Fastweb SpA v Azienda Sanitaria Locale di Alessandria.
Date: 2013-07-04
22. Thirdly, even though the TAR Piemonte does not indicate which specific provision of European Union law it wishes to have interpreted, it refers explicitly, in the question itself, to Directive 89/665, and the order for reference gives sufficient information to enable the Court to establish the elements of European Union law that require interpretation, account being taken of the matters to which the dispute before the referring court relates (see, by analogy, Case C‑346/05 Chateignier  [2006] ECR I‑10951, paragraph 19 and the case-law cited).
23. Fourthly and lastly, it does not appear that that dispute concerns a public procurement contract covered by one of the exemptions referred to in Article 1(1) of Directive 89/665. Accordingly, provided that the value of that contract reaches the threshold at which Directive 2004/18 becomes applicable, as provided for in Article 7 of that directive – a matter for the referring court to verify, although there is nothing to cast any doubt in that regard at this stage – Directives 89/665 and 2004/18 are applicable to a public contract such as the contract at issue in the main proceedings. In that regard, it should be borne in mind that the application of Directive 2004/18 is unaffected by the fact that a particular procedure for the award of a public procurement contract involves only national undertakings (see, to that effect, Case C‑213/07 Michaniki  [2008] ECR I‑9999, paragraph 29 and the case-law cited).
Consideration of the question referred
26. In that regard, a decision by which the contracting authority rejects a bid even before the stage at which the winning bid is selected is a decision in respect of which it must be possible to seek review under Article 1(1) of Directive 89/665, since that provision applies to all decisions taken by contracting authorities which are subject to the rules of European Union law on public procurement and makes no provision for any limitation as regards the nature and content of those decisions (see, inter alia, Case C‑249/01 Hackermüller  [2003] ECR I‑6319, paragraph 24 and the case-law cited).
27. Accordingly, in paragraph 26 of Hackermüller , the Court held that, if a review body were to refuse access to those procedures, on grounds of lack of locus standi , to a tenderer whose bid had been rejected even before the stage at which the winning bid is selected, the effect would be to deny that tenderer not only its right to seek review of the decision which it alleges to be unlawful, but also the right to challenge the validity of the ground for exclusion raised by that body to deny him the status of a person who has been or risks being harmed by the alleged unlawfulness.
28. Admittedly, if, in order to mitigate that situation, it is recognised that the tenderer has the right to challenge the validity of that ground of exclusion by means of an action for review which it brings in order to contest the lawfulness of the decision by which the contracting authority did not consider its bid as the best, it is conceivable that, at the end of that procedure, the review body may conclude that the bid actually should have been rejected at the outset and that the tenderer’s action for review falls to be dismissed on the ground that, given that fact, it neither has been nor risks being harmed by the infringement alleged (see Hackermüller , paragraph 27).
29. In such a situation, the tenderer which has brought an action for review of the decision awarding a public contract must have the right to challenge before the review body, and in accordance with the review procedure, the validity of the grounds on which its bid was rejected (see, to that effect, Hackermüller , paragraphs 28 and 29).
33. In the presence of such a finding, a counterclaim filed by the successful tenderer cannot bring about the dismissal of an action for review brought by a tenderer where the validity of the bid submitted by each of the operators is challenged in the course of the same proceedings and on identical grounds. In such a situation, each competitor can claim a legitimate interest in the exclusion of the bid submitted by the other, which may lead to a finding that the contracting authority is unable to select a lawful bid.
34. In the light of the foregoing, the answer to the question is that Article 1(3) of Directive 89/665 must be interpreted to the effect that, if, in review proceedings, the successful tenderer – having won the contract and filed a counterclaim – raises a preliminary plea of inadmissibility on the grounds that the tenderer seeking review lacks standing to challenge the award because its bid should have been rejected by the contracting authority by reason of its non-conformity with the technical requirements under the tender specifications, that provision precludes that action for review from being declared inadmissible as a consequence of the examination of that preliminary plea in the absence of a finding as to whether those technical requirements are met both by the bid submitted by the successful tenderer, which won the contract, and by the bid submitted by the tenderer which brought the main action for review.
Costs