Impresa Pizzarotti & C. SpA v Comune di Bari and Others.
Date: 2014-07-10
31. In that regard, it should be borne in mind that the applicable directive is, as a rule, the one in force when the contracting authority chooses the type of procedure to be followed and decides definitively whether it is necessary for a prior call for competition to be issued for the award of a public contract (judgment in Commission  v Netherlands , C‑576/10, EU:C:2013:510, paragraph 52 and the case-law cited). Conversely, a directive is not applicable if the period prescribed for its transposition expired after that point in time (see, to that effect, the judgment in Commission  v France , C‑337/98, EU:C:2000:543, paragraphs 41 and 42).
32. In the present case, Directives 92/50 and 93/37 were applicable on 14 August 2003, the date on which the Comune di Bari published a ‘market investigation’ notice with the aim of creating a judicial complex in Bari. Those directives were also applicable when, in September 2004, following the amendment to the financial framework in connection with the complete removal of public funding, the Comune di Bari decided, according to the information which it has submitted to the Court, that it was necessary to initiate a new selection procedure rather than negotiate the conclusion of a contract ‘for the lease of something in the future’ directly with Pizzarotti without first issuing a new call for competition.
33. By contrast, Directive 2004/18 was not applicable on those dates, as — pursuant to Article 80(1) thereof — the period prescribed for transposition of that directive did not expire until 31 January 2006.
35. In those circumstances, the fact that the referring court erred in identifying the provisions of EU law to be applied to the present case cannot affect the admissibility of the questions referred (see, to that effect, the judgment in Zurita García and Choque Cabrera , C‑261/08 and C‑348/08, EU:C:2009:648, paragraph 39).
40. In that regard, it should be borne in mind from the outset, first, that the question whether a transaction constitutes a public works contract for the purposes of EU legislation is one of EU law. The classification of the proposed contract as a ‘lease’, highlighted by Pizzarotti and the Italian Government, is not decisive in that regard (see, to that effect, the judgment in Commission  v Germany , C‑536/07, EU:C:2009:664, paragraph 54 and the case-law cited).
41. Second, where a contract contains both elements relating to a public works contract and elements relating to another type of contract, it is necessary to refer to the main object of that contract in order to determine its legal classification and the EU rules applicable (see, to that effect, the judgments in Auroux and Others , C‑220/05, EU:C:2007:31, paragraph 37; Commission  v Italy , C‑412/04, EU:C:2008:102, paragraph 47; and Commission  v Germany , EU:C:2009:664, paragraph 57).
42. In the main proceedings, it can be seen from the case-file before the Court that, at the time when the conclusion of the contract in question was proposed to the Comune di Bari by Pizzarotti, the works for creating the complex referred to in that contract had not yet begun. In those circumstances, the main object of the contract is the creation of that complex, which the subsequent letting of the complex necessarily presupposes (see, to that effect, the judgment in Commission  v Germany , EU:C:2009:664, paragraph 56).
43. As the German Government has pointed out, it is also necessary, in order for it to be possible to conclude that there is a ‘public works contract’ for the purposes of Directive 93/37, that the execution of the planned work corresponds to the requirements specified by the contracting authority (judgment in Commission  v Germany , EU:C:2009:664, paragraph 55).
44. Such is the case where that authority has taken measures to define the characteristics of the work or, at the very least, has had a decisive influence on its design (see, to that effect, the judgment in Helmut Müller , C‑451/08, EU:C:2010:168, paragraph 67).
50. However, it should be borne in mind in that regard that the decisive element for the purposes of the classification of the contract concerned is the main object of that contract, not the amount paid to the contractor or the arrangements for payment (judgment in Commission  v Germany , EU:C:2009:664, paragraph 61).
54. In that regard, it should be borne in mind that, in the absence of EU legislation in this area, the rules implementing the principle of res judicata  are a matter for the national legal order, in accordance with the principle of the procedural autonomy of the Member States, but must be consistent with the principles of equivalence and effectiveness (see, to that effect, the judgment in Fallimento Olimpiclub , C‑2/08, EU:C:2009:506, paragraph 24 and the case-law cited).
58. On the other hand, if the referring court is led to the view that the correct application of that legislation conflicts, having regard to the applicable domestic rules of procedure, with its Judgment No 4267/2007 or with its decisions of 15 April and 3 December 2010 implementing that judgment, 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 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 expiry of the time-limits provided for in that connection can no longer be called into question (judgments in Kapferer , C‑234/04, EU:C:2006:178, paragraph 20; Commission  v Luxembourg , C‑526/08, EU:C:2010:379, paragraph 26; and ThyssenKrupp Nirosta v Commission , C‑352/09 P, EU:C:2011:191, paragraph 123).
59. Therefore, 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 (see, to that effect, the judgments in Eco Swiss , C‑126/97, EU:C:1999:269, paragraphs 46 and 47; Kapferer , EU:C:2006:178, paragraphs 20 and 21; Fallimento Olimpiclub , EU:C:2009:506, paragraphs 22 and 23; Asturcom Telecomunicaciones , C‑40/08, EU:C:2009:615, paragraphs 35 to 37; and Commission v Slovakia , C‑507/08, EU:C:2010:802, paragraphs 59 and 60).
60. Accordingly, EU law does not require a judicial body automatically to go back on 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 after delivery of that judgment.
61. That analysis cannot be undermined by the judgment in Lucchini (C‑199/05, EU:C:2007:434), cited by the referring court: it was in a highly specific situation, in which the matters at issue were principles governing the division of powers between the Member States and the European Union in the area of State aid, that the Court found, in essence, that EU law precludes the application of a provision of national law, such as Article 2909 of the Italian Civil Code, which seeks to lay down the principle of res judicata , in so far as the application of that provision would prevent the recovery of State aid which was granted in breach of EU law and which has been found to be incompatible with the common market in a decision of the European Commission which has become final (see, to that effect, the judgment in Fallimento Olimpiclub , EU:C:2009:506, paragraph 25). However, issues of that nature, relating to the division of powers, do not arise in the present case.
62. That said, if the applicable domestic rules of procedure provide the possibility, under certain conditions, for a national court to go back on a decision having the authority of res judicata  in order to render the situation compatible with national law, that possibility must prevail if those conditions are met, in accordance with the principles of equivalence and effectiveness, so that the situation at issue in the main proceedings is brought back into line with the EU legislation on public works contracts.
63. In that regard, it should be emphasised that that legislation contains fundamental rules of EU law in that it is intended to ensure the application of the principles of equal treatment of tenderers and of transparency in order to open up undistorted competition in all the Member States (see, to that effect, the judgments in Commission  v Portugal , C‑70/06, EU:C:2008:3, paragraph 40; Michaniki , C‑213/07, EU:C:2008:731, paragraph 55; Commission  v Cyprus , C‑251/09, EU:C:2011:84, paragraphs 37 to 39; and Manova , C‑336/12, EU:C:2013:647, paragraph 28).