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Key facts of the case:

  1. The 19th century judge Sir James Matthew is reputed to have said that ‘in England, justice is open to all, like the Ritz hotel’. The case to hand provides an opportunity for the Court to consider whether the same applies to judicial proceedings relating to award of public contracts in Italy that are governed by EU public procurement law.
  2. Italian law provides that court fees applicable in judicial review proceedings relating to public procurement are considerably higher than those generally applicable in administrative proceedings. Moreover, these fees are cumulatively chargeable for every new procedural step that constitutes, under Italian law, a new plea or application on additional grounds.
  3. This raises the question of whether the relevant Italian rules are compatible with the objectives of Council Directive 89/665/EEC 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. The directive is to be interpreted in the light of principles of effectiveness and equivalence, and Article 47 of the Charter of Fundamental Rights of the European Union (‘Charter’) and its guarantee of access to justice.

Results (sanctions) and key consequences of the case:

56. For these reasons I propose that the preliminary question of the Tribunale Regionale di Giustizia Amministrativa di Trento be answered as follows:

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, interpreted in the light of Article 47 of the Charter of Fundamental Rights of the European Union and the principles of equivalence and effectiveness, does not preclude provisions of national law which set out a scale of standard court fees applicable only in administrative proceedings relating to public procurement provided that the level of the court fee does not constitute a barrier to the access to a court or render exercise of public procurement judicial review rights excessively difficult. It is not compatible with Directive 89/665, interpreted in the light of Article 47 of the Charter, to levy several and cumulative courts fees in judicial proceedings, in which an undertaking challenges the legality of a single contract award procedure in the sense of Article 2(1)(b) of Directive 89/665, unless this can be justified in terms of Article 52 (1) of the Charter, which is to be assessed by the national referring court.