Hochtief Solutions AG Magyarországi Fióktelepe v Fővárosi Törvényszék.
Date: 2019-07-29
19


According to the information provided by the referring court, Hochtief Solutions, in support of its application for review, claimed that the question whether the results of the balance sheet were an appropriate indicator for assessing the economic and financial capacity of a tenderer, and the judgment of 18 October 2012, Édukövízig and Hochtief Construction (C‑218/11, EU:C:2012:643), had not, in fact, been subject to any examination. According to Hochtief Solutions, that omission constitutes a ‘fact’, within the meaning of Article 260(1)(a) of the Code of Civil Procedure, capable of justifying the opening of the judgment of the Fővárosi Törvényszék (Budapest High Court) to review. Relying, in particular, on the judgment of 13 January 2004, Kühne & Heitz (C‑453/00, EU:C:2004:17, paragraphs 26 and 27), Hochtief Solutions argued that, where a judgment of the Court of Justice could not be taken into account in the main proceedings on the ground that it was out of time, it may and must be examined in the context of a review.
30


In that regard, it should be borne in mind that, according to settled case-law of the Court, the procedure laid down in Article 267 TFEU is an instrument for cooperation between the Court of Justice and the national courts. It follows that it is for the national courts alone which are seised of the case and which are responsible for the judgment to be delivered to determine, in view of the special features of each case, both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they put to the Court. Consequently, where questions submitted by national courts concern the interpretation of a provision of EU law, the Court is, in principle, obliged to give a ruling (judgment of 28 March 2019, Verlezza and Others, C‑487/17 to C‑489/17, EU:C:2019:270, paragraphs 27 and 28 and the case-law cited).
31


However, the Court may refuse to rule on a question referred for a preliminary ruling by a national court, inter alia, where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose or where the problem is hypothetical (judgment of 28 March 2019, Verlezza and Others, C‑487/17 to C‑489/17, EU:C:2019:270, paragraph 29 and the case-law cited).
35


In the first place, it should be noted that, with regard to the conditions under which a Member State may be rendered liable to make reparation for loss and damage caused to individuals as a result of breaches of EU law for which it is responsible, the Court has repeatedly held that individuals who have been harmed have a right to reparation if three conditions are met: the rule of EU law infringed must be intended to confer rights on them; the breach of that rule must be sufficiently serious; and there must be a direct causal link between that breach and the loss or damage sustained by those individuals (see, to that effect, in particular, judgments of 5 March 1996, Brasserie du pêcheur and Factortame, C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 51; of 30 September 2003, Köbler, C‑224/01, EU:C:2003:513, paragraph 51; and of 28 July 2016, Tomášová, C‑168/15, EU:C:2016:602, paragraph 22).
36


It should also be borne in mind that the liability of a Member State for damage caused by a decision of a court adjudicating at final instance which breaches a rule of EU law is governed by the same conditions (see, to that effect, judgments of 30 September 2003, Köbler, C‑224/01, EU:C:2003:513, paragraph 52, and of 28 July 2016, Tomášová, C‑168/15, EU:C:2016:602, paragraph 23).
37


Furthermore, the three conditions mentioned in paragraph 35 of the present judgment are necessary and sufficient to found a right in favour of individuals to obtain redress, although this does not mean that a Member State cannot incur liability under less strict conditions on the basis of national law (see, to that effect, inter alia, judgments of 5 March 1996, Brasserie du pêcheur and Factortame, C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 66, and of 30 September 2003, Köbler, C‑224/01, EU:C:2003:513, paragraph 57).
39


In the second place, as is apparent from the case-law of the Court, the principle of res judicata does not preclude recognition of the principle of liability of a Member State for the decision of a national court or tribunal adjudicating at final instance which infringes a rule of EU law. Given, inter alia, that an infringement, by such a decision, of rights deriving from EU law cannot normally be corrected thereafter, individuals cannot be deprived of the possibility of holding the State liable in order to secure legal protection of their rights (see, to that effect, judgments of 30 September 2003, Köbler, C‑224/01, EU:C:2003:513, paragraph 34, and of 24 October 2018, XC and Others, C‑234/17, EU:C:2018:853, paragraph 58 and the case-law cited).
40


In the third place, it is clear from the settled case-law of the Court that it is, in principle, for the national courts to apply the conditions mentioned in paragraph 35 of the present judgment for establishing the liability of a Member State for damage caused to individuals by breaches of EU law, for which the State can be held responsible, in accordance with the guidelines laid down by the Court for the application of those conditions (see, to that effect, judgments of 30 September 2003, Köbler, C‑224/01, EU:C:2003:513, paragraph 100, and of 4 October 2018, Kantarev, C‑571/16, EU:C:2018:807, paragraph 95).
41


In that connection, as regards, in particular, the second of those conditions, it should be borne in mind that, according to the Court’s case-law, the liability of a Member State for damage caused to individuals by reason of an infringement of EU law attributable to a national court adjudicating at final instance can be incurred only in the exceptional case where the national court adjudicating at final instance has manifestly infringed the applicable law (judgments of 30 September 2003, Köbler, C‑224/01, EU:C:2003:513, paragraph 53, and of 13 June 2006, Traghetti del Mediterraneo, C‑173/03, EU:C:2006:391, paragraphs 32 and 42).
42


In order to determine whether a sufficiently serious infringement of EU law has occurred, the national court before which a claim for compensation has been brought must take account of all the factors which characterise the situation brought before it. The factors which may be taken into consideration in that regard include, in particular, the degree of clarity and precision of the rule breached, the scope of the room for assessment that the infringed rule confers on national authorities, whether the infringement and the damage caused were intentional or involuntary, whether any error of law was excusable or inexcusable, and the issue, where applicable, of whether the position taken by an EU institution may have contributed to the adoption or maintenance of national measures or practices contrary to EU law, and non-compliance by the national court in question with its obligation to make a reference for a preliminary ruling under the third paragraph of Article 267 TFEU (see, to that effect, judgments of 5 March 1996, Brasserie du pêcheur and Factortame, C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 56; of 30 September 2003, Köbler, C‑224/01, EU:C:2003:513, paragraphs 54 and 55; and of 28 July 2016, Tomášová, C‑168/15, EU:C:2016:602, paragraph 25).
43


In any event, an infringement of EU law is sufficiently serious if it was made in manifest breach of the relevant case-law of the Court (judgments of 30 September 2003, Köbler, C‑224/01, EU:C:2003:513, paragraph 56; of 25 November 2010, Fuß, C‑429/09, EU:C:2010:717, paragraph 52; and of 28 July 2016, Tomášová, C‑168/15, EU:C:2016:602, paragraph 26).
45


In the fourth place, where the conditions referred to in paragraph 35 of the present judgment are satisfied, the Member State must make reparation for the consequences of the loss and damage occasioned in accordance with the domestic rules on liability, provided that the conditions for reparation of loss and damage laid down by national law are not less favourable than those relating to similar domestic claims (principle of equivalence) and are not such as in practice to make it impossible or excessively difficult to obtain reparation (principle of effectiveness) (see, to that effect, judgments of 5 March 1996, Brasserie du pêcheur and Factortame, C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 67; of 30 September 2003, Köbler, C‑224/01, EU:C:2003:513, paragraph 58; and of 28 July 2016, Tomášová, C‑168/15, EU:C:2016:602, paragraph 38).
46


In that regard, it follows from the case-law of the Court that reparation for loss or damage caused to individuals as a result of breaches of EU law must be commensurate with the loss or damage sustained so as to ensure the effective protection for their rights (see, to that effect, judgments of 5 March 1996, Brasserie du pêcheur and Factortame, C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 82, and of 25 November 2010, Fuß, C‑429/09, EU:C:2010:717, paragraph 92).
50


In that connection, it must be recalled that Article 1(1) of Directive 89/665 and Article 1(1) of Directive 92/13 require the Member States to adopt the measures necessary to ensure that the decisions taken by the contracting authorities in public contract award procedures coming within the scope of those directives may be reviewed effectively and, in particular, as rapidly as possible, on the ground that they have infringed EU law on public procurement or the national rules transposing that law (judgment of 15 September 2016, Star Storage and Others, C‑439/14 and C‑488/14, EU:C:2016:688, paragraph 39).
51


Those provisions, which are intended to protect tenderers against arbitrary behaviour on the part of the contracting authority, are thus designed to reinforce the existence, in all Member States, of effective remedies, so as to ensure the effective application of the EU rules on the award of public contracts, in particular where infringements can still be rectified (judgment of 15 September 2016, Star Storage and Others, C‑439/14 and C‑488/14, EU:C:2016:688, paragraph 41 and the case-law cited).
52


Neither Directive 89/665 nor Directive 92/13 contains any provisions specifically governing the conditions under which those review procedures may be used. Those directives lay 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, to that effect, judgment of 15 September 2016, Star Storage and Others, C‑439/14 and C‑488/14, EU:C:2016:688, paragraph 42).
54


Attention should be drawn to the importance, both in the legal order of the European Union and in national legal systems, of the principle of res judicata. In order to ensure both stability of the law and of legal relations and the sound administration of justice, it is important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after the passing of the time limits provided for in that connection can no longer be called into question (judgments of 10 July 2014, Impresa Pizzarotti, C‑213/13, EU:C:2014:2067, paragraph 58, and of 6 October 2015, Târşia, C‑69/14, EU:C:2015:662, paragraph 28).
55


Consequently, EU law does not require a national court to disapply domestic rules of procedure conferring finality on a judgment, even if to do so would make it possible to remedy a domestic situation which is incompatible with EU law (judgments of 10 July 2014, Impresa Pizzarotti, C‑213/13, EU:C:2014:2067, paragraph 59, and of 6 October 2015, Târşia, C‑69/14, EU:C:2015:662, paragraph 29).
56


It has been held that EU law does not require a judicial body automatically to reverse a judgment having the authority of res judicata in order to take into account the interpretation of a relevant provision of EU law adopted by the Court (see, to that effect, judgments of 10 July 2014, Impresa Pizzarotti, C‑213/13, EU:C:2014:2067, paragraph 60, and of 6 October 2015, Târșia, C‑69/14, EU:C:2015:662, paragraph 38).
58


It is apparent from that judgment that the principle of sincere cooperation, laid down in Article 4(3) TEU, imposes on an administrative body, when so requested, an obligation to review a final administrative decision in order to take account of the interpretation of the relevant provision given in the meantime by the Court, in particular where that administrative body has, under national law, the power to reopen that decision (judgment of 13 January 2004, Kühne & Heitz, C‑453/00, EU:C:2004:17, paragraph 28).
60


In that regard, it is apparent from the case-law of the Court that, if the applicable domestic rules of procedure provide the possibility, under certain conditions, for a national court to reverse a decision having the authority of res judicata in order to render the situation arising from that decision compatible with national law, that possibility must prevail if those conditions are met, in accordance with the principles of equivalence and effectiveness, so that that situation is brought back into line with EU legislation (see, to that effect, judgment of 10 July 2014, Impresa Pizzarotti, C‑213/13, EU:C:2014:2067, paragraph 62).
64


Nonetheless, it should, in any event, be borne in mind that it is settled case-law that, by reason, inter alia, of the fact that an infringement, by a final decision of a court of tribunal, of rights deriving from EU law cannot normally be corrected thereafter, individuals cannot be deprived of the possibility of holding the State liable in order to obtain legal protection of their rights (judgments of 6 October 2015, Târşia, C‑69/14, EU:C:2015:662, paragraph 40, and of 24 October 2018, XC and Others, C‑234/17, EU:C:2018:853, paragraph 58).