Amt Azienda Trasporti e Mobilità SpA and Others v Atpl Liguria - Agenzia regionale per il trasporto pubblico locale SpA and Regione Liguria.
Date: 2018-11-28
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It must be recalled that, according to settled case-law, in the context of cooperation between the Court and national courts as provided for by Article 267 TFEU, it is solely for the national court, which alone has direct knowledge of the facts of the case and of the arguments put forward by the parties, and which must bear the responsibility for the subsequent decision, is in the best position to determine, in the light of the special features of each case and with full knowledge of the matter before it, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, in particular, to that effect, judgments of 22 June 2000, Marca Mode, C‑425/98, EU:C:2000:339, paragraph 21, and of 1 April 2008, Gouvernement de la Communauté française and Gouvernement wallon, C‑212/06, EU:C:2008:178, paragraph 28).
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Consequently, where the questions concern the interpretation of EU law, the Court of Justice is, in principle, bound to give a ruling (judgment of 17 April 2007, AGM-COS.MET, C‑470/03, EU:C:2007:213, paragraph 44).
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It follows that the presumption that questions referred by national courts for a preliminary ruling are relevant may be rebutted only in exceptional cases, where it is quite obvious that the interpretation which is sought of the provisions of EU law referred to in the questions bears no relation to the actual facts of the main action or to its purpose (see, in particular, judgments of 15 December 1995, Bosman, C‑415/93, EU:C:1995:463, paragraph 61; of 7 September 1999, Beck and Bergdorf, Case C‑355/97, EU:C:1999:391, paragraph 22, and of 1 April 2008, Gouvernement de la Communauté française and Gouvernement wallon, C‑212/06, EU:C:2008:178, paragraph 29).
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A reference by a national court can be rejected only if it appears that the procedure laid down by Article 267 TFEU has been misused and a ruling from the Court elicited by means of a contrived dispute, or it is obvious that EU law cannot apply, either directly or indirectly, to the circumstances of the case referred to the Court (see, to that effect, judgments of 18 October 1990, Dzodzi, C‑297/88 and C‑197/89, EU:C:1990:360, paragraph 40, and of 17 July 1997, Leur-Bloem, C‑28/95, EU:C:1997:369, paragraph 26).
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In accordance with Article 1(3) of Directive 89/665, the Member States are required to ensure that the review procedures provided for 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 EU law on public procurement or national rules transposing that law (see, to that effect, judgments of 12 February 2004, Grossmann Air Service, C‑230/02, EU:C:2004:93, paragraph 25, and of 5 April 2016, PFE, C‑689/13, EU:C:2016:199, paragraph 23).
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Therefore, Member States are not obliged to make those review procedures available to any person wishing to obtain a public contract, but they may require that the person concerned has been or risks being harmed by the infringement he alleges (see, to that effect, judgments of 19 June 2003, Hackermüller, C‑249/01, EU:C:2003:359, paragraph 18, and of 12 February 2004, Grossmann Air Service, C‑230/02, EU:C:2004:93, paragraph 26).
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Participation in a contract award procedure may, in principle, with regard to Article 1(3) of Directive 89/665, validly constitute a condition which must be fulfilled before the person concerned can show an interest in obtaining the contract at issue or that he risks suffering harm as a result of the allegedly unlawful nature of the decision to award that contract. If he has not submitted a tender it will be difficult for such a person to show that he has an interest in challenging that decision or that he has been harmed or risks being harmed as a result of that award decision (judgment of 12 February 2004, Grossmann Air Service, C‑230/02, EU:C:2004:93, paragraph 27).
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However, where an undertaking has not submitted a tender because there were allegedly discriminatory specifications in the documents relating to the invitation to tender, or in the contract documents, which have specifically prevented it from being in a position to provide all the services requested, it would be too much to require an undertaking allegedly harmed by discriminatory clauses in the documents relating to the invitation to tender to submit a tender, before being able to avail itself of the review procedures provided for by Directive 89/665 against such specifications, in the award procedure for the contract at issue, even though its chances of being awarded the contract are non-existent by reason of the existence of those specifications (judgment of 12 February 2004, Grossmann Air Service, C‑230/02, EU:C:2004:93, paragraphs 28 and 29).
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It must be pointed out that, so as not to undermine the objectives of speed and effectiveness laid down by Directive 89/665 and Directive 92/13, such an action cannot be brought after notification of the decision awarding the contract has been adopted by the contracting authority (see, to that effect, judgment of 12 February 2004, Grossmann Air Service, C‑230/02, EU:C:2004:93, paragraph 37).