NAMA Symvouloi Michanikoi kai Meletites A.E. – LDK Symvouloi Michanikoi A.E. and Others v Archi Exetasis Prodikastikon Prosfigon (AEPP) and Attiko Metro AE.
Date: 2021-03-24
According to settled case-law, although questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court of Justice to determine, enjoy a presumption of relevance, the fact nonetheless remains that the procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court of Justice and national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they require in order to resolve the disputes before them. The justification for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute. As is apparent from the actual wording of Article 267 TFEU, the question referred for a preliminary ruling must be ‘necessary’ to enable the referring court to ‘give judgment’ in the case before it. Furthermore, under Article 94(c) of the Rules of Procedure of the Court, the referring court must set out precisely the reasons for its uncertainty as to the interpretation of EU law (judgment of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367, paragraphs 167 and 168).
Tasked with interpreting the provisions 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 (OJ 1989 L 395, p.33), the Court has ruled that, in the context of a procurement procedure for the award of public contracts, tenderers whose exclusion is requested have an equivalent legitimate interest in the exclusion of the bids submitted by the other tenderers with a view to  obtaining the contract (see, to that effect, judgment of 4 July 2013, Fastweb, C‑100/12, EU:C:2013:448, paragraph 33). In paragraph 27 of the judgment of 5 April 2016, PFE (C‑689/13, EU:C:2016:199), the Court held that, on the one hand, the exclusion of one tenderer may lead to another tenderer directly being awarded the contract in the same procedure and, on the other hand, if both tenderers are excluded and a new public procurement procedure is launched, each of those tenderers may participate in the new procedure and thus obtain the contract indirectly. Furthermore, in paragraph 29 of the same judgment, the Court specified that the number of participants in the public procurement procedure concerned as well as the number of participants who have instigated review procedures and the differing legal grounds relied on by those participants are irrelevant to the question of the applicability of the principle of the case-law established by the judgment of 4 July 2013, Fastweb (C‑100/12, EU:C:2013:448).
The case-law principle set out in the preceding paragraph, which was developed at a time when Directive 89/665 was in force, can be transposed to the system of judicial protection established by Directive 92/13 (see, to that effect, judgment of 11 May 2017, Archus and Gama,  C‑131/16, EU:C:2017:358, paragraphs 50 to 53).
Furthermore, as follows from the second recital of Directive 92/13, that directive is intended to strengthen the existing mechanisms, both at national and EU levels, to ensure the effective application of the directives relating to public procurement. To that end, the fourth subparagraph of Article 1(1) of that directive requires Member States ‘to ensure that … decisions taken by the contracting bodies may be reviewed effectively and, in particular, as rapidly as possible’ (see, by analogy, judgment of 5 April 2017, Marina de Mediterráneo and Others, C‑391/15, EU:C:2017:268, paragraph 30).
The objective of effective and rapid judicial protection, in particular by interim measures, pursued by that directive does not therefore authorise the Member States to make the exercise of the right to apply for review conditional on the fact that the public procurement procedure in question has formally reached a particular stage (see, by analogy, judgment of 11 January 2005, Stadt Halle and RPL Lochau, C‑26/03, EU:C:2005:5, paragraph 38, and judgment of 5 April 2017, Marina del Mediterráneo and Others, C‑391/15, EU:C:2017:268, paragraph 31).
More specifically, a national law which requires, in any event, a tenderer to wait for  a decision awarding the contract in question before it may apply for a review of a  decision allowing  another tenderer to participate in that procurement procedure  would infringe the provisions of Directive 92/13 (see, by analogy, judgment of 5 April 2017, Marina del Mediterráneo and Others, C‑391/15, EU:C:2017:268, paragraph 34).
Moreover, in paragraph 29 of the judgment of 5 April 2016, PFE (C‑689/13, EU:C:2016:199), the Court noted that the fact that differing pleas have been advanced by the tenderers who were excluded from the procurement procedure at issue is not relevant for the application of the case-law principle recalled in paragraph 31 above.
That being so, the case-law principle recalled in paragraph 31 above applies only on condition that the exclusion of the tenderer was not confirmed by a decision which has  become definitive (see, to that effect, judgments of 11 May 2017, Archus and Gama, C‑131/16, EU:C:2017:358, paragraphs 57 and 58, and of 5 September 2019, Lombardi, C‑333/18, EU:C:2019:675, paragraphs 31  and 32).
Such an interpretation is not invalidated by the judgment of 21 December 2016, Bietergemeinschaft Technische Gebäudebetreuung und Caverion Österreich (C‑355/15, EU:C:2016:988), mentioned by the referring court in that context. Although it is true that it follows from paragraphs 13 to 16, 31 and 36 of that judgment that the tenderer whose bid had been excluded by the contracting authority from a procurement procedure for the award of public contracts could be refused access to a review of the decision awarding the public contract, in the case giving rise to that judgment, which did not concern an application before a national review authority, the decision to exclude that tenderer had been confirmed by a decision which had become definitive before the court hearing the review of the contract award decision delivered its decision, with the result that that tenderer had to be regarded as having been definitively excluded from the public procurement procedure at issue (see, to that effect, judgment of 5 September 2019, Lombardi, C‑333/18, EU:C:2019:675, paragraph 31).