1

This request for a preliminary ruling concerns the interpretation of Article 55(4), Article 56(3), Article 57(2), Article 60(1)(b) and Article 61 of Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17/EC and 2004/18/EC (OJ 2009 L 216, p. 76).

2

The request has been made in proceedings between Armaprocure SRL, on the one hand, and Ministerul Apărării Naţionale (Ministry of National Defence, Romania) and BlueSpace Technology SRL, on the other, concerning the decision of that ministry to reject Armaprocure’s offer and to award a public contract for the acquisition of firing ranges to a consortium consisting of BlueSpace Technology and the national company Romarm SA (‘the Consortium’).

3

Recital 72 of Directive 2009/81 states:

‘Compliance with transparency and competition obligations should be ensured by an efficient review system, based on the system which [Council 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 (OJ 1989 L 395, p. 33), as amended by Directive 2007/66 EC of the European Parliament and of the Council of 11 December 2007 (OJ 2007 L 335, p. 31) (‘Directive 89/665’), and 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 (OJ 1992 L 76, p. 14), as amended by Directive 2007/66], provide for contracts covered by [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 (OJ 2004 L 134, p. 1), and Directive 2004/18/EC of the European Parliament and the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114)]. In particular, the possibility of challenging the award procedure before the contract is signed should be provided for, as should the guarantees necessary for the efficiency of the review, such as the standstill period. The possibility of challenging illegal direct awards or contracts concluded in violation of this Directive should also be provided for.’

4

Article 55 of Directive 2009/81, which is entitled ‘Scope and availability of review procedures’, provides as follows in paragraphs 2 and 4:

‘2.   Member States shall take the measures necessary to ensure that decisions taken by the contracting authorities/entities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in Articles 56 to 62, on the grounds that such decisions have infringed [EU] law in the field of procurement or national rules transposing that law.

…

4.   Member States shall ensure that the review procedures are available, under detailed rules which Member States may establish, at least to any person having or having had an interest in obtaining a particular contract who has been or risks being harmed by an alleged infringement.’

5

Article 56 of that directive, entitled ‘Requirements for review procedures’, provides in paragraph 3:

‘When a body of first instance, which is independent of the contracting authority/entity, reviews a contract award decision, Member States shall ensure that the contracting authority/entity cannot conclude the contract before the review body has made a decision on the application either for interim measures or for review. The suspension shall end no earlier than the expiry of the standstill period referred to in Article 57(2) and Article 60(4) and (5).’

6

Article 57 of that directive, entitled ‘Standstill period’, is worded as follows in the second subparagraph of paragraph 2:

‘Tenderers shall be deemed to be concerned if they have not yet been definitively excluded. An exclusion is definitive if it has been notified to the tenderers concerned and either has been considered lawful by an independent review body or can no longer be subject to a review procedure.’

7

Article 60 of Directive 2009/81, entitled ‘Ineffectiveness’, provides, in paragraph 1(b):

‘Member States shall ensure that a contract is considered ineffective by a review body independent of the contracting authority/entity or that its ineffectiveness is the result of a decision of such a review body in any of the following cases:

…

8

Under Article 61 of that directive, entitled ‘Infringements of this Title and alternative penalties’:

‘1.   In the case of an infringement of Article 55(6), Article 56(3) or Article 57(2) which is not covered by Article 60(1)(b), Member States shall provide for ineffectiveness in accordance with Article 60(1) to (3), or for alternative penalties. Member States may provide that the review body independent of the contracting authority/entity shall decide, after having assessed all relevant aspects, whether the contract should be considered ineffective or whether alternative penalties should be imposed.

…’

9

Article 1 of Directive 89/665, entitled ‘Scope and availability of review procedures’, provides as follows in paragraph 3:

‘Member States shall ensure that the review procedures are available, under detailed rules which the Member States may establish, at least to any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement.’

10

Article 2a of that directive, entitled ‘Standstill period’, is worded as follows in the second subparagraph of paragraph 2:

‘Tenderers shall be deemed to be concerned if they have not yet been definitively excluded. An exclusion is definitive if it has been notified to the tenderers concerned and has either been considered lawful by an independent review body or can no longer be subject to a review procedure.’

11

Article 137 of the Ordonanța de urgență a Guvernului nr. 114/2011 privind atribuirea anumitor contracte de achiziții publice în domeniile apărării și securității (Government Emergency Ordinance No 114/2011 on the award of certain public contracts in the defence and security sectors), of 21 December 2011 (Monitorul Oficial al României, part I, No 932 of 29 December 2011) (the ‘Emergency Ordinance No 114/2011’), provides in paragraphs 1 and 2:

‘1.   The contracting authority shall inform the economic operators involved in the award procedure of decisions concerning the result of the selection process, the outcome of the public contract award procedure or the conclusion of a framework agreement or, where appropriate, the cancellation of the award procedure and the possible subsequent initiation of a new procedure, in writing and as soon as possible, but no later than three working days after the decision in question has been issued.

2.   For the purposes of paragraph 1, any candidate/tenderer whom the contracting authority has not yet informed of decisions directly concerning his candidacy/tender and any candidate/tenderer whose candidacy/tender has not been finally rejected by the contracting authority shall be deemed to be an economic operator involved in the award procedure. A rejection shall be deemed final once it has been communicated to the economic operator concerned and either it has been held to be lawful by the Consiliul Național de Soluționare a Contestațiilor (National Council for the Resolution of Complaints[, Romania]) seised of the matter or it has not been and can no longer be the subject of an appeal.’

12

Article 138 of that emergency ordinance provides, in paragraph 2(c):

‘In the communication referred to in Article 137(3), the contracting authority shall inform tenderers/candidates who have been rejected or whose tender has been unsuccessful of the reasons for that decision, and shall communicate the following:

…

13

Legea nr. 101/2016 privind remediile și căile de atac în materie de atribuire a contractelor de achiziție publică, a contractelor sectoriale și a contractelor de concesiune de lucrări și concesiune de servicii, precum și pentru organizarea și funcționarea Consiliului Național de Soluționare a Contestațiilor (Law No 101/2016 on remedies and review procedures relating to the award of public procurement contracts, sector-specific contracts and works and services concession contracts and on the organisation and operation of the National Council for the Resolution of Complaints), of 19 May 2016 (Monitorul Oficial al României, part I, No 393 of 23 May 2016), in the version applicable to the main proceedings (‘Law No 101/2016’), provides in Article 3:

‘1.   The expression:

…

…’

3.   For the purposes of paragraph 1(f)(i), persons shall be deemed to have or to have had an interest in a procurement procedure if they have not yet been definitively excluded from that procedure. Exclusion shall be definitive if it has been communicated to the candidate/tenderer in question and if it has been found lawful by the National Council for the Resolution of Complaints or by a court or if it can no longer be the subject of a review procedure.’

14

Article 58 of Law No 101/2016 provides:

‘1.   Any interested person may apply to the court for a declaration of invalidity of a contract or addendum to a contract concluded in infringement of the conditions laid down in the legislation relating to public procurement, the legislation relating to sector-specific procurement and the legislation relating to works and services concessions, as appropriate, for the valid conclusion of such a contract or addendum or for the parties to be restored to their previous positions.

2.   The court shall establish the total/partial invalidity of the contract or its amendment and restore the parties to their previous situation, in accordance with Article 1254(3) of [Legea nr. 287/2009 privind Codul civil (Law No 287/2009 on the Romanian Civil Code)], republished, as amended, in the following cases:

…

…

6.   In the event of infringement of the provisions relating to the statutory waiting period for the conclusion of the contract, the court, after analysing all the relevant aspects, shall declare the total or partial invalidity of the contract or its amendment and restore the parties to their previous situation or, if this is sufficient, order alternative sanctions, such as those provided for in paragraph 3.’

15

On 12 December 2019, the Ministry of National Defence launched a public procurement procedure on the basis of Emergency Ordinance No 114/2011 transposing Directive 2009/81, which comprises two lots:

16

The total estimated value of the contract was 43905042 RON (approximately EUR 8900000); the award was based on the single criterion of ‘lowest price’.

17

By letter of 9 March 2020, the contracting authority informed Armaprocure, first, that its tenders for both lots had been rejected, having been found to be non-compliant for lot 1 and non-compliant and unacceptable for lot 2. Second, the contracting authority informed it of the award of the contract to the Consortium.

18

On 19 March 2020, Armaprocure brought the first action before the National Council for the Resolution of Complaints, challenging the legality of the decision to reject its tender, the decision to admit other tenders, and the decision to award the contract to the Consortium.

19

By decision of 10 April 2020, the National Council for the Resolution of Complaints partially upheld Armaprocure’s claim, in particular by ordering the contracting authority to re-evaluate Armaprocure’s tender for lot 1 as well as the Consortium’s tenders and those of other tenderers, namely Electro Optic Components SRL and Stimpex SA for both lots. The Council, however, rejected Armaprocure’s complaint regarding the decision to reject its tender for lot 2.

20

After the Curtea de Apel București (Court of Appeal, Bucharest, Romania), seised by the Ministry of National Defence and by Electro Optic Components and the Consortium, partially amended the decision of the National Council for the Resolution of Complaints by decision of 30 June 2020, the contracting authority proceeded to re-evaluate the tenders. By letter of 10 November 2020, it informed Armaprocure that its tender for lot 1 had been rejected as non-compliant while the Consortium’s tender for that lot had been successful. Armaprocure’s tender for lot 2 was finally rejected.

21

By document registered on 25 November 2020, Armaprocure referred to the National Council for the Resolution of Complaints a second time to challenge the result of the re-evaluation of the tenders.

22

By decision of 24 May 2021, the Council annulled the report on the procedure, drawn up by the contracting authority, only in so far as it concerns the financial evaluation of the tenders submitted by the Consortium and Electro Optic Components (‘the decision of 24 May 2021’).

23

On 14 June 2021, after further evaluation of these tenders, the contracting authority informed Electro Optic Components that its tender had been declared unacceptable. In accordance with the provisions of Article 137(2) and Article 138(2)(c) of Emergency Ordinance No 114/2011, the outcome of the re-evaluation was not communicated to Armaprocure, as the tender submitted by it had been previously rejected and this rejection had been considered lawful by the National Council for the Resolution of Complaints.

24

On 8 June 2021, Armaprocure lodged an administrative appeal against the decision of 24 May 2021. As that action was dismissed as unfounded by the Curtea de Apel București (Court of Appeal, Bucharest) by decision of 27 October 2021, Armaprocure brought an appeal on a point of law against that decision, which was dismissed by the Înalta Courte de Casație și Justiție (High Court of Cassation and Justice, Romania) on 25 May 2022.

25

At its request, Armaprocure was informed by the contracting authority, by letter of 11 November 2021, that the tenders of the Consortium and Electro Optic Components had been re-evaluated on 14 June 2021, pursuant to the decision of 24 May 2021.

26

At the end of November 2021, the contract for the supply of the ‘Type 2 firing range’ and ‘Type 3 firing range’ products was signed between the contracting authority and the Consortium. The notice of the award of the contract to the Consortium was published on the online platform ‘public procurement electronic system’ on 31 December 2021.

27

In its third complaint brought on 10 January 2022, Armaprocure asked the National Council for the Resolution of Complaints, inter alia, to annul all of the acts of the contracting authority adopted to implement the decision of 24 May 2021 in so far as concerned lot 1, to restore the parties to their previous position, to annul the procurement procedure and to suspend performance of the contract concerning that lot.

28

By decision of 28 January 2022, the National Council for the Resolution of Complaints dismissed Armaprocure’s complaints, which, therefore, brought the matter before the Tribunalul București (Regional Court, Bucharest, Romania).

29

By judgment of 29 March 2022, that court dismissed Armaprocure’s action, noting that its tender for lot 2 had been rejected by the decision of the National Council for the Resolution of Complaints of 10 April 2020, which had not been challenged before the Curtea de Apel București (Court of Appeal, Bucharest). The Tribunalul București (Regional Court, Bucharest) also pointed out that the decision of 24 May 2021 had rejected the claim submitted by Armaprocure seeking, first, annulment of the procedure and the decision declaring its tender for lot 1 non-compliant, and, second, re-evaluation of its tender by the contracting authority.

30

The Tribunalul București (Regional Court, Bucharest) also noted that the action brought by Armaprocure against the decision of 24 May 2021 had been dismissed by judgment of the Curtea de Apel București (Court of Appeal, Bucharest) of 27 October 2021. The Tribunalul București (Regional Court, Bucharest) therefore held that Armaprocure no longer had an interest in raising objections relating to the tender that had won the contract or to the acts of the procurement procedure for lot 1, because the non-conformity of the tender it had submitted had been established once and for all and become definitive.

31

Armaprocure appealed against the judgment of the Tribunalul București (Regional Court, Bucharest) of 29 March 2022 to the Curtea de Apel Bucureşti (Court of Appeal, Bucharest), which is the referring court. Armaprocure argued, inter alia, that the contracting authority had infringed Directive 2009/81 in that it had signed the contract for the supply of the products referred to in lots 1 and 2 with a tenderer that had submitted an unacceptable and non-compliant tender. Armaprocure also argued that it had brought an action before the Tribunalul București (Regional Court, Bucharest) for a declaration of invalidity of the public procurement contract resulting in that contract, based on Article 58(1) of Law No 101/2016. Consequently, it suffices for it to demonstrate that it is an ‘interested person’, within the meaning of that provision, to be able to challenge that contract, without having to establish that it is an ‘injured’ person, within the meaning of Article 3(1)(f) of that law. Therefore, it is not necessary for it to have the status of a tenderer or a candidate.

32

The referring court observes that Directive 2009/81 provides for a right to appeal only for the interested tenderer or candidate, where the interest of the tenderer or candidate in the procedure for the award of public procurement contracts arises from the participation of the interested party in such a procedure. However, in the present case, on the date the contract was signed by the successful tenderer, at the end of November 2021, Armaprocure had been definitively excluded from the procurement procedure resulting in that contract. By reasoning by analogy with the judgment of 21 December 2016, Bietergemeinschaft Technische Gebäudebetreuung und Caverion Österreich (C‑355/15, EU:C:2016:988), which related to Directive 89/665, that court asks whether Directive 2009/81 precludes a tenderer that has been excluded from a public procurement procedure by a decision of the contracting authority that has become final from having access to a means of appeal against, or review of the contract concluded with the successful tenderer.

33

In those circumstances the Curtea de Apel București (Court of Appeal, Bucharest) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Are [Article 55(4), Article 56(3), Article 57(2), Article 60(1)(b) and Article 61] of Directive [2009/81] to be interpreted as precluding a tenderer, that has been excluded from a public procurement procedure by a decision of the contracting authority that has become final, from having access to a means of appeal against, or review of the contract concluded with the successful tenderer?’

34

The referring court requested the Court of Justice to deal with the present reference for a preliminary ruling under the expedited procedure pursuant to Article 105(1) of the Rules of Procedure of the Court of Justice.

35

However, in view of the decision of the Court to rule by reasoned order in accordance with Article 99 of the Rules of Procedure, there is no need to adjudicate on that request (see, to that effect, order of 10 January 2023, Ambisig, C‑469/22, EU:C:2023:25, paragraph 19 and the case-law cited).

36

In accordance with Article 99 of the Rules of Procedure, where the reply to the question referred for a preliminary ruling may be clearly deduced from existing case-law or where the answer to the question admits of no reasonable doubt, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order.

37

It is appropriate to apply that provision in the context of the present reference for a preliminary ruling.

38

By its question, the referring court asks, in essence, whether Article 55(4) and Article 57(2) of Directive 2009/81 must be interpreted as precluding a tenderer, that has been excluded from a public procurement procedure by a decision of the contracting authority that has become final, from having access to a means of appeal against, or review of the contract concluded with, the successful tenderer.

39

As a preliminary point, it should be noted that it is apparent from the order for reference that, by its decisions of 10 April 2020 and 24 May 2021, in which it ruled on Armaprocure’s first two complaints, the National Council for the Resolution of Complaints rejected the challenge to the decision rejecting Armaprocure’s tender for lots 1 and 2, respectively, in view of the fact that, according to the explanations provided by the referring court, those decisions became final before the contract concluded with the successful tenderer was signed. After lodging a third complaint, Armaprocure brought an action before the referring court seeking annulment of the procurement procedure at issue and, accordingly, that it be awarded the contract.

40

At the outset, it should be noted that it follows from recital 72 of Directive 2009/81 that, by adopting this directive, the EU legislature intended to establish an efficient review system, inspired by the system provided for by Directive 89/665.

41

In that respect, it should be noted that, first, under Article 1(3) of Directive 89/665, whose wording is repeated in Article 55(4) of Directive 2009/81, the Member States shall ensure that the review procedures are available, under detailed rules which the Member States may establish, at least to any person having or having had an interest in obtaining a particular public supply or public works contract and who has been or risks being harmed by an alleged infringement. In so doing, those provisions do not oblige the Member States to make those review procedures available to any person wishing to obtain a public contract but allows them to require, in addition, that the person concerned has been or risks being harmed by the infringement it alleges (see, to that effect, judgment of 19 June 2003, Hackermüller, C‑249/01, EU:C:2003:359, paragraph 18, and order of 17 May 2022, Estaleiros Navais de Peniche, C‑787/21, not published, EU:C:2022:414, paragraph 22).

42

Called upon to interpret Article 1(3) of Directive 89/665, the Court has held that, in a procedure for the award of a public contract, tenderers whose exclusion is requested have a legitimate interest in the exclusion of the tenders submitted by other tenderers for the purpose of obtaining the contract, irrespective of the number of participants in the procedure for the award of the public contract concerned, the number of participants who have brought actions or the differing legal grounds which they have raised. The exclusion of one tenderer may lead to another tenderer directly being awarded the contract in the same procedure. Furthermore, if both tenderers are excluded and a new public procurement procedure is launched, each of those tenderers may participate in the new procedure and thus obtain the contract indirectly (see, to that effect, judgments of 4 July 2013, Fastweb, C‑100/12, EU:C:2013:448, paragraph 33; of 5 April 2016, PFE, C‑689/13, EU:C:2016:199, paragraphs 24, 27 and 29; of 24 March 2021, NAMA and Others, C‑771/19, EU:C:2021:232, paragraph 31; and order of 17 May 2022, Estaleiros Navais de Peniche, C‑787/21, not published, EU:C:2022:414, paragraph 23).

43

Second, the case-law principle recalled in the preceding paragraph applies only on condition that the exclusion of the tenderer has not become final, in particular after having been confirmed by a decision which has become definitive (see, to that effect, judgments of 21 December 2016, Bietergemeinschaft Technische Gebäudebetreuung und Caverion Österreich, C‑355/15, EU:C:2016:988, paragraph 36; of 11 May 2017, Archus and Gama, C‑131/16, EU:C:2017:358, paragraphs 57 and 58; of 24 March 2021, NAMA and Others, C‑771/19, EU:C:2021:232, paragraph 42; and order of 17 May 2022, Estaleiros Navais de Peniche, C‑787/21, not published, EU:C:2022:414, paragraph 24).

44

However, under the second subparagraph of Article 57(2) of Directive 2009/81, which is worded in the same way as Article 2a(2) of Directive 89/665, the exclusion of a tenderer is final if it has been notified to the tenderer and has been found to be lawful by an independent review body or can no longer subject to a review procedure. It follows that the fact that the exclusion decision is not yet definitive determines, for those tenderers, the standing to bring proceedings against the award decision (judgment of 21 December 2021, Randstad Italia, C‑497/20, EU:C:2021:1037, paragraph 74, and order of 17 May 2022, Estaleiros Navais de Peniche, C‑787/21, not published, EU:C:2022:414, paragraph 25).

45

The legal interest of an unsuccessful tenderer in a public procurement procedure in bringing proceedings against the decision awarding that contract is thus intrinsically linked to the continuing interest in bringing proceedings against the decision excluding it from that procedure. Therefore, in the absence of an interest in bringing proceedings against the decision excluding its tender, an unsuccessful tenderer cannot claim to continue having an interest in bringing proceedings against the decision awarding the contract. Such an interest in bringing proceedings cannot be inferred from the fact that that tenderer could potentially be awarded the contract in the case if, following the annulment of that decision, the contracting authority were to decide to launch a new award procedure (order of 17 May 2022, Estaleiros Navais de Peniche, C‑787/21, not published, EU:C:2022:414, paragraphs 26 and 27).

46

The interest of an unsuccessful tenderer in a procurement procedure in bringing proceedings against the decision awarding that contract is thus clearly lacking where the exclusion of that tenderer is the result of a decision that has become final, either because it is no longer open to challenge before the courts because it has not been challenged within the time limits laid down by the national procedural rules, or because the remedies available at national level have been exhausted.

47

Having regard to the foregoing considerations, the answer to the question referred is that Article 55(4) and Article 57(2) of Directive 2009/81 must be interpreted as precluding a tenderer, that has been excluded from a public procurement procedure by a decision of the contracting authority that has become final, from having access to a means of appeal against, or review of, the contract concluded with the successful tenderer.

48

Since these proceedings are, for the parties to the main proceedings, a step in the action before the referring court, the decision on costs is a matter for that court.

On those grounds, the Court (Eighth Chamber) hereby rules:

Article 55(4) and Article 57(2) of Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17/EC and 2004/18/EC,

must be interpreted as precluding a tenderer, that has been excluded from a public procurement procedure by a decision of the contracting authority that has become final, from having access to a means of appeal against, or review of, the contract concluded with the successful tenderer.