Marina del Mediterráneo SL and Others v Agencia Pública de Puertos de Andalucía.
Date: 2017-04-05
26


It should be noted that the wording of Article 1(1) of Directive 89/665 assumes, by using the words ‘as regards … procedures’, that every decision of a contracting authority falling under EU rules in the field of public procurement and liable to infringe them is subject to the judicial review provided for in Article 2(1)(a) and (b) of that directive. That provision thus refers generally to the decisions of a contracting authority without distinguishing between those decisions according to their content or time of adoption (see judgment of 11 January 2005, Stadt Halle and RPL Lochau, C‑26/03, EU:C:2005:5, paragraph 28 and the case-law cited).
27


That broad construction of the concept of a ‘decision’ taken by a contracting authority is confirmed by the fact that Article 1(1) of Directive 89/665 does not lay down any restriction with regard to the nature or content of the decisions it refers to. Moreover, a restrictive interpretation of that concept would be incompatible with the terms of Article 2(1)(a) of that directive which requires Member States to make provision for interim relief procedures in relation to any decision taken by the contracting authorities (see, to that effect, judgment of 11 January 2005, Stadt Halle and RPL Lochau, C‑26/03, EU:C:2005:5, paragraph 30 and the case-law cited).
30


As regards the time from which review procedures must be available, it is appropriate to recall that, as is apparent from its first and second recitals, Directive 89/665 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, in particular at a stage when infringements can still be corrected. To that effect, the third subparagraph of Article 1(1) of that directive requires Member States ‘to ensure that … decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible’ (see judgment of 12 December 2002, Universale-Bau and Others, C‑470/99, EU:C:2002:746, paragraph 74).
31


As the Court has already held, although Directive 89/665 has not formally laid down the time from which the possibility of review, as provided for in Article 1(1), must be open, the objective of that directive, as referred to in the preceding paragraph, does not authorise 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, to that effect, judgment of 11 January 2005, Stadt Halle and RPL Lochau (C‑26/03, EU:C:2005:5, paragraph 38).
32


It is settled case-law that, in the absence of EU rules laying down the time from which a possibility of review must be open, it is for national law to lay down the detailed rules of judicial procedures governing actions for safeguarding rights which individuals derive from EU law. Those detailed procedural rules must, however, be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness) (judgments of 30 September 2010, Strabag and Others, C‑314/09, EU:C:2010:567, paragraph 34; 6 October 2015, Orizzonte Salute, C‑61/14, EU:C:2015:655, paragraph 46; and 26 November 2015, MedEval, C‑166/14, EU:C:2015:779, paragraphs 32, 35 and 37).
33


In particular, 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 Directive 89/665 (see, to that effect, judgments of 3 March 2005, Fabricom, C‑21/03 and C‑34/03, EU:C:2005:127, paragraph 42; 6 October 2015, Orizzonte Salute, C‑61/14, EU:C:2015:655, paragraph 47; and 15 September 2016, Star Storage and Others, C‑439/14 and C‑488/14, EU:C:2016:688, paragraph 43).
34


As regards, more specifically, a decision such as that at issue in the main proceedings allowing a tenderer to participate in a public procurement procedure, the fact that the national legislation at issue in the main proceedings requires, in all cases, 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 infringes the provisions of Directive 89/665.
35


That interpretation is not called into question by the finding that full implementation of the objective sought by Directive 89/665 would be undermined if candidates and tenderers were allowed to invoke, at any stage of the award procedure, infringements of the rules of public procurement, thus obliging the contracting authority to restart the entire procedure in order to correct such infringements (judgment of 12 March 2015, eVigilo, C‑538/13, EU:C:2015:166, paragraph 51 and the case-law cited). That finding concerns the justification of reasonable time limits for applying for review of decisions which may be challenged and not the barring of an independent review of a decision allowing a tenderer to participate in a public procurement procedure, such as follows from the legislation at issue in the main proceedings.
36


Furthermore, it is for the referring court to determine whether the other conditions relating to the availability of review procedures, as provided for in Directive 89/665, are satisfied. In that regard, it should be noted that, in accordance with the third subparagraph of Article 1(1) and Article 1(3) of that directive, in order for the review of decisions taken by a contracting authority to be regarded as effective, review procedures must be available at least to any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement of EU public procurement law or rules transposing that law (see, to that effect, judgment of 5 April 2016, PFE, C‑689/13, EU:C:2016:199, paragraph 23). It is therefore, more specifically, for the national court to determine, in the context of the main proceedings, whether Marina del Mediterráneo and Others have or have had an interest in obtaining the contract in question and have been or risk being harmed by the decision of the Agency to admit the tender of the second temporary consortium.
39


In that regard, it should be recalled that the Court has already held that Articles 1(1) and 2(1)(b) of that directive are unconditional and sufficiently clear to create rights for individuals on which they may rely, where necessary, against contracting authorities (see judgment of 2 June 2005, Koppensteiner, C‑15/04, EU:C:2005:345, paragraph 38).