Orizzonte Salute - Studio Infermieristico Associato v Azienda Pubblica di Servizi alla persona San Valentino – Città di Levico Terme and Others.
Date: 2015-10-06
33. It is not for the Court to determine whether a decision of the referring court accepting an intervention before it has been taken in accordance with those rules. The Court must abide by such a decision in so far as it has not been overturned in any appeal procedures provided for by national law (see, by analogy, judgments in Radlberger Getränkegesellschaft and S. Spitz , C‑309/02, EU:C:2004:799, paragraph 26, and Burtscher , C‑213/04, EU:C:2005:731, paragraph 32).
35. The capacity of ‘party to the main proceedings’ within the meaning of Article 96(1) of the Rules of Procedure read in conjunction with Article 23 of the Statute of the Court of Justice cannot be accorded to a person and that person cannot be admitted in proceedings before the Court referred to in Article 267 TFEU where that person submits to a national court an application to intervene not in order to play an active role in the continuation of the proceedings before the national authority, but for the sole purpose of participating in the proceedings before the Court (see, to that effect, order in Football Association Premier League and Others , C‑403/08 and C‑429/08, EU:C:2009:789, paragraph 9).
43. Article 1(1) and (3) of Directive 89/665 requires the Member States to take the measures necessary to guarantee reviews which are effective and as rapid as possible against decisions of the contracting authorities which are incompatible with EU law and ensure wide availability of reviews with respect to any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement.
44. That directive leaves Member States a discretion in the choice of the procedural guarantees for which it provides, and the formalities relating thereto (see judgment in Combinatie Spijker Infrabouw-De Jonge Konstruktie and Others , C‑568/08, EU:C:2010:751, paragraph 57).
46. The Court has consistently held that, in the absence of EU rules governing the matter, it is for each Member State, in accordance with the principle of the procedural autonomy of the Member States, to lay down the detailed rules of administrative and judicial procedures governing actions for safeguarding rights which individuals derive from EU law. Those detailed procedural rules must, however, be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness) (judgments in Club Hotel Loutraki and Others , C‑145/08 and C‑149/08, EU:C:2010:247, paragraph 74, and eVigilo , C‑538/13, EU:C:2015:166, paragraph 39).
47. In addition, since such court fees amount to detailed procedural rules governing actions for safeguarding rights conferred by EU law on candidates and tenderers harmed by decisions of contracting authorities, they must not compromise the effectiveness of Directive 89/665 (see, to that effect, judgments in Universale-Bau and Others , C‑470/99, EU:C:2002:746, paragraph 72, and eVigilo , C‑538/13, EU:C:2015:166, paragraph 40).
48. As regards the principle of effectiveness, the Court has already held that it implies a requirement of judicial protection, guaranteed by Article 47 of the Charter, that is binding on the national court (see, to that effect, judgment in Sánchez Morcillo and Abril García , C‑169/14, EU:C:2014:2099, paragraph 35 and the case-law cited).
49. Accordingly, Article 1 of Directive 89/665 must be interpreted in the light of the fundamental rights set out in the Charter, in particular the right to an effective remedy before a court or tribunal, laid down in Article 47 thereof (see, to that effect, judgment in Ryneš , C‑212/13, EU:C:2014:2428, paragraph 29).
58. The court fees to be paid for bringing an action in administrative proceedings relating to public procurement, which do not exceed 2% of the value of the contract concerned, are not liable to render practically impossible or excessively difficult the exercise of rights conferred by EU public procurement law.
67. As has been noted in paragraph 46 of this judgment, the principle of equivalence requires that actions based on an infringement of national law and similar actions based on an infringement of EU law be treated equally and not that there be equal treatment of national procedural rules applicable to proceedings of a different nature such as civil proceedings, on the one hand, and administrative proceedings, on the other, or applicable to proceedings falling within two different branches of law (see judgment in ÖBB Personenverkehr , C‑417/13, EU:C:2015:38, paragraph 74).
72. The levying of multiple and cumulative court fees within the same administrative judicial proceedings is not, in principle, contrary to Article 1 of Directive 89/665, read in the light of Article 47 of the Charter, or to the principles of equivalence and effectiveness.
73. As a rule, such levying contributes to the proper functioning of the judicial system, since it amounts to a source of financing for the judicial activity of the Member States and discourages the submission of claims which are manifestly unfounded or which seek only to delay the proceedings.
79. In the light of the foregoing, the answer to the question referred must be as follows:
– Article 1 of Directive 89/665 and the principles of equivalence and effectiveness must be interpreted as not precluding national legislation which requires the payment of court fees such as the standard fee at issue in the main proceedings when an action relating to public procurement is brought before administrative courts.
– Article 1 of Directive 89/665 and the principles of equivalence and effectiveness do not preclude the charging of multiple court fees to an individual who brings several court actions concerning the same award of a public contract or that individual from having to pay additional court fees in order to be able to raise supplementary pleas concerning the same award of a public contract within ongoing judicial proceedings. However, in the event of objections being raised by a party concerned, it is for the national court to examine the subject-matter of the actions submitted by an individual or the pleas raised by that individual within the same proceedings. If the national court finds that the subject-matter of those actions is not in fact separate or does not amount to a significant enlargement of the subject-matter of the dispute that is already pending, it is required to relieve that individual of the obligation to pay cumulative court fees.
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