CJEU Joined Cases C-422/23, C-455/23, C-459/23, C-486/23 and C-493/23 / Judgment

T.B. and Others v T. S.A. and Others
Deciding body type
Court of Justice of the European Union
Type
Decision
Decision date
01/08/2025
ECLI (European case law identifier)
ECLI:EU:C:2025:592
  • CJEU Joined Cases C-422/23, C-455/23, C-459/23, C-486/23 and C-493/23 / Judgment

    Key facts of the case:

    Reference for a preliminary ruling – Rule of law – Effective judicial protection in fields covered by EU law – Second subparagraph of Article 19(1) TEU – Principles of the irremovability and independence of judges – Non-consensual designation of a judge of a supreme court to sit, for a specified period, in another chamber of that court – Primacy of EU law – Public procurement – Directive 2004/17/EC – Procurement procedures – Application to an agreement for the transfer of ownership rights relating to green electricity certificates of origin – Directive 92/13/EEC – Article 2d(1) – Review procedures in relation to the award of public contracts – No effect of the contract – Contracting entity seeking the annulment of a contract concluded in breach of the public procurement rules – Abuse of rights – None.

    Outcome of the case:

    On those grounds the Court (Second Chamber) hereby rules:

    1. The second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union,

      must be interpreted as meaning that it does not preclude measures taken by the president of a national court which consist in designating judges assigned to one chamber of that court to sit temporarily in another chamber of that court, while continuing to sit in their chamber of origin, even though those judges have not consented to that appointment, they have no judicial remedy to challenge it, that appointment entails an increase in the workload of the judges concerned and requires their involvement in matters outside their area of specialisation, and that president has been appointed to the same court under conditions which are incompatible with the requirements arising from the second subparagraph of Article 19(1) TEU, provided that such measures are based on legitimate reasons relating in particular to the proper administration of justice, they are taken on the basis of the national rules governing the court in question, they are temporary and strictly limited in time, they do not call into question the assignment of the judges concerned to their chamber of origin and they do not result in any demotion or removal of those judges from the cases for which they are responsible.

    2. Article 3(3)(b) of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, as amended by Commission Regulation (EC) No 1177/2009 of 30 November 2009, read in conjunction with Article 20(1) of Directive 2004/17, as amended,

      must be interpreted as meaning that the purchase, by a public electricity trading undertaking, of green certificates, within the meaning of points (k) and (l) of the second paragraph of Article 2 of Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009, on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC, constitutes an activity pursued for the purpose of supplying electricity to fixed networks intended to provide a service to the public in the field of electricity production, transport or distribution.

    3. Article 1(4) of Directive 2004/17, as amended by Regulation No 1177/2009, read in conjunction with Article 14 and Article 17(2) of Directive 2004/17, as amended,

      must be interpreted as meaning that:

    • in order to fall within the concept of a ‘framework agreement’ within the meaning of Article 1(4) of Directive 2004/17, as amended, a contract which obliges the parties to conclude performance contracts under certain price and quantity conditions must indicate the period during which it is applicable and determine the maximum volume of supplies which may be the subject of subsequent contracts by specifying their maximum quantity and/or value, it being specified that the mere indication of a price formula applicable for the purposes of calculating the value of the contracts to be concluded and of a non-quantified obligation to conclude performance contracts is not sufficient for that purpose;
    • where the estimated value of the contracts to be concluded during a given period under a framework agreement or in the context of contracts which are regular in nature or which are intended to be renewed, as calculated on the basis of Article 17(3) and (5) respectively of Directive 2004/17, as amended, exceeds the threshold laid down in Article 16(a) of Directive 2004/17, as amended, the contracting entity must either award each of the successive contracts in accordance with the procedures laid down in Directive 2004/17, as amended, or award, in accordance with the latter, a framework agreement, within the meaning of and in compliance with the conditions set out in Article 1(4) of Directive 2004/17, as amended.

       

    1. Article 2d(1)(a) of Council 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, as amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007,

      must be interpreted as meaning that the conclusion of a contract in disregard of the rules on the award of public contracts is subject to the penalty provided for in that provision.

    2. The principle of the prohibition of abuse of rights

      must be interpreted as meaning that it does not preclude a contracting entity from seeking the annulment of a contract which it has concluded with a supplier on the ground that that contract was concluded in breach of the rules on the award of public contracts, even though the real reason for that claim is a reduction in the profitability of the performance of that contract.

       

  • Paragraphs referring to EU Charter

    64. In that regard, in accordance with the second subparagraph of Article 19(1) TEU, it is for the Member States to establish a system of legal remedies and procedures ensuring for individuals compliance with their right to effective judicial protection in the fields covered by EU law. The principle of the effective judicial protection of individuals’ rights under EU law 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 ECHR and which is now affirmed in Article 47 of the Charter. The latter provision must therefore be duly taken into account for the purposes of interpreting the second subparagraph of Article 19(1) TEU (judgment of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C‑487/19, EU:C:2021:798, paragraph 102 and the case-law cited).

    65. As to the scope ratione materiae of the second subparagraph of Article 19(1) TEU, that provision refers to ‘the fields covered by Union law’, irrespective of the situation in which the Member States implement that law, within the meaning of Article 51(1) of the Charter (see, to that effect, judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 29, and of 16 November 2021, Prokuratura Rejonowa w Mińsku Mazowieckim and Others, C‑748/19 to C‑754/19, EU:C:2021:931, paragraph 62).

    ...

    68. In addition, the national court also refers to Article 47 of the Charter in some of its references for a preliminary ruling. In that regard, it should be recalled that, in accordance with Article 51(1) thereof, the provisions of the Charter are addressed to the Member States when they are implementing EU law. That provision confirms settled case-law, which states that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations (judgments of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 78 and the case-law cited, and of 11 July 2024, Hann-Invest and Others, C‑554/21, C‑622/21 and C‑727/21, EU:C:2024:594, paragraph 31).

    69. In the present cases, the referring court has not provided any indication that the dispute in the main proceedings in Cases C‑422/23, C‑455/23, C‑486/23 and C‑493/23 concern the interpretation or application of a rule of EU law implemented at national level. In those circumstances, in the light of the evidence before the Court, Article 47 of the Charter does not appear to be applicable in those cases. Nevertheless, although not applicable to the dispute in the main proceedings, Article 47 of the Charter must be duly taken into consideration for the purpose of interpreting the second subparagraph of Article 19(1) TEU (judgments of 20 April 2021, Repubblika, C‑896/19, EU:C:2021:311, paragraphs 44 and 45, and of 25 February 2025, Sąd Rejonowy w Białymstoku and Adoreikė, C‑146/23 and C‑374/23, EU:C:2025:109, paragraph 43).

    70. By contrast, it is apparent from the reference for a preliminary ruling in Case C‑459/23 that, in the main proceedings, company E. alleges infringement of the EU rules governing the award of public contracts, in particular Directive 2004/17. By its questions specific to that case, the referring court asks the Court, in particular, to interpret the scope of that directive. Accordingly, it must be held that the dispute in the main proceedings in that case concerns the application of a rule of EU law implemented at national level, it being specified that it will be for the referring court to determine, in the light of the Court’s answers to the questions in Case C‑459/23, whether Directive 2004/17 is in fact applicable to the main proceedings, in which case Article 47 of the Charter would also be applicable.

    71. In those circumstances, it is necessary to rule on the interpretation of the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter.

    72. By its first and second questions in Cases C‑422/23 and C‑493/23 and by its first and second questions in Cases C‑455/23, C‑459/23 and C‑486/23, the referring court seeks, in essence, to ascertain whether the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter, must be interpreted as precluding measures taken by the president of a national court which consist in designating judges assigned to one chamber of that court to sit temporarily in another chamber of that court, while continuing to sit in their chamber of origin, even though those judges have not consented to that appointment, they have no judicial remedy to challenge it, that appointment entails an increase in the workload of the judges concerned and requires their involvement in matters outside their area of specialisation, and that president has been appointed to the same court under conditions which are incompatible with the requirements arising from the second subparagraph of Article 19(1) TEU.

    ...

    80. The concept of a ‘tribunal previously established by law’, which also appears in the second paragraph of Article 47 of the Charter and reflects in particular the principle of the rule of law, concerns not only the legal basis for the very existence of the court or tribunal, but also the composition of the judicial panel in each case and any other provision of domestic law, non-compliance with which renders the participation of one or more judges in the consideration of the case irregular. That concept thus encompasses the rules governing the assignment and reassignment of cases (see, to that effect, judgment of 6 March 2025, D.K. (Withdrawal of cases from a judge), C‑647/21 and C‑648/21, EU:C:2025:143, paragraphs 73 and 74 and the case-law cited).

    ...

    93. The referring court points out, however, that Article 35(3) of the Law on the Supreme Court does not allow such an appointment to be made without the consent of the judge concerned, nor does it provide for the judge concerned to remain in his or her chamber of origin for that period. In that regard, it should be borne in mind that it is not for the Court to call into question the interpretation of national law made by the referring court. That being so, even supposing that the same provision did not authorise the appointments concerned, that circumstance alone would not be sufficient to call into question the compatibility of the judicial panels of the referring court with the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter.

    ...

    99. In addition, and in any event, it must be added that the regularity of the composition of the judicial panels making up the referring court under the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter, must, in accordance with the case-law of the Court, be capable of judicial review (see, by analogy, judgment of 14 November 2024, S. (Modification of the formation of the court), C‑197/23, EU:C:2024:956, paragraph 67). In this instance, the cases in the main proceedings illustrate precisely that national law allows the referring court to review the regularity of its own composition.

    100. Having regard to all the foregoing reasons, the answer to the two questions in Cases C‑422/23 and C‑493/23 and to the first and second questions in Cases C‑455/23, C‑459/23 and C‑486/23 is that the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter, must be interpreted as meaning that it does not preclude measures taken by the president of a national court which consist in designating judges assigned to one chamber of that court to sit temporarily in another chamber of that court, while continuing to sit in their chamber of origin, even though those judges have not consented to that appointment, they have no judicial remedy to challenge it, that appointment entails an increase in the workload of the judges concerned and requires their involvement in matters outside their area of specialisation, and that president has been appointed to the same court under conditions which are incompatible with the requirements arising from the second subparagraph of Article 19(1) TEU, provided that such measures are based on legitimate reasons relating in particular to the proper administration of justice, they are taken on the basis of the national rules governing the court in question, they are temporary and strictly limited in time, they do not call into question the assignment of the judges concerned to their chamber of origin and they do not result in any demotion or removal of those judges from the cases for which they are responsible.

  • Paragraphs referring to EU Charter (original language)