SC Star Storage SA and Others v Institutul Naţional de Cercetare-Dezvoltare în Informatică (ICI) and Others.
Date: 2016-09-15
39


In that connection, it must be recalled that Article 1(1) of Directive 89/665 and Article 1(1) of Directive 92/13 require the Member States to adopt the measures necessary to ensure that the decisions taken by the contracting authorities in public contract award procedures falling within the scope of Directives 2004/17 and 2004/18 may be reviewed effectively and, in particular, as rapidly as possible, on the ground that they have infringed EU law on public procurement or the national rules transposing that law.
41


Those provisions, which are intended to protect tenderers against arbitrary behaviour on the part of the contracting authority, are thus designed to reinforce the existence, in all Member States, of effective remedies, so as to ensure the effective application of the EU rules on the award of public contracts, in particular where infringements can still be rectified (see, to that effect, judgments of 12 December 2002, Universale-Bau and Others, C‑470/99, EU:C:2002:746, paragraph 71; of 11 September 2014, Fastweb, C‑19/13, EU:C:2014:2194, paragraph 34, and of 12 March 2015, eVigilo, C‑538/13, EU:C:2015:166, paragraph 50).
42


However, neither Directive 89/665 nor Directive 92/13 contains any provisions specifically governing the conditions under which those review procedures may be used. Thus, the Court has already held that Directive 89/665 laid down only the minimum conditions to be satisfied by the review procedures established in domestic law to ensure compliance with the requirements of EU law concerning public procurement (see, in particular, judgments of 27 February 2003, Santex, C‑327/00, EU:C:2003:109, paragraph 47; of 19 June 2003, GAT, C‑315/01, EU:C:2003:360, paragraph 45; and of 30 September 2010, Strabag and Others, C‑314/09, EU:C:2010:567, paragraph 33).
43


However, according to settled case-law, the detailed procedural rules governing the remedies intended to protect rights conferred by EU law on candidates and tenderers harmed by decisions of contracting authorities, must not compromise the effectiveness of Directives 89/665 and 92/13, the objective of which is to ensure that decisions taken unlawfully by contracting authorities may be reviewed effectively and as rapidly as possible (see, in particular, judgments of 12 December 2002, Universale-Bau and Others, C‑470/99, EU:C:2002:746, paragraph 72; of 27 February 2003, Santex, C‑327/00, EU:C:2003:109, paragraph 51; of 3 March 2005, Fabricom, C‑21/03 and C‑34/03, EU:C:2005:127, paragraph 42; order of 4 October 2007, Consorzio Elisoccorso San Raffaele, C‑492/06, EU:C:2007:583, paragraph 29; judgments of 12 March 2015, eVigilio, C‑538/13, EU:C:2015:166, paragraph 40; and of 6 October 2015, Orizzonte Salute, C‑61/14, EU:C:2015:655, paragraph 47).
44


In particular, care must be taken to ensure that the effectiveness of Directives 89/665 and 92/13 are not undermined (see judgments of 18 June 2002, HI, C‑92/00, EU:C:2002:379, paragraphs 58 and 59, and of 11 December 2014, Croce Amica One Italia, C‑440/14, EU:C:2014:2435, paragraph 40) or the rights conferred on individuals by EU law (judgments of 12 December 2002, Universale-Bau and Others, C‑470/99, EU:C:2002:746, paragraph 72, and of 28 January 2010, Uniplex (UK), C‑406/08, EU:C:2010:45, paragraph 49).
46


Accordingly, when they set out detailed procedural rules for legal actions intended to ensure the protection of rights conferred by Directives 89/665 and 92/13 on candidates and tenderers harmed by the decisions of contracting authorities, the Member States must ensure compliance with the right to an effective remedy and to a fair hearing, enshrined in Article 47 of the Charter.
49


As the Advocate General pointed out in point 37 of her Opinion, the good conduct guarantee thereby constitutes, as a pre-condition for getting any challenge examined, a limitation on the right to an effective remedy before a tribunal within the meaning of Article 47 of the Charter which, in accordance with Article 52(1) of the Charter can therefore be justified only if it is provided for by law, if it respects the essence of that right and, subject to the principle of proportionality, if it is necessary and genuinely meets objectives of general interest recognised by the EU or the need to protect the rights and freedoms of others (see judgment of 4 May 2016, Pillbox 38, C‑477/14, EU:C:2016:324, paragraph 160).
50


It must be held that, in the cases in the main proceedings, the legal basis for the good conduct guarantee is clearly and precisely defined by the OUG No 34/2006, so that it must be regarded as being provided for by the national legislation (see judgments of 27 May 2014, Spasic, C‑129/14 PPU, EU:C:2014:586; of 6 October 2015, Delvigne, C‑650/13, EU:C:2015:648, paragraph 47; and of 17 December 2015, WebMindLicenses, C‑419/14, EU:C:2015:832, paragraph 81). Furthermore, the fact that the good conduct guarantee may reach the substantial amount of EUR 25000 or EUR 100000 cannot lead to the conclusion that the obligation to give such a guarantee undermines the fundamental content of the right to an effective remedy since, in any event, that guarantee, cannot be kept by the contracting authority, whatever the outcome of the action.
55


However, although the interest of the proper administration of justice may justify the imposition of a financial restriction on the access by a person to a remedy, that restriction must however retain a reasonable relationship of proportionality between the means employed and the legitimate aim sought to be achieved (see, to that effect, judgment of 22 December 2010, DEB, C‑279/09, EU:C:2010:811, paragraphs 47 and 60).
59


Mobilising a sum of that amount by bank transfer, like the requirement to take the steps necessary to constitute a bank guarantee and pay the fees relating to it are such as to encourage applicants to carefully consider bringing an action. Furthermore, in so far as it undermines the applicant’s resources or, at least, its ability to obtain credit until that guarantee is refunded, the good conduct guarantee is of such a nature that it encourages applicants to act prudently in the proceedings they bring, consistent with the requirement in Article 1(1) of Directive 89/665 and Article 1(1) of Directive 92/13 that the review procedures referred to therein are conducted as rapidly as possible. As the Romanian Government submitted at the hearing, it is conceivable that such a financial condition will encourage potential litigants to seriously evaluate their interest in bringing legal proceedings and their chance of winning and thereby dissuade them from bringing claims which are manifestly unfounded or which only seek to delay the award of a contract (see, by analogy, judgment of 6 October 2015, Orizzonte Salute, C‑61/14, EU:C:2015:655, paragraph 73).
61


The good conduct guarantee of 1% of the value of the public contract, limited in accordance with the type of contract remains modest (see judgment of 6 October 2015, Orizzonte Salute, C‑61/14, EU:C:2015:655, paragraph 58), in particular for tenderers which must normally demonstrate a certain financial capacity. That guarantee may, next, and in any event, be constituted in the form of a bank guarantee. Finally, it has to be constituted only for the period between the filing of the application and final judgment.