Article 41 - Right to good administration
Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
Request for a preliminary ruling from the Fővárosi Törvényszék.
Outcome of the case:
I propose that the Court answer the questions posed by the Fővárosi Törvényszék (Budapest High Court, Hungary) as follows:
29) The applicants challenged the Arbitration Panel’s decision before the referring court, the Fővárosi Törvényszék (Budapest High Court, Hungary). Harbouring doubts as to the correct interpretation of EU law, the referring court decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘1. Must Article 41(1) and Article 47 of the Charter of Fundamental Rights of the European Union, recitals 2, 25, 27 and 36 of [Directive 2007/66], Article 1(1) and (3) of [Directive 92/13], and, in this context, the principle of legal certainty, as a general principle of EU law, and the requirement for effective and rapid remedies against decisions by contracting authorities in public procurement cases, be interpreted as precluding legislation of a Member State which, in relation to public procurement contracts entered into before that legislation came into force, provides a general authorisation that enables the competent (monitoring) authority created by that legislation, after the periods established in the Member State’s previous legislation for bringing an action for review of public procurement infringements committed prior to the entry into force of the new legislation have expired but within the time period established in the new legislation, to commence proceedings to investigate a specific public procurement infringement and to rule on the substance, leading to a ruling that the infringement did take place, the imposition of a public procurement penalty, and the application of the consequences of the voiding of the contract?
2. Can the legal rules and principles referred to in question 1 — and also the effective exercise of the (subjective and personal) right of review enjoyed by parties with an interest in the award of a public contract — be applied to the right to commence and conduct review proceedings conferred on the (monitoring) authorities created by the law of the Member State, which have the power to identify and investigate public procurement infringements of their own motion, and which are under a duty to defend the public interest?
3. Does Article 99(1) and (2) of [Directive 2014/25] mean that in order to defend EU financial interests in the field of public procurement, the law of the Member State may, through the adoption of new legislation, confer on the (monitoring) authorities which have power under the law of the Member State to identify and investigate public procurement infringements of their own motion, and which are under a duty to defend the public interest, a general power to investigate public procurement infringements committed before the entry into force of the legislation in question and to commence and conduct proceedings, even where the time periods established under the previous legislation have expired?
4. If — having regard to the legal rules and principles referred to in question 1 — the (monitoring) authorities’ power of investigation described in questions 1 and 3 is held to be compatible with EU law, is any relevance to be ascribed to the legal, regulatory, technical or organisational deficiencies or other obstacles that prevented the public procurement infringement from being investigated at the time when the infringement took place?
5. Even if, in the light of the above principles, the (monitoring) authorities which are authorised by the law of the Member State to identify and investigate public procurement infringements of their own motion, and which are under a duty to defend the public interest may be granted the power referred to in questions 1 to 4, must Article 41(1) and Article 47 of the Charter of Fundamental Rights of the European Union, recitals 2, 25, 27 and 36 of [Directive 2007/66], Article 1(1) and (3) of [Directive 92/13] and, in this context, the principle of legal certainty, as a general principle of EU law, and the requirement for effective and rapid remedies against decisions by contracting authorities in public procurement cases, and the proportionality principle, be interpreted as meaning that the national courts may assess whether the period of time that has elapsed between the occurrence of the infringement, the expiry of the period previously established for bringing an action for review, and the commencement of the proceedings to investigate the infringement, is reasonable and proportionate, and may use this as a basis for determining the legal consequences of the nullity of the contested decision or other consequences established by the law of the Member State?’
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35) The contracting authority challenged the Arbitration Panel’s decision before the referring court, the Fővárosi Törvényszék (Budapest High Court). That court decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘
1. Must Article 41(1) and Article 47 of the Charter of Fundamental Rights of the European Union, recitals 2, 25, 27 and 36 of [Directive 2007/66], Article 1(1) and (3) of [Directive 89/665] and, in this context, the principle of legal certainty, as a general principle of EU law, and the requirement for effective and rapid remedies against decisions by contracting authorities in public procurement cases, be interpreted as precluding legislation by a Member State which, in relation to public procurement contracts entered into before that legislation came into force, provides a general authorisation that enables the competent (monitoring) authority created by that legislation, after the periods established in the Member State’s previous legislation for bringing an action for review of public procurement infringements committed prior to the entry into force of the new legislation have expired but within the time period established in the new legislation, to commence proceedings to investigate a specific public procurement infringement, leading to a ruling that the infringement did take place, the imposition of a public procurement penalty, and the application of the consequences of the voiding of the public contract?
3. Does Article 83(1) and (2) of [Directive 2014/24] mean that in order to defend EU financial interests in the field of public procurement, the law of the Member State may, through the adoption of new legislation, confer on the (monitoring) authorities which have power under the law of the Member State to identify and investigate public procurement infringements of their own motion, and which are under a duty to defend the public interest, a general power to investigate public procurement infringements committed before the entry into force of the legislation in question and to commence and conduct proceedings, even where the time periods established under the previous legislation have expired?
5. Even if, in the light of the above principles, the (monitoring) authorities which are authorised by the law of the Member State to identify and investigate public procurement infringements of their own motion, and which are under a duty to defend the public interest may be granted the power referred to in questions 1 to 4, must Article 41(1) and Article 47 of the Charter of Fundamental Rights of the European Union, recitals 2, 25, 27 and 36 of [Directive 2007/66], Article 1(1) and (3) of [Directive 89/665] and, in this context, the principle of legal certainty, as a general principle of EU law, and the requirement for effective and rapid remedies against decisions by contracting authorities in public procurement cases, and the proportionality principle, be interpreted as meaning that the national courts may assess whether the period of time that has elapsed between the occurrence of the infringement, the expiry of the period previously established for bringing an action for review, and the commencement of the proceedings to investigate the infringement, is reasonable and proportionate, and may use this as a basis for determining the legal consequences of the nullity of the contested decision or other consequences established by the law of the Member State?’
49) Before doing so, a note on the relevant rules of EU law is warranted. The referring court cites in its questions a number of provisions of the Charter of Fundamental Rights of the European Union (‘the Charter’) and of several public procurement directives, together with some general principles of EU law. However, only some appear to be fully relevant to the cases at hand. Conversely, other rules of EU law not referred to might in fact be relevant.
50) First, I do not think that Article 41 and Article 47 of the Charter are relevant to the present cases. Article 41, regarding the right to good administration, is addressed only to the institutions, bodies, offices and agencies of the European Union. ( 11 ) Likewise, Article 47 of the Charter is not applicable to the cases at hand. In mentioning that article, the referring court wonders whether the initiation of a review 7 or 8 years after the commission of the alleged infringements is compatible with the requirement to conduct legal proceedings within a reasonable time. However, on the facts of the cases at hand, the right to an effective remedy before a tribunal in the sense of Article 47 does not appear to be at issue. The real issue appears to be respect for limitation periods by an administrative authority.
