CJEU Case C-497/20 / Judgment

1) This request for a preliminary ruling concerns the interpretation of Article 4(3) and Article 19(1) TEU, and Article 2(1) and (2) and Article 267 TFEU, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), and also of Article 1(1) and (3) and Article 2(1) 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 (OJ 1989 L 395, p. 33), as amended by Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 (OJ 2014 L 94, p. 1) (‘Directive 89/665’).

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32) The referring court therefore seeks a ruling from the Court of Justice on whether the right to an effective remedy, as laid down, in particular, in the second subparagraph of Article 19(1) TEU and in the first paragraph of Article 47 of the Charter, is such that it cannot be impossible, as it would be in particular under the eighth paragraph of Article 111 of the Constitution as interpreted by judgment No 6/2018, to rely, in the context of an appeal in cassation against a judgment of the Consiglio di Stato (Council of State), on grounds of appeal alleging an infringement of EU law.

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34) In those circumstances, the Corte suprema di cassazione (Supreme Court of Cassation) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

1. 'Do Article 4(3) TEU, Article 19(1) TEU, Article 2(1) and (2) TFEU, and Article 267 TFEU, read in the light of Article 47 of the [Charter], preclude an interpretative practice such as that regarding the eighth paragraph of Article 111 of the Italian Constitution, Article 360(1) … and Article 362(1) of the Italian Code of Civil Procedure, and Article 110 of the Italian Code of Administrative Procedure – under which provisions an appeal in cassation against a judgment of the Consiglio di Stato (Council of State) may be brought for “reasons of jurisdiction” – such as that which emerges from Judgment No 6/2018 of the Corte costituzionale (Constitutional Court) …, in which it has been held, marking a departure from the approach previously taken, that the remedy of an appeal in cassation, on grounds of a “lack of jurisdiction”, is not available for the purpose of challenging judgments in which the Consiglio di Stato (Council of State) has applied interpretative practices developed nationally but in conflict with judgments of the Court of Justice, in sectors governed by EU law (in the present case, public procurement) and with regard to which the Member States have waived their right to exercise sovereign powers in a manner incompatible with EU law, with the effect of consolidating infringements of EU law that might have been rectified using the remedy of an appeal in cassation and of undermining the uniform application of EU law and the effectiveness of the judicial protection afforded to individuals in legal situations of EU significance, contrary to the requirement that EU law be fully and duly applied by every court in a manner necessarily consistent with its correct interpretation by the Court of Justice, regard being had to the limits on the “procedural autonomy” of the Member States in the structuring of their rules of procedure?
2. Do Article 4(3) TEU, Article 19(1) TEU, and Article 267 TFEU, read in the light of Article 47 of the [Charter], preclude the eighth paragraph of Article 111 of the Italian Constitution, Article 360(1) … and Article 362(1) of the Italian Code of Civil Procedure, and Article 110 of the Italian Code of Administrative Procedure from being interpreted and applied, as they have been in national judicial practice, in such a manner that an appeal in cassation before the Combined Chambers [of the Corte suprema di cassazione (Supreme Court of Cassation)] for “reasons of jurisdiction”, on grounds of a “lack of jurisdiction”, cannot be brought for the purpose of challenging a judgment in which the Consiglio di Stato (Council of State), ruling in a dispute involving issues concerning the application of EU law, refrains, without reason, from making a reference to the Court of Justice for a preliminary ruling, where the conditions relieving a national court of that obligation, which have been exhaustively listed by the Court of Justice [in its judgment of 6 October 1982, Cilfit and Others (283/81, EU:C:1982:335)] and which must be strictly interpreted, are absent, contrary to the principle that national rules and procedural practices, even those arising from legislation or the Constitution, are incompatible with EU law if they prevent a national court (of last instance or otherwise), even temporarily, from making a reference for a preliminary ruling, with the effect of usurping the Court of Justice’s exclusive jurisdiction to interpret EU law correctly and in binding fashion, of making any conflicts of interpretation between the law applied by national courts and EU law irremediable (and promoting the consolidation of such conflicts of interpretation), and of undermining the uniform application and effective judicial protection of the rights enjoyed by individuals under EU law?
3. Do the principles expressed by the Court of Justice in its judgments of 5 September 2019, Lombardi [(C‑333/18, EU:C:2019:675)], of 5 April 2016, PFE [(C‑689/13, EU:C:2016:199)], and of 4 July 2013, Fastweb [(C‑100/12, EU:C:2013:448)], in connection with Article 1(1) and (3) and Article 2(1) of Directive [89/665], as amended by Directive [2007/66], apply to the case in the main proceedings in which an undertaking has challenged its exclusion from a tendering procedure and the award of the contract to another undertaking and the Consiglio di Stato (Council of State) has examined the substance only of the ground of appeal whereby the excluded undertaking disputed the points awarded to its technical offer, which were below the “minimum threshold”, and has examined as a matter of priority the cross-appeals brought by the contracting authority and the successful tenderer, has upheld them and has declared inadmissible (and refrained from examining the substance of) the other grounds of the main appeal disputing the outcome of the tendering procedure for other reasons (imprecise tender assessment criteria in the tendering specifications, failure to justify the marks awarded, unlawful appointment and composition of the tender committee), in accordance with national judicial practice according to which an undertaking that has been excluded from a tendering procedure has no standing to bring a claim disputing the award of the contract to a competitor undertaking, even by way of the lapse of the tendering procedure, it being necessary to determine the compatibility with EU law of the effect of depriving the undertaking of the right to submit for the court’s examination each and every reason for which it disputes the outcome of the tendering procedure, in a situation where that undertaking’s exclusion has not been definitively established and where every competitor may argue a similar legitimate interest in the exclusion of its competitors’ tenders, which could make it impossible for the contracting authority to choose a regular tender and make it necessary to launch a new tendering procedure in which every tenderer might participate?’

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48) In so far as the referring court refers moreover, in its first question, to the right to an effective remedy set out in Article 47 of the Charter, it should be borne in mind that, under Article 51(1), the Charter is addressed to the Member States only when they are implementing EU law.

49) In that regard, it must be noted that, in the field of public procurement at issue in the main proceedings, Article 1(1) and (3) of Directive 89/665 lays down the Member States’ obligation to provide for effective reviews. It follows, as the Advocate General stated in point 67 of his Opinion, that, in that field, the right to an effective remedy and to a fair hearing, enshrined in the first and second paragraphs of Article 47 of the Charter, is relevant, in particular, when the Member States establish, in accordance with that obligation, detailed procedural rules governing the judicial remedies which safeguard the rights conferred by EU law on candidates and tenderers harmed by decisions of contracting authorities (see, to that effect, judgment of 7 September 2021, Klaipėdos regiono atliekų tvarkymo centras, C‑927/19, EU:C:2021:700, paragraph 128 and the case-law cited).

50) Accordingly, the first question must also be reformulated to encompass Article 1(1) and (3) of Directive 89/665, which must be read in the light of Article 47 of the Charter.

51) It follows from the foregoing considerations that the first question must be understood as seeking to establish whether Article 4(3) and Article 19(1) TEU, and Article 1(1) and (3) of Directive 89/665, read in the light of Article 47 of the Charter, must be interpreted as precluding a provision of a Member State’s domestic law which, according to national case-law, has the effect that individual parties, such as tenderers who participated in a procedure for the award of a public contract, cannot challenge the conformity with EU law of a judgment of the highest court in the administrative order of that Member State by means of an appeal before the highest court in that Member State’s judicial order.

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57) The principle of the effective legal protection of individual parties’ rights under EU law thus referred to in that provision is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and which is now reaffirmed by Article 47 of the Charter (see, to that effect, judgment of 15 July 2021, Commission v Poland (Disciplinary regime for judges), C‑791/19, EU:C:2021:596, paragraph 52 and the case-law cited).

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67) In the particular field of public procurement, Article 1 of Directive 89/665, read in the light of the first paragraph of Article 47 of the Charter, does not, moreover, militate against that conclusion.

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69) In so far as individual parties have access, in the relevant field, to an independent and impartial tribunal previously established by law, within the meaning of the second paragraph of Article 47 of the Charter, which appears to be the case – subject to verification by the referring court – in the Italian legal system, a national rule of law which prevents substantive assessments by the highest court in the administrative order from being open to further examination by the highest court in the judicial order cannot be regarded as a limitation, within the meaning of Article 52(1) of the Charter, of the right to a fair trial laid down in Article 47 of the Charter.

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73) In accordance with Article 2a(2) of Directive 89/665, the exclusion of a tenderer is definitive if it has been notified to that tenderer and has been ‘considered lawful’ by an ‘independent review body’ or can no longer be subject to a review procedure. That directive, which seeks to ensure full respect for the right to an effective remedy and to a fair hearing (see, to that effect, judgment of 15 September 2016, Star Storage and Others, C‑439/14 and C‑488/14, EU:C:2016:688, paragraph 45), must be interpreted in the light of the second paragraph of Article 47 of the Charter. In those circumstances, the term ‘independent review body’ within the meaning of Article 2a of that directive must, for the purposes of determining whether the exclusion of a tenderer has become definitive, be understood to mean an independent and impartial tribunal previously established by law, within the meaning of Article 47 of the Charter.

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77) It would thus appear that the variation of the judgment of the Tribunale amministrativo regionale della Valle d’Aosta (Regional Administrative Court, Valle d’Aosta) by the Consiglio di Stato (Council of State), declaring inadmissible that part of Randstad’s action by which the award of the contract to Synergie-Umana was challenged, is incompatible with the right to an effective remedy guaranteed by Article 1(1) and (3) of Directive 89/665, read in the light of Article 2a(2) of that directive. Consequently, the judgment of the Consiglio di State (Council of State) is also inconsistent with the first paragraph of Article 47 of the Charter.

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79) In that situation, the remedy against the infringement of Directive 89/665 and the first paragraph of Article 47 of the Charter resulting from the case-law of the highest administrative court lies in the obligation, for every administrative court of the Member State concerned, including the highest administrative court itself, to disregard that case-law which is not in conformity with EU law, and, if that obligation is not fulfilled, in the possibility of the European Commission instituting proceedings against that Member State for failure to fulfil its obligations.

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81) In the light of all of the foregoing considerations, the answer to the first question is that Article 4(3) and Article 19(1) TEU, and Article 1(1) and (3) of Directive 89/665, read in the light of Article 47 of the Charter, must be interpreted as not precluding a provision of a Member State’s domestic law which, according to national case-law, has the effect that individual parties, such as tenderers who participated in a procedure for the award of a public contract, cannot challenge the conformity with EU law of a judgment of the highest court in the administrative order of that Member State by means of an appeal before the highest court in that Member State’s judicial order.

82) By its second question, the referring court asks, in essence, whether Article 4(3) and Article 19(1) TEU and Article 267 TFEU, read in the light of Article 47 of the Charter, must be interpreted as precluding a provision of domestic law which, according to national case-law, has the effect that individual parties cannot, by means of an appeal in cassation to the highest court in the judicial order of that Member State against a judgment of the highest court in that Member State’s administrative order, challenge the failure, without reason, by the latter court adjudicating at last instance to submit a request for a preliminary ruling to the Court of Justice, despite there being some uncertainty as to the correct interpretation of EU law.