled to seek a review by the Anotato Dikastirio pursuant to Article 146 initially of the Constitution
         where, on the basis of adequate documentary evidence, the decision of the review authority can be regarded as unfair to the
         aforementioned authority.’
      
      7.        As will be seen, this provision has been the subject of a declaration by the Anotato Dikastirio which is particularly relevant
         to this case.
      
      III –  Background to the national proceedings and the question referred 
      8.        In June 2003, the Simvoulio Apokhetevseon Levkosias (Nicosia sewerage board, ‘the Simvoulio’), (6) acting as a contracting authority, published a tender notice for the design, construction, operation and maintenance, for
         a period of 10 years, of a wastewater treatment plant in Anthoupolis.
      
      9.        Among the preselected tenderers were the Degremont SA & Atlas Pantou Co Ltd consortium (‘Degremont’) and the WTE BAMAG consortium.
         
      
      10.      The respective tenders having been submitted, the Simvoulio informed Degremont of its decision to award the contract to the
         WTE BAMAG consortium. 
      
      11.      On 7 October 2005 Degremont appealed against that decision to the review authority, and sought an interim measure suspending
         the operation of the Simvoulio’s decision, given that the latter would entail the definitive award of the contract. The date
         of 13 October 2005 was set for the interim hearing but, as merely applying for the interim measure did not (at the time the
         events took place) give rise to any suspension of operation, the Simvoulio in fact awarded the contract to the WTE BAMAG consortium
         before the review authority gave its decision on the application for suspension.
      
      12.      On 14 February 2006, the review authority gave its decision in the substantive case, annulling the Simvoulio’s decision. (7)
      
      13.      WTE BAMAG did not bring legal proceedings challenging that decision before the Anotato Dikastirio. The Simvoulio, by contrast,
         did so (8) on 31 March 2006, relying on Article 146.2 of the Constitution and Article 60 of Law No 101(I) /2003 on the Award of Contracts
         for the purposes of locus standi.
      
      14.      While this case was still pending, the Anotato Dikastirio, sitting in full court, delivered its judgment of 10 December 2007
         in another case (9) involving the same parties. In it, the Anotato Dikastirio rejected the argument that the Simvoulio, as a contracting authority,
         had a legitimate interest in calling for review of the annulment decision of the review authority because, in summary, (1)
         the latter decision forms part of a complex award procedure, (2) the review authority is a second-instance administrative
         body (of higher instance) in relation to the Simvoulio, for which reason one part of the administration cannot have a legitimate
         interest as against another part of the administration, (3) contracting authorities protect the public interest but have no
         interests of their own and, (4) Article 60 of Law No 101(I) /2003 cannot grant a right to review to the contracting authority
         if such a right is not recognised by Article 146.2 of the Constitution. 
      
      15.      The Anotato Dikastirio (in case 629/2006), as court of first instance, mindful of the case-law laid down by the full court
         and in view of the fact that that case-law contained no analysis of the Cypriot legislation in the light of Directive 89/665,
         stayed the proceedings and referred the matter to the Court of Justice for a preliminary ruling in the following terms: 
      
      ‘To what extent does Article 2(8) of Directive 89/665/EC recognise contracting authorities as having a right to judicial review
         of annulment decisions by bodies responsible for review procedures, when those bodies are not judicial in character?’
      
      IV –  The proceedings before the Court of Justice
      16.      The order for reference was lodged with the Court Registry on 22 December 2008.
      
      17.      The Simvoulio, the Czech Government and the Commission call for a positive response from the Court of Justice to the question
         referred by the Anotato Dikastirio, to the effect that Article 2(8) of Directive 89/665 does recognise the right of contracting
         authorities to judicial review of decisions by bodies responsible for review procedures.
      
      18.      In the view of the review authority, Directive 89/665 provides protection for undertakings but not for contracting authorities,
         for they cannot be regarded as having separate interests for the purposes of taking judicial action against the bodies responsible
         for reviewing their decisions. 
      
      19.      At the hearing on 25 March 2010, the representatives of the Simvoulio, the review authority and the Commission presented their
         oral submissions.
      
      V –  The substance of the case
      20.      The reference for a preliminary ruling from the Anotato Dikastirio raises the question, for the first time in the case-law
         of the Court of Justice, whether, on the basis of Directive 89/665, a contracting authority must have the right to contest
         the decisions of another public body charged with the review of that authority’s decisions, when, without prejudice to the
         public nature of both bodies, they have separate legal personalities, belong, in addition, to different branches of administration
         and, in terms of function, perform different tasks. 
      
      21.      The answer to this question must be prefaced by some thoughts on the structure of the actions for review contemplated by Directive 89/665,
         before going on to analyse the scope of Article 2(8) of the Directive, which is relied on here.
      
      22.      As early as in the third recital in the preamble to the directive, it is pointed out that ‘the opening-up of public procurement
         to Community competition necessitates a substantial increase in the guarantees of transparency and non-discrimination; … for
         it to have tangible effects, effective and rapid remedies must be available in the case of infringements of Community law
         in the field of public procurement or national rules implementing that law’, and this statement is consistent with the ‘substantive’
         measures (10) coordinating public procurement procedures within the Community.
      
      23.      The Member States enjoy a wide discretion when it comes to implementing the review systems contained in the directive, which
         ‘lays down only the minimum conditions to be satisfied by the review procedures established in domestic law to ensure compliance
         with the requirements of Community law concerning public contracts’. (11)
      
      24.      That is why, to take but one example, the directive contains no provision specifically covering time-limits for the applications
         for review which it seeks to establish. (12)
      
      25.      In particular, and most significantly for our present purposes, with regard to the point made above, the directive ensures
         only that the review procedures provided for by the Directive are available ‘at least’ to any person having or having had
         an interest in obtaining a particular public contract and who has been, or risks being, harmed by an alleged infringement
         of the Community law concerning public contracts or of the national rules transposing that law. (13)
      
      26.      In any event, the European Union directive intended the final review of legality in the field of public procurement to rest
         with a judicial body, (14) either directly, where the first review body is a court or judge, or indirectly, where the courts have the power to hear
         and determine an action brought against the decision of any administrative review body which may have been created. The latter
         is the model used in Cyprus, where jurisdiction to hear actions contesting the acts of the administrative body created there
         (the review authority) is conferred on the Anotato Dikastirio (Supreme Court).
      
      27.      However, as soon as the Directive makes it possible for an intermediate body to be responsible for ruling on the merits of
         actions challenging decisions of the contracting authority, it obviously gives rise to the possibility that the raison d’être of judicial review, necessarily subsequent, may to a certain extent be altered. In such a case, in judicial review proceedings,
         what is reviewed is the correctness of the decision of the administrative body, whether upholding or annulling the award in
         question, at the request of whoever is entitled to call for review in each particular case. 
      
      28.      This consideration demonstrates that the issue raised in this reference for a preliminary ruling would, by definition, not
         exist in those national legal systems which have not opted for administrative review bodies but have instead chosen judicial
         review as the direct and only route. In that situation, contracting authorities can only be defendants. By contrast, when
         judicial proceedings are taken against the annulment decision of an administrative review body, there is the possibility that,
         apart from the undertakings detrimentally affected by the annulment decision, contracting authorities may seek to appear as
         applicants.
      
      29.      That is why, in the present case, the Simvoulio, possibly in an attempt to prevent a potential claim for damages against it,
         seeks judicial review of the review authority’s annulment of the award of the contract to a particular tenderer.
      
      30.      It is therefore necessary to examine whether, on the basis of this approach, the Simvoulio is entitled to the right of review
         it has claimed.
      
      31.      In my view, the locus standi of the contracting authority to bring an action before a judicial body to contest the act of an administrative review body
         annulling its decision is not required by Directive 89/665 and cannot be inferred from it.
      
      32.      First of all, the seventh and eighth recitals in the preamble, taken together, do not exactly militate in favour of construing
         access to of judicial review for contracting authorities as a requirement of the directive. Those recitals make express provision
         for review only for undertakings, and include the remark that when undertakings do not seek review, ‘certain infringements
         may not be corrected’.
      
      33.      Secondly, by stating that it is necessary for the decisions of contracting authorities to be effectively reviewed, Article
         1(1) of Directive 89/665 specifically recognises that contracting authorities can be defendants, but it is not possible to
         infer from any other provision of the directive that they have any locus standi to bring an action.
      
      34.      Finally, this rather restrictive approach is confirmed by Article 1(3) of the directive, since the relevant review may be
         sought by ‘at least’, any person ‘having or having had an interest in obtaining a particular public supply or public works
         contract and who has been or risks being harmed by an alleged infringement’, which would seem to at least leave open the possibility
         that contracting authorities are excluded. Furthermore, the provision does not appear to have contracting authorities in view,
         given that it authorises the Member States to introduce a duty on the person seeking the review to give prior notice to ‘the
         contracting authority of the alleged infringement and of his intention to seek review’.
      
      35.      However, it is true to say that, by the time we reach Article 2(8), the language of the directive appears more open and, unlike
         in other parts of the directive, there is no express reference to tenderers (that is, to the person having an interest in
         obtaining a contract), which seemingly is the basis for the Simvoulio’s argument that, as a contracting authority, it has
         a right to review.
      
      36.      The representative of the Simvoulio in fact claimed at the hearing that, comparing Article 1(3) with Article 2(8) of Directive 89/665,
         the two provisions are not contradictory. In his view, while the latter refers only to reviews sought before a judicial body
         (or a body which is judicial for the purposes of Article 267 TFEU), the former also contemplates the possibility of seeking
         review before a non‑judicial body which is responsible in this respect, relating exclusively to the decision of the contracting
         authority. The reason is that it would be inconceivable for a contracting authority to seek review of its own decision, in
         contrast to the situation covered by Article 2(8). 
      
      37.      However, this element of ambiguity in Article 2(8) of the Directive is not enough, in my view, to alter the foregoing considerations.
         Article 2(8) merely creates the possibility that an administrative body might, initially, be responsible for the review and,
         in any event, it introduces the requirement, in the terms already mentioned, that in these circumstances there must be a review
         of its decisions, either of a strictly judicial nature or before a body which is equivalent for the purposes of Article 267
         TFEU to a judicial body, without specifying once again which persons have locus standi to seek such review. 
      
      38.      Finally, it is necessary to dismiss the argument raised by the Simvoulio, and supported by the Commission, to the effect that
         if it is not accepted that the Simvoulio has capacity to bring proceedings, the opportunity to apply European Union law directly
         and uniformly could be blocked because the chance to refer a question for a preliminary ruling would be lost in situations,
         such as the present case, where no undertaking seeks judicial review of the decision.
      
      39.       On the one hand, the possible further opportunity to clarify European Union law cannot directly determine how the specific
         question of locus standi is to be settled, for this falls within the realm of the procedural autonomy of Member States. Moreover, it is to be expected
         that, in normal circumstances, when annulments appear to have no basis in law, it would be the tenderers which contested them,
         thereby creating an opportunity for a reference for a preliminary ruling. 
      
      40.      In any event, by way of safeguard, Article 3 of the Directive itself provides the Commission with a ‘specific mechanism’ where
         it considers that a clear and manifest infringement has been committed during a contract award procedure. To that end, the
         provision authorises appropriate steps to be taken for the rapid correction of any alleged infringement.
      
      41.      The foregoing considerations lead me to conclude that Directive 89/665 makes no statement, either directly or indirectly,
         regarding the legal remedies which must be made available to contracting authorities. That should be sufficient, in my view,
         to give a negative response to the question raised by the Anotato Dikastirio. In my opinion, however, this conclusion should
         be supported by some further points. 
      
      42.      At point 18 of its observations, the Simvoulio argues that being restricted in this way is seriously detrimental to it, inasmuch
         as, on the one hand, the contract would be awarded to a legal person other than the tenderer that it considers the most suitable,
         and as, on the other hand, it cannot rule out the possibility that it will face a claim for liability in respect of the losses
         incurred as a result of the award which was subsequently annulled by the review authority. Then, of course, there is the obvious
         fact that the Simvoulio is a public entity with its own administrative powers, specifically, to manage wastewater, (15) in which context it has the status of a contracting authority and is in a position which is at any rate different from that
         of the review authority. (16)
      
      43.      In this regard, and although the Court of Justice cannot rule on the position of the Simvoulio as an organ of the Cypriot
         system or on its relationship to the review authority, (17) the hearing provided sufficient clarification to find unconvincing the review authority’s argument that the acts of both
         bodies form part of a single award procedure, and that on that basis they are not in reality separate bodies. 
      
      44.      Against this, however, would be the logic behind the review described in Article 2(8) of Directive 89/665, as the claims of
         tenderers seeking to have the award revoked aside would be genuinely compromised if a certain amount of independence between
         the review body and the contracting authority were not accepted. This view is supported by Article 2(3) of Directive 2007/66,
         which, in connection with the review of a contract award decision, refers to ‘a body of first instance, which is independent
         of the contracting authority’.
      
      45.      However, irrespective of the foregoing, the following point must be made. Having established that Directive 89/665 contains
         no reference to the effect that legal remedies may be available to contracting authorities, even against annulment decisions
         taken by an administrative review body, it is clear that the detrimental effects claimed by the Simvoulio, in so far as they
         can be substantiated, exist, in principle, only in the sphere of the procedural autonomy of Member States, and that it is
         in that context of the relevant national legal systems that they must be addressed.
      
      46.      Nevertheless, one final point should be made, which is that the procedural autonomy of the Member States is clearly not absolute.
         In fact, when that autonomy is exercised in the field of European Union law, it meets its furthest limits in the general principles
         of that law and, in particular here, both in the value that is the ‘rule of law’ (18) and in observance of fundamental rights, specifically the right to an effective remedy pursuant to Article 47 of the Charter. (19)
      
      47.      However, for the purposes of this case, suffice it to say, in this regard, that the nature of legal persons governed by public
         law possessed by such contracting authorities makes it very difficult for them to rely on Article 47 of the Charter (20) which, moreover, has not been expressly pleaded in these proceedings. 
      
      48.      Finally, attempting to infer from the rule of law that the contracting authority has capacity to bring legal proceedings is
         even more problematic in the circumstances of the case. Of course, it is beyond doubt that a balanced procedural structure
         forms part of the image of the rule of law and, from that point of view, it might seem surprising that the contracting authority
         is denied access to judicial review of the annulment by the administrative body of its decision to award a contract. 
      
      49.      However, in this respect, we must be mindful of the fact that, in the first place, it is primarily the tendering undertakings
         which were awarded the contract by the decision subsequently annulled that would naturally be inclined to seek judicial review
         of that annulment, in the exercise of a capacity to bring proceedings which has obviously never been in dispute. 
      
      50.      Furthermore, we would do well to remember that, by virtue of Article 2(7) of Directive 89/665, the Member States ‘shall ensure
         that decisions taken by bodies responsible for review procedures can be effectively enforced’. The provision makes no distinction
         between judicial and non-judicial bodies and consequently this mandate to optimise enforcement must not be interfered with
         more than is absolutely necessary by prolonging the dispute and the lack of legal certainty beyond what is envisaged in the
         directive. 
      
      51.      The foregoing should be sufficient, in my opinion, to conclude that the restriction of the contracting authority’s capacity
         to bring proceedings is, in the circumstances of the case, proportionate, viewed from a perspective as broad as the rule of
         law undoubtedly is. Nor, in conclusion, should it therefore be assumed from this last observation that the procedural autonomy
         exercised by the Member State within the context of Directive 89/665 was exercised in disregard of the general principles
         of European Union law or of the values or fundamental rights proclaimed therein.
      
      VI –  Conclusion
      52.      In the light of the foregoing considerations, I propose that the Court of Justice give the following reply to the question
         referred for a preliminary ruling: 
      
      Article 2(8) 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 does
         not preclude an interpretation whereby a contracting authority is prevented from exercising the right to challenge before
         the courts the annulment of its decision by the administrative body responsible for review procedures. 
      
      1 –	Original language: Spanish.
      
      2 –	Its judgments are subject to appeal before the same court sitting in plenary session.
      
      3 –	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 (OJ 1989 L 395,
         p. 33).
      
      4 –	Provision drafted in accordance with Article 41 of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination
         of procedures for the award of public service contracts (OJ 1992 L 209, p. 1). Pursuant to Article 33 of Council Directive
         93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1), Article
         36 of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works
         contracts (OJ 1993 L 199, p. 54) and the second paragraph of Article 82 of Directive 2004/18/EC of the European Parliament
         and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply
         contracts and public service contracts (OJ 2004 L 134, p. 114), and in accordance with the correlation tables in the annexes
         to the above directives, the references to Directive 71/305/EEC, Directive 77/62/EEC and Directive 92/50/EEC appearing in
         Article 1(1) of Directive 89/665 shall be construed as references to Directive 2004/18.
      
      5 –      Since Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC
         and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (OJ
         2007 L 335, p. 31), which is not applicable to the present case for chronological reasons, the provision contained in Article
         2(8) has now become Article 2(9), with the substance remaining unchanged, although the reference in the Spanish version of
         Article 2(8) to the organismo de base (original body) is replaced by the less ambiguous órgano de recurso (review body).
      
      6 –	It transpired at the hearing that the geographical area of the Simvoulio covers the Nicosia metropolitan area and that
         its president is the mayor of Nicosia. 
      
      7 –	All the parties involved in these preliminary ruling proceedings have avoided specifying the precise grounds on which the
         review authority revoked the decision of the Simvoulio.
      
      8 –	Giving rise to the case registered under No 629/2006.
      
      9 –	No 106/2006.
      
      10 –	Which currently comprise, basically, Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004
         coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors
         (OJ 2004 L 134, p. 1) and Directive 2004/18).
      
      11 –	Judgment in Case C‑315/01 GAT [2003] ECR I‑6351, paragraph 45 and Order of 4 October 2007 in Case C‑492/06 Consorzio Elisoccorso San Raffaele [2007] ECR I‑8189, paragraph 21.
      
      12 –	According to the judgments of the Court of Justice in Case C‑470/99 Universale‑Bau and others [2002] ECR I‑11617, paragraph 71 and in Case C‑406/08 Uniplex (UK) Ltd [2010] ECR I‑0000, paragraph 26, ‘[i]t is therefore for the internal legal order of each Member State to establish such time-limits’.
      
      13 –	Order of the Court of Justice of 4 October 2007, cited, paragraph 20.
      
      14 –	A concept which, for these purposes, includes not only a judicial body recognised as such from the organisational perspective
         of the Member State, and whose protection is invoked by means of a ‘judicial review’, but also a ‘body which is a court or
         tribunal within the meaning of Article 177 of the EEC Treaty … independent of both the contracting authority and the review
         body’, since Article 2(8) of Directive 89/665 also permits the decisions of the contracting authority or administrative body
         responsible for review to be examined by such a body. 
      
      15 –	In point of fact, the Simvoulio also represents the interest of the community in wastewater being correctly managed, a
         function for which it alone has full responsibility, as was confirmed at the hearing, and which covers wastewater distribution
         and treatment in the Nicosia metropolitan area, thus extending beyond the city limits.
      
      16 –	From the submissions of all those participating in these preliminary ruling proceedings it is clear that the Simvoulio
         is a ‘contracting authority’ and the review authority ‘a non-judicial body responsible for the review procedure’, and it is
         therefore only necessary to look to Directive 89/665 to conclude that the two administrative bodies, perform different roles,
         at least from a functional perspective.
      
      17 –	It is not for the Court of Justice to analyse national law because the mechanism for seeking preliminary rulings is based
         on a clear separation of functions between the national courts and the Court of Justice, which is empowered only to rule on
         the interpretation or, as the case may be, the validity of European Union provisions on the basis of the facts which the national
         court puts before it: see the judgments of the Court of Justice in Case C‑30/93 AC-ATEL Electronics Vertriebs [1994] ECR I‑2305, paragraph 16; Case C‑352/95 Phytheron International [1997] ECR I‑1729, paragraph 11; and Case C‑235/95 Dumon and Froment [1998] ECR I‑4531, paragraphs 25 to 27. 
      
      18 –	Article 2 TEU treats ‘the rule of law’ as a ‘value’ common to the Member States. However, the preamble to the Charter of
         Fundamental Rights of the European Union of 7 December 2000 (OJ 2000 C 364, p. 1), as adapted in Strasbourg on 12 December
         2007 (OJ C 303, p. 1) (‘the Charter’) refers to it as a ‘principle’.  For its part, the second paragraph of Article 19(1)
         TEU declares that ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered
         by Union law’. 
      
      19 –	Judgments in Case 5/88 Wachauf [1989] ECR 2609, paragraph 18 and Joined Cases C‑20/00 and C‑64/00 Booker Aquaculture and Hydro Seafood [2003] ECR I‑7411, paragraph 65 et seq.
      
      20 –	Article 34 of the Rome Convention prevents public bodies from relying on the rights set forth therein before the European
         Court of Human Rights; however, the Strasbourg Court has, in particular circumstances, extended the protection of Article
         6(1) of the European Convention on Human Rights to certain public law bodies: see, for example, its judgment of 9 December
         1994, The Holy Monasteries v Greece, Series A No 301‑A, pp. 34-35, paragraph 49, which requires that such bodies should not exercise governmental powers, which
         is obviously not the case in relation to the Simvoulio.