Stefan Rudigier.
Date: 2018-09-20
43


It follows that it is Directive 2014/24 or Directive 2014/25 that is applicable in the main proceedings, not Directive 2004/17 or Directive 2004/18 as mentioned in the referring court’s questions (see, by analogy, judgment of 10 July 2014, Impresa Pizzarotti, C‑213/13, EU:C:2014:2067, paragraphs 31 to 33).
46


In this respect, the Court has held that, pursuant to Article 5(1) of Regulation No 1370/2007, for the purposes of awarding a contract for public passenger transport services by bus, only the provisions of Article 5(2) to (6) of that regulation do not apply, whereas the other provisions of the regulation remain applicable (judgment of 27 October 2016, Hörmann Reisen, C‑292/15, EU:C:2016:817, paragraph 41).
49


Regulation No 1370/2007, which refers only to public passenger transport services by rail and road, provides for methods of intervention in general schemes for public contracts, such as those governed by Directive 2014/24 or Directive 2014/25. That regulation thus contains special rules intended either to take the place of or to be added to the general rules of Directive 2014/24 or Directive 2014/25, depending on whether or not the applicable directive lays down rules in the fields governed by the regulation (see, to that effect, judgment of 27 October 2016, Hörmann Reisen, C‑292/15, EU:C:2016:817, paragraphs 44 to 47).
52


Article 7(2) of Regulation No 1370/2007 thus imposes obligations that are more specific than those of Directives 2014/24 and 2014/25 and, as lex specialis, prevail over them (see, to that effect, judgment of 27 October 2016, Hörmann Reisen, C‑292/15, EU:C:2016:817, paragraph 47).
61


In the absence of detailed procedural rules laid down by EU law for giving effect to a right, in accordance with settled case-law of the Court, it is for the national legal system of each Member State to lay down procedural rules to ensure the safeguarding of rights which individuals derive from EU law. Those rules must not, however, be less favourable than those governing similar domestic remedies (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness) (see, to that effect, judgment of 5 April 2017, Marina del Mediterráneo and Others, C‑391/15, EU:C:2017:268, paragraph 32 and the case-law cited).
62


As regards the principal of equivalence, it should be recalled that compliance with that principle requires the rule in question to apply without distinction to actions based on infringement of EU law and those based on infringement of national law having a similar purpose and cause of action (judgment of 8 July 2010, Bulicke, C‑246/09, EU:C:2010:418, paragraph 26 and the case-law cited).
64


As regards the principle of effectiveness, it should be recalled that the right economic operators derive from Article 7(2) of Regulation No 1370/2007 aims, first, as recital 29 of the regulation states in essence, to enable economic operators to react to the intentions of the contracting authority or entity, in particular the type of award the authority or entity intends to have recourse to (invitation to tender or direct award), and, second, to give economic operators time to prepare better for an invitation to tender.
66


In the case of a direct award, the lack of prior information may lead to an economic operator being unable to raise objections before the award is made, which may definitively deprive him of the possibility of taking part in the procurement procedure. Such a situation may call in question the principle of effectiveness.