Key facts of the case:
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.
45. Having concluded that the amount of standard court fees applicable in Italian administrative proceedings on awards of contracts within the scope of Directives 2004/18 and 89/665 does not constitute, in and of itself, a restriction on the right of access to a court, it now falls to be determined whether there is any other reason to doubt their compliance with Article 47 of the Charter, particularly in the light of the accumulative nature of the fees imposed. If there is, a determination will need to be made as to whether the restriction found is prescribed by law, and is proportionate to the legitimate aim pursued.
46. Here I observe first that the court fees, including cumulative ones, are clearly prescribed by law. As to the legitimacy of the aim pursued, the European Court of Human Rights has held that the ‘aims pursued by the general rules on costs can be accepted as compatible with the general administration of justice, for example to fund the functioning of the judicial system and to act as a deterrent to frivolous claims.
47. Within the Italian administrative court system, proceedings relating to public procurement seem to enjoy special treatment, in the sense that they are dealt with more quickly than other actions, and increased court fees contribute to the financing of these courts enabling them to function expeditiously. This is in conformity with both the requirements of Directive 89/665 and the case-law of the European Court of Human Rights.
48. However, at the hearing Orizzonte Salute emphasised that an enterprise which is excluded from the contract award procedure at the beginning of the process has to challenge, under Italian law, both the decision concerning selection of the participant in the contract award procedure, and the award of the contract itself. Moreover, in Italian contract award procedures there are often other decisions of the contracting authority relating, for example, to access to contract documents which need to be challenged separately during the course of the proceedings before the Italian administrative courts. As far as Italian law is concerned, all these amount to applications on new grounds that trigger the levying of a supplementary court fee of the same size as the fee charged for the original application.
49. Orizzonte Salute alleges that it was charged EUR 2 000 for the original application and three times EUR 2 000 for supplementary applications, in addition to the EUR 2 000 payable for the fourth supplementary application that forms the object of this preliminary reference. None of these figures have been contested by the Italian Government or the defendants.
50. The Italian system in issue may render recourse to judicial action futile from an economic point of view, even if they do pursue the legitimate aim of covering the cost of the administration of justice and discouraging frivolous claims. For example, a cumulative court fee of EUR 20 000, (33) when combined with lawyers’ fees, may make it economically unviable to challenge contracts close to the threshold for the applicability of the directives in question. In this sense the fees in issue could dissuade undertakings that might otherwise institute legal challenge in the field of public procurement.
51. In my opinion this may conflict with the fundamental right to ‘judicial control’ guaranteed in Article 47 of the Charter. As the European Court of Human Rights has held, procedural rules are to serve the aim of legal certainty and the proper administration of justice. They are not to ‘form a sort of barrier preventing the litigant from having his or her case determined on the merits by the competent court’. (35)
52. In my opinion Article 2(1)(b) of Directive 89/665, as amended, refers to the ‘contract award procedure’ as the basic unit for judicial protection. Indeed, an enterprise seeking to participate in a contract award procedure intends to secure the contract for itself. From this perspective it is irrelevant if it has failed at the beginning of the award procedure, i.e. in the selection of the participants, or at the end, in other words, when the contract is awarded to another participant, or somewhere in between.
53. It is within the domain of Member State judicial autonomy to determine how national law on administrative proceedings conceptualises challenges against an individual contract award procedure. For example, whether judicial challenges relating to the later steps of the contract award procedure are conceived as developing on the original application challenging the decision on selection of the participants, or whether they are to be considered as new pleas with additional grounds. However, procedural rules are to serve legal certainty and the proper administration of justice.
54. Therefore it may be incompatible with Article 47 of the Charter to levy several and cumulative courts fees in judicial proceedings, at least if these cumulative fees have a dissuasive effect and are disproportionate when compared with the original fee, given that Article 2(1)(b) of Directive 89/665, as amended, envisages a single cause and objective, i.e. correcting any irregularity in the contract award procedure to the detriment of the enterprise.
55. It is for the national referring court to conduct the exercise described in paragraph 36 above, in the light of the relevant case-law of the Court (including the judgment in the case to hand) in order to determine whether the restricition on the right to ‘judicial control’ provided in Article 47 of the Charter caused by cumulative court fees is justified in terms of the proportionality test set out in Article 52(1) of the Charter.