CJEU - Joined Cases C-439/14 and C-488/14 / Opinion SC Star Storage v. Institutul National de Cercetare-Dezvoltare in Informatica (ICI)

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public procurement and under which the contracting authority must retain that guarantee if the challenge is rejected or withdrawn, regardless of whether or not the challenge is frivolous.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.

Paragraphs referring to EU Charter: 
  1. Procedural rules such as those at issue in the main proceedings clearly come within the scope of Article 1 of Directive 89/665 and Article 1 of Directive 92/13. Moreover, the fundamental right to an effective remedy to which those provisions give specific expression covers such rules. (31) Consequently, Article 47 of the Charter applies in the main proceedings. (32) Providing the good conduct guarantee is a pre-condition for getting any challenge examined. (33) That requirement therefore constitutes a limitation on the right to an effective remedy before a tribunal within the meaning of Article 47. (34) Such a limitation can therefore be justified only if it is provided for by law, if it respects the essence of that right and, subject to the principle of proportionality, if it is necessary and genuinely meets objectives of general interest recognised by the EU or the need to protect the rights and freedoms of others. (35) That test is similar to the test that the Strasbourg Court applies when it examines whether financial restrictions on access to courts are compatible with Article 6(1) of the ECHR. (36)
  1. What of the principle of effectiveness and the proportionality test set out in Article 52(1) of the Charter?
  2. It is not in dispute that the limitation resulting from Articles 271a and 271b of the OUG No 34/2006 is provided by law.
  3. The second condition of the proportionality test is that the measure has to pursue a legitimate objective (that is, an objective of general interest recognised by the EU or the need to protect the rights and freedoms of others). It is common ground that the good conduct guarantee is a source of income for the contracting authority where the latter retains it. That guarantee does not therefore serve to finance the judicial system. (40) Rather, the national provisions establishing the good conduct guarantee are intended in essence to protect contracting authorities, the CNSC and courts from frivolous challenges which economic operators (including those who are not tenderers) might initiate for purposes other than those for which the review procedures were established. (41) Such an objective is undeniably legitimate. (42) In particular, discouraging frivolous challenges enables the bodies in charge of reviewing decisions of contracting authorities to concentrate on ‘genuine’ challenges. That is likely to contribute to satisfying the requirement that Member States must ensure that decisions of contracting authorities may be reviewed effectively and, in particular, as rapidly as possible where it is claimed that such decisions infringe EU public procurement law or national rules transposing that law. (43)
  1. I therefore agree with Star Storage, Max Boegl and the Commission that the original regime involves a disproportionate limitation on the right to an effective remedy protected under Article 47 of the Charter and therefore undermines the effectiveness of Article 1(1) and (3) of Directive 89/665 and Article 1(1) and (3) of Directive 92/13. That regime also affects the essence of that right because it is liable in practice to deprive economic operators having or having had an interest in obtaining a particular contract from accessing a remedy against allegedly illegal decisions of contracting authorities.
  2. For those reasons, I conclude that Article 1(1) and (3) of Directive 89/665 and Article 1(1) and (3) of Directive 92/13, 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.
  1. I therefore conclude that Article 1(1) and (3) of Directive 89/665 and Article 1(1) and (3) of Directive 92/13, read in the light of Article 47 of the Charter, preclude national legislation such as the transitional regime, 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.