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Key facts of the case:

Public procurement — Directives 89/665/EEC and 92/13/EEC –National law requiring a ‘good conduct guarantee’ to access review procedures — Procedural autonomy of the Member States — Principles of equivalence and effectiveness — Articles 47 and 52 of the Charter — Right to an effective remedy — Limitation — Proportionality

Results (sanctions) and key consequences of the case:

  1. In the light of the foregoing considerations, I suggest that the Court should answer the questions referred by the Curtea de Apel Bucureşti (Court of Appeal, Bucharest, Romania) and the Curtea de Apel Oradea (Court of Appeal, Oradea, Romania) as follows:

    – Article 1(1) and (3) of 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 and Article 1(1) and (3) of 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, read in the light of Article 47 of the Charter, preclude national legislation such as that in issue in the main proceedings, which requires an applicant to lodge a ‘good conduct guarantee’ in order to obtain access to review of a contracting authority’s decisions relating to public procurement and under which the contracting authority must retain that guarantee if the challenge is rejected or withdrawn, regardless of whether or not the challenge is frivolous.

    – The same provisions of EU law also preclude national legislation which requires an applicant to lodge a ‘good conduct guarantee’ in order to obtain access to review of a contracting authority’s decisions and under which that applicant automatically gets back the guarantee at the end of the challenge, whatever its outcome.