Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
Request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas.
Reference for a preliminary ruling – Public procurement – Directive 2014/24/EU – Article 58(3) and (4) – Article 60(3) and (4) – Annex XII – Conduct of procurement procedures – Selection of participants – Selection criteria – Methods of proof – Economic and financial standing of economic operators – Whether the leader of a temporary association of undertakings may rely on income received in relation to a previous public contract in the same area as the public contract at issue including where it did not itself exercise the activity which is the subject matter of the public contract at issue – Technical and professional ability of economic operators – Exhaustive nature of means of proof permitted by the directive – Article 57(4)(h), (6) and (7) – Award of public service contracts – Non-compulsory grounds for exclusion from participation in a procurement procedure – Inclusion on a list of economic operators excluded from procurement procedures – Joint liability of members of a temporary association of undertakings – Personal nature of the penalty – Article 21 – Protection of the confidentiality of information submitted to the contracting authority by an economic operator – Directive (EU) 2016/943 – Article 9 – Confidentiality – Protection of trade secrets – Applicability to procurement procedures – Directive 89/665/EEC – Article 1 – Right to an effective remedy.
Outcome of the case:
On those grounds, the Court (Grand Chamber) hereby rules:
19) Directive 89/665, in its original version, had – prior to the amendments made by Directive 2014/23 – been amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 (OJ 2007 L 335, p. 31) in order to improve the effectiveness of review procedures in relation to the award of public contracts. Recital 36 of the latter directive stated that that directive respects fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union (‘the Charter’) and seeks, in particular, to ensure full respect for the right to an effective remedy and to a fair hearing, in accordance with the first and second paragraphs of Article 47 of the Charter.
120) It should also be pointed out that the contracting authority – whether where it refuses to disclose the confidential information of an economic operator to one of its competitors or where it receives an application for administrative review of its refusal to disclose such information in the context of a mandatory pre-litigation procedure – must also comply with the general principle of EU law relating to good administration, which entails requirements that must be met by the Member States when they implement EU law (judgment of 9 November 2017, LS Customs Services, C‑46/16, EU:C:2017:839, paragraph 39 and the case-law cited). Among those requirements, the obligation to state reasons for decisions adopted by the national authorities is particularly important, since it puts their addressee in a position to defend its rights and decide in full knowledge of the circumstances whether it is worthwhile to bring an action against those decisions. It is also necessary in order to enable the courts to review the legality of those decisions and it is therefore a requirement for ensuring that the judicial review guaranteed by Article 47 of the Charter is effective (see, to that effect, judgments of 15 October 1987, Heylens and Others, 222/86, EU:C:1987:442, paragraph 15; of 9 November 2017, LS Customs Services, C‑46/16, EU:C:2017:839, paragraph 40; and of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 103).
128) Accordingly, it is up to the Member States to adopt detailed procedural rules governing the judicial remedies intended to safeguard the rights conferred by EU law on candidates and tenderers harmed by decisions of contracting authorities in such a way as to ensure that neither the effectiveness of Directive 89/665 nor the rights conferred on individuals by EU law are undermined. In addition, as is clear from recital 36 thereof, Directive 2007/66, and therefore Directive 89/665 which it amended and supplemented, is intended to ensure full respect for the right to an effective remedy and to a fair hearing, enshrined in the first and second paragraphs of Article 47 of the Charter (see, to that effect, judgment 15 September 2016, Star Storage and Others, C‑439/14 and C‑488/14, EU:C:2016:688, paragraphs 42 to 46 and the case-law cited). Consequently, when they lay down the detailed procedural rules governing legal remedies, the Member States must ensure that that right is observed. Thus, despite the absence of rules of EU law on procedures for bringing actions before national courts, and in order to determine the rigour of judicial review of national decisions adopted pursuant to an act of EU law, it is necessary to take into account the purpose of the act and to ensure that its effectiveness is not undermined (judgment of 26 June 2019, Craeynest and Others, C‑723/17, EU:C:2019:533, paragraphs 46 and the case-law cited).
132) The fundamental rights capable of being protected in this way include the right to respect for private life and communications, enshrined in Article 7 of the Charter, and the right to the protection of trade secrets, which the Court has acknowledged as a general principle of EU law (see, to that effect, judgment of 14 February 2008, Varec, C‑450/06, EU:C:2008:91, paragraphs 48 and 49).
135) The competent national court must also review the adequacy of the statement of reasons for the decision by which the contracting authority refused to disclose the confidential information or for the decision dismissing the application for administrative review of the prior refusal decision, in order to ensure, in accordance with the case-law referred to in paragraph 120 above, first, that the applicant is able to defend its rights and decide in full knowledge of the circumstances whether it is worthwhile to seek judicial review of that decision and, secondly, that the courts are able to review the legality of that decision. Furthermore, in view of the harm to an economic operator which could result from the improper disclosure of certain information to a competitor, it is for the competent national court to reconcile the applicant’s right to an effective remedy, within the meaning of Article 47 of the Charter, with that operator’s right to the protection of confidential information.
137) In the light of the foregoing considerations, the answer to the fourth, eighth and ninth questions is that:
143) If the right to an effective remedy – as guaranteed, in relation to public procurement, by the fourth subparagraph of Article 1(1) and Article 1(3) of Directive 89/665 and by Article 47 of the Charter – is not to be disregarded, a decision by which a contracting authority refuses, even implicitly, to exclude an economic operator from a procurement procedure on one of the non-compulsory grounds for exclusion laid down in Article 57(4) of Directive 2014/24 must necessarily be capable of being challenged by any person having or having had an interest in obtaining a specific contract or having been or at risk of being harmed by a breach of that provision.