Judgment of the Court (Tenth Chamber) of 4 July 2013 (request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Piemonte — Italy) — Fastweb SpA v Azienda Sanitaria Locale di Alessandria

(Case C-100/12) (1)

(Public procurement - Directive 89/665/EEC - Public procurement review - Action brought by an unsuccessful tenderer for review of a decision awarding a contract - Action for review based on the ground that the bid selected did not meet the technical specifications for the contract - Counterclaim made by the successful tenderer alleging that certain technical specifications for the contract were not respected in the bid submitted by the tenderer seeking review - Neither of those bids in compliance with the technical specifications for the contract - National case-law requiring that the counterclaim be examined first and, where such a counterclaim proves well founded, that the main action be declared inadmissible without any consideration of its merits - Whether compatible with European Union law)

2013/C 245/05

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Piemonte

Parties to the main proceedings

Applicant: Fastweb SpA

Defendant: Azienda Sanitaria Locale di Alessandria

Intervening parties: Telecom Italia SpA, Path-Net SpA

Re:

Request for a preliminary ruling — Tribunale Amministrativo Regionale per il Piemonte — Interpretation of 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 (OJ 2007 L 335, p. 31) — Principles of equal treatment, non-discrimination and protection of competition — Rule laid down in the national case-law under which the national court before which an action is brought for annulment of the act awarding a public procurement contract, as well as a counterclaim seeking to challenge the legitimacy of the participation in the tendering procedure of the unsuccessful tenderer (which is also the applicant in the main action), may rule on the merits of the main action only if the counterclaim proves to be unfounded — A restricted call for tenders, with only two tenderers, neither of which submitted a bid which was admissible

Operative part of the judgment

Article 1(3) of 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, as amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007, must be interpreted to the effect that, if, in review proceedings, the successful tenderer — having won the contract and filed a counterclaim — raises a preliminary plea of inadmissibility on the grounds that the tenderer seeking review lacks standing to challenge the award because its bid should have been rejected by the contracting authority by reason of its non-conformity with the technical requirements under the tender specifications, that provision precludes that action for review from being declared inadmissible as a consequence of the examination of that preliminary plea in the absence of a finding as to whether those technical requirements are met both by the bid submitted by the successful tenderer, which won the contract, and by the bid submitted by the tenderer which brought the main action for review.

(1)  OJ C 151, 26.5.2012.