Article 16 - Freedom to conduct a business
Article 28 - Right of collective bargaining and action
Key facts of the case:
Request for a preliminary ruling from the Consiglio di Stato. Reference for a preliminary ruling – Article 267 TFEU – Scope of the obligation on national courts or tribunals of last instance to make a reference for a preliminary ruling – Exceptions to that obligation – Criteria – Question on the interpretation of EU law raised by the parties to the national proceedings after the Court has given a preliminary ruling in those proceedings – Failure to state the reasons justifying the need for an answer to the questions referred for a preliminary ruling – Partial inadmissibility of the request for a preliminary ruling.
Outcome of the case:
On those grounds, the Court (Grand Chamber) hereby rules:
Article 267 TFEU must be interpreted as meaning that a national court or tribunal against whose decisions there is no judicial remedy under national law must comply with its obligation to bring before the Court of Justice a question concerning the interpretation of EU law that has been raised before it, unless it finds that that question is irrelevant or that the provision of EU law in question has already been interpreted by the Court or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt.
The existence of such a possibility must be assessed in the light of the characteristic features of EU law, the particular difficulties to which the interpretation of the latter gives rise and the risk of divergences in judicial decisions within the European Union.
Such a court or tribunal cannot be relieved of that obligation merely because it has already made a reference to the Court for a preliminary ruling in the same national proceedings. However, it may refrain from referring to the Court a question for a preliminary ruling on grounds of inadmissibility specific to the procedure before that court or tribunal, subject to compliance with the principles of equivalence and effectiveness.
1) This request for a preliminary ruling concerns the interpretation of Articles 2 and 3 TEU, Article 4(2), Articles 9, 26, 34, Article 101(1)(e) and Articles 106, 151 to 153, 156 and 267 TFEU, Articles 16 and 28 of the Charter of Fundamental Rights of the European Union (‘the Charter’), of the European Social Charter signed at Turin on 18 October 1961 and revised at Strasbourg on 3 May 1996 (‘the European Social Charter’), and of the Community Charter of the Fundamental Social Rights of Workers adopted at the meeting of the European Council held in Strasbourg on 9 December 1989 (‘the Charter of Social Rights’).
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15) By decision of 24 November 2016, received at the Court of Justice on 24 March 2017, the referring court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
18) Furthermore, as regards the interpretation of Article 16 of the Charter, the Court held that the provisions of Legislative Decree No 163/2006 at issue in the main proceedings, in so far as they do not provide for periodic review of contract prices in the sectors covered by Directive 2004/17, cannot be regarded as implementing EU law within the meaning of Article 51(1) of the Charter.
20) Following the delivery of the judgment of 19 April 2018, Consorzio Italian Management and Catania Multiservizi (C‑152/17, EU:C:2018:264), the referring court held a public hearing on 14 November 2018. In their pleading of 28 October 2018, lodged with a view to that hearing, the applicants in the main proceedings asked that court to refer to the Court of Justice further questions for a preliminary ruling, seeking to determine whether Articles 2 and 3 TEU, Article 4(2), Articles 9, 26, 34, Article 101(1)(e), Articles 106, 151 to 153 and 156 TFEU, Articles 16 and 28 of the Charter, the European Social Charter and the Charter of Social Rights preclude the national legislation at issue in the main proceedings.
25) In those circumstances, the Consiglio di Stato (Council of State, Italy) decided once more to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
51) In that regard, it follows from the system established by Article 267 TFEU, read in the light of the second paragraph of Article 47 of the Charter, that, if a national court or tribunal against whose decisions there is no judicial remedy under national law takes the view, because the case before it involves one of the three situations mentioned in paragraph 33 above, that it is relieved of its obligation to make a reference to the Court under the third paragraph of Article 267 TFEU, the statement of reasons for its decision must show either that the question of EU law raised is irrelevant for the resolution of the dispute, or that the interpretation of the EU law provision concerned is based on the Court’s case-law or, in the absence of such case-law, that the interpretation of EU law was so obvious to the national court or tribunal of last instance as to leave no scope for any reasonable doubt.
67) By its second and third questions, which it is appropriate to examine together, the referring court asks, in essence, whether Articles 2 and 3 TEU, Article 4(2), Articles 9, 26, 34, Article 101(1)(e) as well as Articles 106, 151 to 153 and 156 TFEU, Articles 16 and 28 of the Charter, the European Social Charter and the Charter of Social Rights must be interpreted as precluding national legislation which does not provide for periodic price review after a contract has been awarded in the sectors covered by Directive 2004/17.
