Santex SpA v Unità Socio Sanitaria Locale n. 42 di Pavia, and Sca Mölnlycke SpA, Artsana SpA and Fater SpA.
Date: 2003-02-27
47.  It must be pointed out in this regard that the detailed rules for the judicial review of decisions adopted in connection with procedures for the award of public contracts are not covered by Directive 93/36, but only by Directive 89/665.  The latter directive lays down the minimum conditions to be satisfied by the review procedures established in the national legal systems, so as to ensure compliance with the requirements of Community law concerning public contracts.
50.  In paragraph 79 of its judgment in Case C-470/99   Universale-Bau and Others   [2002] ECR I-11617, the Court held that Directive 89/665 does not preclude national legislation which provides that any application for review of a contracting authority's decision must be commenced within a time-limit laid down to that effect and that any irregularity in the award procedure relied upon in support of such application must be raised within the same period, if it is not to be out of time, with the result that, when that period has passed, it is no longer possible to challenge such a decision or to raise such an irregularity, provided that the time-limit in question is reasonable.
51.  In particular, the Court noted that, whilst it is for the internal legal order of each Member State to establish time-limits in respect of the remedies intended to protect rights conferred by Community law on candidates and tenderers harmed by decisions of contracting authorities, those time-limits must not compromise the effectiveness of Directive 89/665, which seeks to guarantee that unlawful decisions of contracting authorities can be subjected to effective review which is as swift as possible (Universale-Bau  , paragraphs 71, 72 and 74).
52.  It was in those circumstances that the Court held that the setting of reasonable limitation periods for bringing proceedings satisfies, in principle, the requirement of effectiveness under Directive 89/665, since it is an application of the fundamental principle of legal certainty (Universale-Bau  , paragraph 76).
55.  Second, it must be held that such a period, which runs from the date of notification of the act or the date on which it is apparent that the party concerned became fully aware of it, is also in accordance with the principle of effectiveness since it is not in itself likely to render virtually impossible or excessively difficult the exercise of any rights which the party concerned derives from Community law.
56.  However, for the purpose of applying the principle of effectiveness, each case which raises the question whether a national procedural provision renders application of Community law impossible or excessively difficult must be analysed by reference, in particular, to the role of that provision in the procedure, its progress and its special features, viewed as a whole (see Case C-312/93   Peterbroeck and Others   [1995] ECR I-4599, paragraph 14).
57.  Consequently, although a limitation period such as that at issue in the main proceedings is not in itself contrary to the principle of effectiveness, the possibility that, in the context of the particular circumstances of the case before the referring court, the application of that time-limit may entail a breach of that principle cannot be excluded.
58.  From that point of view, it is necessary to take into consideration the circumstance that, in this particular case, although the disputed clause was brought to the notice of the parties concerned at the time of the publication of the notice of invitation to tender, the contracting authority created, by its conduct, a state of uncertainty as to the interpretation to be given to that clause and that that uncertainty was removed only by the adoption of the exclusion decision.
59.  As is apparent from the information provided by the referring court, USL indicated initially that it would take account of the reservations expressed by Santex and that it would not apply the economic condition laid down by the disputed clause at the tender admission stage.  It was only by means of the exclusion decision, which eliminated from the tendering procedure all tenderers who did not satisfy that condition, that the contracting authority stated its definitive position regarding the interpretation of the disputed clause.
60.  It must therefore be acknowledged that, in the circumstances of the case in the main proceedings, it was only when it was informed of the exclusion decision that the tenderer harmed was able to find out what interpretation the contracting authority actually placed upon that clause of the notice of invitation to tender.  In view of the fact that, at that stage, the period prescribed for bringing proceedings for review of that notice had already expired, that tenderer was deprived, under the rules on limitation periods, of any opportunity to plead before a court, in proceedings for review of the subsequent decisions which caused it harm, the incompatibility of that interpretation with Community law.
61.  In the circumstances of the case in the main proceedings, the changing conduct of the contracting authority may be considered, in view of a limitation period, to have rendered excessively difficult the exercise by the harmed tenderer of the rights conferred on him by Community law.
62.  Since the referring court alone has jurisdiction to interpret and apply the national legislation, it falls to it, in circumstances such as those of the case in the main proceedings, to interpret, as far as is at all possible, the rules establishing that limitation period in such a way as to ensure observance of the principle of effectiveness deriving from Directive 89/665.
63.  As is clear from the case-law of the Court, when applying domestic law the national court must, as far as is at all possible, interpret it in a way which accords with the requirements of Community law (see, in particular, Case C-165/91   Van Munster   [1994] ECR I-4661, paragraph 34, and Case C-262/97   Engelbrecht   [2000] ECR I-7321, paragraph 39).
64.  Where application in accordance with those requirements is not possible, the national court must fully apply Community law and protect the rights conferred thereunder on individuals, if necessary disapplying any provision in so far as its application would, in the circumstances of the case, lead to a result contrary to Community law (see, in particular, Case C-347/96   Solred   [1998] ECR I-937, paragraph 30, and   Engelbrecht  , paragraph 40).