CJEU - Joined Cases C-439/14 and C-488/14 / Judgment

Key facts of the case:

Reference for a preliminary ruling — Directives 89/665/EEC and 92/13/EEC — Public procurement — Review procedures — National legislation making the admissibility of appeals against the acts of a contracting authority subject to giving a ‘good conduct guarantee’ — Charter of Fundamental Rights of the European Union — Article 47 — Right to an effective remedy

Results (sanctions) and key consequences of the case:

...the Court (Third Chamber) hereby rules:

Article 1(1) to (3) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007, and Article 1(1) to (3) of Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, as amended by Directive 2007/66, and read in the light of Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that they do not preclude national legislation, such as that at issue in the main proceedings, which makes the admissibility of any action against an act of the contracting authority subject to the obligation for the applicant to constitute a good conduct guarantee that it provides to the contracting authority, if that guarantee must be refunded to the applicant whatever the outcome of the action.
Paragraphs referring to EU Charter
Accordingly, when they set out detailed procedural rules for legal actions intended to ensure the protection of rights conferred by Directives 89/665 and 92/13 on candidates and tenderers harmed by the decisions of contracting authorities, the Member States must ensure compliance with the right to an effective remedy and to a fair hearing, enshrined in Article 47 of the Charter.

As the Advocate General pointed out in point 37 of her Opinion, the good conduct guarantee thereby constitutes, as a pre-condition for getting any challenge examined, a limitation on the right to an effective remedy before a tribunal within the meaning of Article 47 of the Charter which, in accordance with Article 52(1) of the Charter can therefore be justified only if it is provided for by law, if it respects the essence of that right and, subject to the principle of proportionality, if it is necessary and genuinely meets objectives of general interest recognised by the EU or the need to protect the rights and freedoms of others (see judgment of 4 May 2016, Pillbox 38, C‑477/14, EU:C:2016:324, paragraph 160).

It must be held that, in the cases in the main proceedings, the legal basis for the good conduct guarantee is clearly and precisely defined by the OUG No 34/2006, so that it must be regarded as being provided for by the national legislation (see judgments of 27 May 2014, Spasic, C‑129/14 PPU, EU:C:2014:586; of 6 October 2015, Delvigne, C‑650/13, EU:C:2015:648, paragraph 47; and of 17 December 2015, WebMindLicenses, C‑419/14, EU:C:2015:832, paragraph 81). Furthermore, the fact that the good conduct guarantee may reach the substantial amount of EUR 25 000 or EUR 100 000 cannot lead to the conclusion that the obligation to give such a guarantee undermines the fundamental content of the right to an effective remedy since, in any event, that guarantee, cannot be kept by the contracting authority, whatever the outcome of the action.

Nonetheless, it must still be verified whether the good conduct guarantee corresponds to an objective in the general interest and whether, in the affirmative, it complies with the principle of proportionality within the meaning of Article 52(1) of the Charter.

A financial condition such as the good conduct guarantee at issue in the main proceedings is a measure liable to discourage frivolous challenges and ensure that all individuals have their actions dealt with as rapidly as possible, in the interest of the proper administration of justice, in accordance with Article 47, first and second paragraphs, of the Charter.

Having regard to the foregoing considerations, the answer to the questions referred is that Article 1(1) to (3) of Directive 89/665 and Article 1(1) to (3) of Directive 92/13, read in the light of Article 47 of the Charter, must be interpreted as meaning that they do not preclude national legislation, such as that at issue in the main proceedings, which makes the admissibility of any action against an act of the contracting authority subject to the obligation for the applicant to constitute a good conduct guarantee that it provides to the contracting authority, if that guarantee must be refunded to the applicant whatever the outcome of the action.