Hochtief AG v Budapest Főváros Önkormányzata.
Date: 2018-08-07
22


The referring court states, in essence, that it follows from Directive 89/665 that actions for damages may be conditional on the prior annulment of the contested decision by an administrative authority or court (judgment of 26 November 2015, MedEval, C‑166/14, EU:C:2015:779, paragraph 35), with the result that Article 2 of that directive does not appear, in principle, to preclude a national legislative provision such as Article 350 of the Law on public contracts. However, the application of that provision, in conjunction with other provisions of the Law on public contracts and the Code of civil procedure, could have the effect of hindering the ability of a tenderer excluded from a negotiated procedure for the award of a public contract, such as Hochtief, to bring an action for damages because it is unable to rely on a decision definitively finding an infringement of the public procurement rules. It would, in those circumstances, be justified either to provide for the possibility of adducing evidence of such an infringement by other means, or to exclude the domestic rule for the sake of the principle of effectiveness, or, further, to interpret that rule in the light of EU law.
34


In consequence, it follows from the very wording of that provision that the Member States are, in principle, able to adopt a national procedural provision such as Article 350 of the Law on public contracts, which makes the possibility of asserting a claim under civil law in the event of an infringement of the rules governing public procurement and the award of public contracts subject to the condition that the infringement be definitively established by an arbitration committee, such as that in the main proceedings, or, in the context of judicial review of the decision made by such an arbitration committee, by a court (see, by analogy, judgment of 26 November 2015, MedEval, C‑166/14, EU:C:2015:779, paragraph 36).
35


Secondly, it must be recalled that, as the Court has repeatedly held, Directive 89/665 lays 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, inter alia, judgment of 15 September 2016, Star Storage and Others, C‑439/14 and C‑488/14, EU:C:2016:688, paragraph 42 and the case-law cited).
38


Indeed, as the Court has held on many occasions, it is for the Member States, when defining 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, to ensure that neither the effectiveness of Directives 89/665 nor the rights conferred on individuals by EU law are undermined (see, to that effect, judgment of 15 September 2016, Star Storage and Others, C‑439/14 and C‑488/14, EU:C:2016:688, paragraphs 43 and 44).
39


In that regard, the Court has held that the faculty granted to the Member States by Article 2(6) of Directive 89/665 was not without limits and remained subject to the condition that the action for annulment prior to any action for damages must be effective (see, to that effect, judgment of 26 November 2015, MedEval, C‑166/14, EU:C:2015:779, paragraphs 36 to 44). They must, in particular, ensure full compliance with the right to an effective remedy and to a fair hearing, in accordance with the first and second paragraphs of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) (see, to that effect, judgment of 15 September 2016, Star Storage and Others, C‑439/14 and C‑488/14, EU:C:2016:688, paragraph 46).
50


It is appropriate to point out that, unlike the limitation rule at issue in the case which gave rise to the judgment of 26 November 2015, MedEval (C‑166/14, EU:C:2015:779), the procedural rule laid down in Article 339/A of the Code of civil procedure does not undermine, as the Advocate General noted in points 47 to 49 of his Opinion, the right to an effective remedy and of access to an impartial court, guaranteed by the first and second paragraphs of Article 47 of the Charter (see, by analogy, judgment of 26 September 2013, Texdata Software, C‑418/11, EU:C:2013:588, paragraph 87).
51


Although, furthermore, it is true that that national procedural rule lays down a requirement that the pleas raised before the arbitration committee and those raised before the courts responsible for reviewing the decisions of that committee must be strictly the same, therefore making it impossible for a person involved to raise a new plea during that procedure, the fact remains that it contributes, as the Advocate General noted in point 49 of his Opinion, to maintaining the effectiveness of Directive 89/665, the objective of which is, as the Court has already held, to ensure that decisions taken unlawfully by contracting authorities may be reviewed effectively and as rapidly as possible (see, to that effect, judgment of 15 September 2016, Star Storage and Others, C‑439/14 and C‑488/14, EU:C:2016:688, paragraph 43 and the case-law cited).
52


In that regard, it is appropriate to recall that the Court has held that the principle that it is for the parties to proceedings to take the initiative, which means that the court is bound by the obligation to keep to the subject matter of the dispute and to base its decision on the facts put before it and to refrain from acting of its own motion, except in exceptional cases to safeguard the public interest, the rights of the defence and ensure the proper conduct of proceedings by, in particular, protecting them from the delays inherent in examination of new pleas (see, to that effect, judgments of 14 December 1995, van Schijndel and van Veen, C‑430/93 and C‑431/93, EU:C:1995:441, paragraphs 20 and 21, and of 7 June 2007, van der Weerd and Others, C‑222/05 to C‑225/05, EU:C:2007:318, paragraphs 34 and 35).
55


In accordance with the settled case-law of the Court, an interpretation which, in the exercise of the jurisdiction conferred on it by Article 267 TFEU, the Court gives of a rule of EU law, clarifies and defines, where necessary, the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force (see, inter alia, judgments of 27 March 1980, Denkavit italiana, 61/79, EU:C:1980:100, paragraph 16, and of 13 January 2004, Kühne & Heitz, C‑453/00, EU:C:2004:17, paragraph 21).