Ministero dell’Interno v Fastweb SpA.
Date: 2014-09-11
34. At the outset, it should be borne in mind that the provisions of Directive 89/665, which are intended to protect tenderers against arbitrary behaviour on the part of the contracting authority, are designed to reinforce existing arrangements for ensuring the effective application of the EU rules on the award of public contracts, in particular where infringements can still be rectified (judgment in Commission  v Austria , C‑212/02, EU:C:2004:386, paragraph 20 and the case-law cited).
40. Since Article 2d(4) of Directive 89/665 constitutes an exception to the rule regarding the ineffectiveness of contracts, laid down in Article 2d(1) of that directive, it must be interpreted strictly (see, by analogy, the judgment in Commission v Germany , C‑275/08, EU:C:2009:632, paragraph 55 and the case-law cited). Nevertheless, the exception must be construed in a manner consistent with the objectives that it pursues. Thus, the principle of strict interpretation does not mean that the terms in which the exception is framed in Article 2d(4) of Directive 89/665 must be construed in such a way as to deprive that exception of its intended effect (see, by analogy, Future Health Technologies , C‑86/09, EU:C:2010:334, paragraph 30 and the case-law cited).
49. As emerges from the order for reference, the contracting authority in the case before the referring court, acting on the basis of Article 31(1)(b) of Directive 2004/18, used the negotiated procedure without prior publication of a contract notice. In that regard, it should be borne in mind that the negotiated procedure may only be used in the circumstances precisely delimited in Articles 30 and 31 of Directive 2004/18 and that, as compared with open and restricted procedures, that procedure is exceptional (see judgment in Commission  v Belgium , C‑292/07, EU:C:2009:246, paragraph 106 and the case-law cited).
58. It is settled law that the setting of reasonable time-limits for bringing proceedings, in the interests of legal certainty and for the protection of both the individual and the administrative authority concerned, is compatible with the fundamental right to effective judicial protection. Such time-limits must not make it impossible in practice or excessively difficult to exercise the rights conferred by the EU legal order (see, to that effect, the judgment in Pelati , C‑603/10, EU:C:2012:639, paragraph 30 and the case-law cited).
60. Accordingly, effective legal protection requires that the interested parties be informed of an award decision a reasonable period before the contract is concluded so that they have a real possibility of bringing proceedings and, in particular, of applying for interim measures pending conclusion of the contract (see, to that effect, judgments in Commission  v Spain , C‑444/06, EU:C:2008:190, paragraphs 38 and 39, and Commission  v Ireland , C‑456/08, EU:C:2010:46, paragraph 33).
65. The same holds true with regard to the principle of non-discrimination, which, in the field of public procurement, pursues the same objectives, including the free movement of services and the opening up of undistorted competition in all the Member States (see, inter alia, Wall , C‑91/08, EU:C:2010:182, paragraph 48, and Manova , C‑336/12, EU:C:2013:647, paragraph 28). As has already been stated in paragraph 61 above, the second indent of Article 2d(4) of Directive 89/665 is designed to ensure that all the candidates potentially concerned are in a position to take cognisance of the contracting authority’s decision to award the contract without prior publication of a contract notice and accordingly to bring proceedings for a review of its legality.