CELEX: 62013CC0689(01)
Language: en
Date: 2015-10-15 00:00:00
Title: Opinion of Advocate General Wathelet delivered on 15 October 2015.#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.#Case C-689/13.

ADDITIONAL OPINION OF ADVOCATE GENERAL
      WATHELET
      delivered on 15 October 2015 (
            1
         )
      
         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 (Council of Administrative Justice for the Region of Sicily, Italy))
      
      ‛Reopening of the oral procedure — Article 267 TFEU — Concept of ‘court or tribunal’ — Organisational approach — Functional approach’
      
         I – Introduction
      
      
               1.
            
            
               This Opinion is the second to be delivered in PFE (C‑689/13, EU:C:2015:263). The request for a preliminary ruling concerns, first, the interpretation of Article 1(3) 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, (
                     2
                  ) as amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 (
                     3
                  ) and, secondly, the interpretation of Article 267 TFEU and the principles of the primacy of EU law and of consistent interpretation.
            
         
               2.
            
            
               By decision of 20 January 2015, the Court assigned the case to the Fifth Chamber. A hearing took place on 11 March 2015, at which Puligienica Facility Esco SpA (PFE), Gestione Servizi Ambientali Srl, the Italian Government and the European Commission had the opportunity to submit their observations. I delivered my first Opinion in that case on 23 April 2015. (
                     4
                  ) On 10 June 2015, however, in the course of its deliberations, that chamber decided, pursuant to Article 60(3) of the Rules of Procedure of the Court, to refer the case to the Court, which reassigned it to the Grand Chamber.
            
         
               3.
            
            
               By its order in PFE (C‑689/13, EU:C:2015:521), the Court thus ordered the reopening of the oral procedure and invited the interested persons referred to in Article 23 of the Statute of the Court of Justice of the European Union to express their views on the following question: ‘Do the concept of ‘court or tribunal’ within the meaning of Article 267 TFEU and the obligation to apply EU law as interpreted by the Court of Justice of the European Union apply, on the basis of a functional approach, to the chamber of a court or tribunal of a Member State that is seised of a dispute, or, on the basis of an organisational approach, only to that court or tribunal as a whole, of which that chamber is formally part?’
            
         
               4.
            
            
               In the present Opinion I shall therefore concentrate on that question alone and merely raise points that are relevant to an examination of that question. I note, lastly, that only the Italian, Netherlands and Polish Governments, and the European Commission, replied to the question put by the Court following the reopening of the oral procedure. Only the Italian Government and the Commission took the opportunity to express their views at the hearing which took place on 15 September 2015.
            
         II – Legal framework
      
      
               5.
            
            
               Legislative Decree No 104 of 2 July 2010 (Ordinary Supplement to GURI No 156 of 7 July 2010) introduced the Code of Administrative Procedure.
            
         
               6.
            
            
               According to Article 99(3) of that code, ‘[i]f the chamber to which an action is assigned does not concur with a principle of law stated by the plenary session, it shall, by reasoned order, refer the decision on the appeal to the plenary session’.
            
         
               7.
            
            
               Article 99(4) of the code provides that ‘[t]he plenary session shall rule on the dispute in its entirety, unless it decides to state the principle of law and to refer the remainder of the case back to the referring chamber’.
            
         III – Analysis
      
      A – The interpretation suggested in my first Opinion
      
      
               8.
            
            
               As a preliminary point, I note that the Italian Government and the two other governments which replied to the question put by the Court support the functional interpretation of the concept of ‘court or tribunal’.
            
         
               9.
            
            
               That is also the position which I adopted, implicitly but definitely, in my first Opinion. At the end of my analysis of the referring court’s second question I concluded that ‘Article 267 TFEU precludes a provision such as Article 99(3) of the Code of Administrative Procedure, interpreted as requiring the chamber of a court against whose decisions there is no judicial remedy, where it does not concur with a principle of law stated by the plenary session of that same court, to refer to the plenary session the decision under appeal, without first having the opportunity to make a reference to the Court of Justice for a preliminary ruling’. (
                     5
                  )
            
         
               10.
            
            
               Although I did not expressly put forward the idea of a ‘functional’ interpretation of ‘court or tribunal’ within the meaning of Article 267 TFEU, such in interpretation none the less accords with the approach that was advocated. It is also the one which I continue to support in this additional Opinion.
            
         B – The Consiglio di Giustizia amministrativa per la Regione siciliana (Council of Administrative Justice for the Region of Sicily) and the impact of Article 99(3) of the Code of Administrative Procedure on the finality of its decisions
      
      
               11.
            
            
               The judicial nature of the Consiglio di Giustizia amministrativa per la Regione siciliana (Council of Administrative Justice for the Region of Sicily), which is composed of two chambers constituting separate chambers of the Consiglio di Stato (Council of State), (
                     6
                  ) for the purposes of Article 267 TFEU is therefore, in my view, not in doubt. According to Article 6(1) of the Code of Administrative Procedure, ‘[t]he Consiglio di Stato (Council of State) is the administrative court of final instance’.
            
         
               12.
            
            
               The Italian Government confirmed at the hearing on 15 September 2015, first, that there was no judicial remedy available against decisions of the Consiglio di Giustizia amministrativa per la Regione siciliana (Council of Administrative Justice for the Region of Sicily) and, secondly, nor was there any judicial remedy or procedural sanction available for failure to apply Article 99(3) of the Code of Administrative Procedure. (
                     7
                  )
            
         
               13.
            
            
               As I pointed out in my first Opinion, the Corte suprema di cassazione (Court of Cassation) itself held in judgment No 2403, delivered in combined chambers on 4 February 2014, that ‘within the Italian system of administrative courts it fell to the Consiglio di Stato (Council of State), its chambers and the plenary session, without distinction, to adjudicate as the court of final instance for the purposes of the third paragraph of Article 267 TFEU’. (
                     8
                  )
            
         
               14.
            
            
               Moreover, it is not the first time that that court has referred a question to the Court of Justice for a preliminary ruling, since the Court has already answered several requests for a preliminary ruling from the Consiglio di Giustizia amministrativa per la Regione siciliana (Council of Administrative Justice for the Region of Sicily). (
                     9
                  )
            
         
               15.
            
            
               To adopt an organisational approach to that court would mean therefore that a court or tribunal within the meaning of Article 267 TFEU might lose that status as a result of the particular manner in which the courts of a Member State are organised.
            
         C – The impact of a chamber of a court being relieved of its jurisdiction in favour of the same court with a different composition
      
      
               16.
            
            
               It is apparent from the Court’s now settled case-law that Article 267 TFEU precludes Member State legislation which establishes an interlocutory procedure for the review of the constitutionality of national laws, where the priority nature of that procedure prevents a national court from exercising its right or fulfilling its obligation to refer questions to the Court of Justice for a preliminary ruling both before the submission of a question on constitutionality to the national court responsible for reviewing the constitutionality of laws and, as the case may be, after the decision of that court on that question. (
                     10
                  ) It follows from that case-law that the court seised of the dispute must always be in a position, at any given time, to refer a question to the Court for a preliminary ruling.
            
         
               17.
            
            
               In the case at issue, Article 99(3) of the Code of Administrative Procedure does not require referral to another court but to the same court with a different composition. The key factor, in my view, is not that difference but the fact that if the Consiglio di Giustizia amministrativa per la Regione siciliana (Council of Administrative Justice for the Region of Sicily) (or any other chamber of the Consiglio di Stato (Council of State)) decides, on the basis of Article 99(3) of the Code of Administrative Procedure, to refer the case to the plenary session, it is no longer, in principle, seised of the dispute itself and accordingly can no longer refer a question to the Court of Justice for a preliminary ruling, either at the same time or subsequently. (
                     11
                  )
            
         
               18.
            
            
               However, there is nothing in Article 99(3) of the Code of Administrative Procedure that would appear to prevent a chamber of the Consiglio di Stato (Council of State) making use of Article 267 TFEU before relieving itself of jurisdiction. (
                     12
                  ) It is appropriate to note that this is also the interpretation suggested by the Italian Government.
            
         
               19.
            
            
               In such a situation, it is for that chamber to draw the appropriate conclusions from the judgment given by the Court of Justice or, if appropriate and only at that time, to refer the case to the plenary session of the Consiglio di Stato (Council of State). It will then be for the plenary session to decide the case in line with the judgment of the Court of Justice or to refer another question to that court.
            
         
               20.
            
            
               That interpretation, moreover, has the advantage of reducing the likelihood of failure to apply, or misapplication, of EU law.
            
         
               21.
            
            
               I shall conclude these comments regarding divestment of jurisdiction with a thought prompted by the judgment in Syfait and Others (C‑53/03, EU:C:2005:333). In my first Opinion I suggested there was a parallel with the approach adopted in the judgment in Parfums Christian Dior (C‑337/95, EU:C:1997:517). (
                     13
                  ) It also seems to me that a converse inference may be drawn from the judgment in Syfait and Others (C‑53/03, EU:C:2005:333).
            
         
               22.
            
            
               In that case, the Court declined jurisdiction, inter alia, because a competition authority could be relieved of the case by the Commission under Article 11(6) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC]. (
                     14
                  ) However, unlike a measure concerning the organisation of the courts, such as that at issue in the main proceedings, in the field of competition the body referring the question for a preliminary ruling does not control either the transfer itself or the time when the case may be transferred. By contrast, in the present case, it is the chamber of the Consiglio di Stato (Council of State) which decides, after making a reference to the Court for a preliminary ruling, whether it will refer the case to the plenary session. In doing, so it retains its status as a court or tribunal within the meaning of Article 267 TFEU until it takes its own decision to decline jurisdiction.
            
         
               23.
            
            
               In conclusion, it would seem to me that a court or tribunal should be viewed from a functional perspective, and that it cannot therefore lose that ‘status’ even though it may be relieved of its jurisdiction, in favour of the same court with a different composition, after the Court has given its ruling.
            
         D – Additional considerations
      
      
               24.
            
            
               For the sake of completeness, I should add that both the objective of cooperation inherent in Article 267 TFEU and the practical difficulty in applying the organisational approach should also lead the Court to reject such a view of a ‘court or tribunal’ within the meaning of Article 267 TFEU.
            
         1. The principle of cooperation between the Court of Justice and the courts of the Member States
      
               25.
            
            
               First of all, an organisational approach to the concept of ‘court or tribunal’ within the meaning of Article 267 TFEU would seem to me to conflict with the fact that, according to settled case-law, Article 267 TFEU establishes ‘a procedure for direct cooperation between the Court and the courts of the Member States’. (
                     15
                  ) That notion of cooperation is confirmed by the principle of the same name. As Advocate General Cruz Villalón aptly commented, the principle of sincere cooperation, as set out in Article 4(3) TEU, also applies to courts and tribunals, ‘including the two courts concerned in these important proceedings’. (
                     16
                  ) I am therefore sympathetic to the Commission’s argument that, according to the principle of sincere cooperation, any provision concerning the organisation and procedure of the courts must be interpreted not only in line with Article 267 TFEU, but also in a way that promotes access to the preliminary ruling mechanism provided for in that article. (
                     17
                  )
            
         
               26.
            
            
               Accordingly, where a court of final instance — which the referring court is under Italian national law (
                     18
                  ) — expresses doubts regarding the interpretation of EU law and its application by another court of final instance within its own legal system, or even by its own plenary session, it would seem to me that it is for the Court of Justice to provide it with an answer.
            
         
               27.
            
            
               As I stated in my first Opinion, to withhold from a chamber of a court against whose decisions there is no judicial remedy under domestic law the possibility of referring a matter to the Court of Justice solely because the plenary session of that same court is required to do so would seem to me to be at odds with the settled case-law of the Court, which has always given ‘national courts the widest discretion in referring matters to the Court if they consider that a case pending before them raises questions involving interpretation of provisions of EU law, or consideration of their validity, which are necessary for the resolution of the case’. (
                     19
                  )
            
         
               28.
            
            
               In this regard I agree with the position taken by the Polish Government that any gap in that system of cooperation between national courts and the Court of Justice may undermine the very effectiveness of the provisions of the Treaty and of secondary law with regard to which the national court has doubts. (
                     20
                  )
            
         
               29.
            
            
               An organisational interpretation of the concept of ‘court or tribunal’ would increase the risk that case-law might come into existence in the Member State in question that is not in accordance with EU law. If a situation arose where the ‘chamber’ of a court ruling at final instance decided not to refer the case to the plenary session and took a decision that was not in accordance with EU law, no court of whatever composition would be able to set it aside. As I noted in my first Opinion, if national courts against whose decisions there is no judicial remedy under national law are required to make a reference to the Court when faced with a question concerning the interpretation of EU law, it is in order to ‘prevent a body of national case-law that is not in accordance with the rules of [European Union] law from coming into existence in any Member State’. (
                     21
                  )
            
         2. Practical difficulty in applying the organisational interpretation
      
               30.
            
            
               Secondly, I consider that it would be difficult in practice for the Court to adopt an organisational interpretation of the concept of ‘court or tribunal’ in applying Article 267 TFEU.
            
         
               31.
            
            
               As I stated previously, the Court has on several occasions answered questions referred for a preliminary ruling by the Consiglio di Giustizia amministrativa per la Regione siciliana (Council of Administrative Justice for the Region of Sicily). (
                     22
                  )
            
         
               32.
            
            
               Furthermore, it is apparent from the Italian Government’s answer to the question put by the Court following the reopening of the oral procedure that the Italian Code of Civil Procedure contains a provision similar to Article 99 of the Code of Administrative Procedure for the Corte suprema di cassazione (Court of Cassation). According to Article 273(3) of the Code of Civil Procedure, ‘where a single chamber [of the Corte suprema di cassazione] does not concur with a principle of law stated by the combined chambers, it shall, by reasoned order, refer the decision on the appeal to the combined chambers’. The Court has already responded to a number of references for a preliminary ruling from that court.
            
         
               33.
            
            
               If the Court were to adopt an organisational approach to the concept of ‘court or tribunal’ within the meaning of Article 267 TFEU, that would mean that all the courts or tribunals of a Member State which has a similar procedural rule to that established by the Italian Code of Administrative Procedure or the Italian Code of Civil Procedure would be able to refer matters to the Court of Justice only on condition that they did not challenge a principle of law stated by the plenary session of that court or tribunal.
            
         
               34.
            
            
               Such a definition of a court or tribunal within the meaning of Article 267 TFEU would be impractical in that it would make it difficult for the Court of Justice to ascertain whether it had jurisdiction. It would be possible for that to be ascertained only where the referring court provided comprehensive information concerning its procedural law. The Court is not necessarily informed of all national procedural rules when a reference is made for a preliminary ruling. Moreover, for the Court to lack jurisdiction would require effective application of the procedural rules at issue in the particular case giving rise to the request for a preliminary ruling. To take the hypothesis of the Italian Code of Administrative Procedure, a chamber of the Consiglio di Stato (Council of State) does not necessarily refer a matter to the Court for a preliminary ruling because it considers that a principle of law stated by the plenary session is not in accordance with EU law. However, the Court would lack jurisdiction only in such a case.
            
         
               35.
            
            
               Such an interpretation would, moreover, conflict with the consistent approach taken by the Court, which views a court as being one and the same entity, whatever its internal organisation. Evidence of that ‘comprehensive’ view of courts can be seen in the way in which the Court identifies national courts in its judgments. They are referred to exclusively by their ‘overall’ name, without any reference to their composition (chamber, plenary, etc.).
            
         IV – Conclusion
      
      
               36.
            
            
               In the light of the above considerations and of the analysis in points 63 to 89 of my first Opinion, delivered in the present case on 23 April 2015, I consider that the concept of ‘court or tribunal’ within the meaning of Article 267 TFEU must be interpreted on the basis of a functional approach. That article refers, therefore, to the court or the chamber of a court of a Member State which is seised of the dispute.
            
         (
            1
         )	Original language: French.
      (
            2
         )	OJ 1989 L 395, p. 33.
      (
            3
         )	OJ 2007 L 335, p. 31.
      (
            4
         )	C‑689/13, EU:C:2015:263.
      (
            5
         )	Point 91 of my first Opinion.
      (
            6
         )	According to Article 1(2) of Legislative Decree No 373 of 24 December 2003, entitled ‘Measures for implementing the special statute of the Region of Sicily concerning the exercise in that region of the functions assigned to the Consiglio di Stato’ (Ordinary Supplement to GURI No 10 of 14 January 2004).
      (
            7
         )	The Italian Government had already mentioned that absence of sanctions in its written observations. See point 76 and the case-law of the Consiglio di Stato (Council of State) cited in my first Opinion.
      (
            8
         )	According to the Italian Government’s citation in paragraph 9 of its answer to the question put by the Court following the reopening of the oral procedure (emphasis added).
      (
            9
         )	See judgment in Valvo (C‑78/07, EU:C:2008:171); order in Rizzo (C‑107/11, EU:C:2012:96), and judgment in Ottica New Line di Accardi Vincenzo (C‑539/11, EU:C:2013:591). I note that the last two requests for a preliminary ruling were made after the entry into force of the Code of Administrative Procedure.
      (
            10
         )	Judgment in Melki and Abdeli (C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 57 and the operative part). See, also, judgment in A (C‑112/13, EU:C:2014:2195, paragraph 46 and the operative part).
      (
            11
         )	According to Article 99(4) of the Code of Administrative Procedure, where the plenary session of the Consiglio di Stato (Council of State) is seised of a dispute it is to ‘rule on the dispute in its entirety, unless it decides to state a principle of law and to refer the remainder of the case back to the referring chamber’.
      (
            12
         )	Moreover, according to the conclusion I reached in my first Opinion, another interpretation, which would require ‘the chamber of a court against whose decisions there is no judicial remedy, where it does not concur with a principle of law stated by the plenary session of that same court, to refer to the plenary session the decision under appeal without first having the opportunity to make a reference to the Court of Justice for a preliminary ruling (would be incompatible with Article 267 TFEU’ (see point 91 of my first Opinion). Emphasis added.
      (
            13
         )	See points 85 to 89 of my first Opinion.
      (
            14
         )	OJ 2003 L 1, p. 1
      
      (
            15
         )	Judgment in Gauweiler and Others (C‑62/14, EU:C:2015:400, paragraph 15 and the case-law cited). Emphasis added.
      (
            16
         )	Opinion of Advocate General Cruz Villalón in Gauweiler and Others (C‑62/14, EU:C:2015:7, point 64).
      (
            17
         )	Paragraph 12 of the Commission’s answer to the question put by the Court following the reopening of the oral procedure.
      (
            18
         )	See points 66 and 69 to 76 of my first Opinion, and points 11 to 13 of the present Opinion.
      (
            19
         )	Judgment in Križan and Others (C‑416/10, EU:C:2013:8, paragraph 64 and the case-law cited). Emphasis added. See point 64 of my first Opinion.
      (
            20
         )	See paragraph 5 of the answer of the Polish Government to the question put by the Court following the reopening of the oral procedure.
      (
            21
         )	Judgment in Lyckeskog (C‑99/00, EU:C:2002:329, paragraph 14 and the case-law cited).
      (
            22
         )	See the case-law cited in footnote 9.