Case C-100/12

Fastweb SpA

v

Azienda Sanitaria Locale di Alessandria

(Request for a preliminary ruling from the Tribunale amministrativo regionale per il Piemonte)

‛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 EU law’

Summary — Judgment of the Court (Tenth Chamber), 4 July 2013

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Identification of the relevant aspects of EU law

2. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directives 89/665 and 2004/18 — Scope — Dispute not concerning a public procurement contact covered by one of the exemptions referred to in Article 1(1) of Directive 89/665 — Contract reaching the threshold at which Directive 2004/18 is applicable — Included — Procedure involving only national undertakings — No effect — No condition relating to the nationality or the place of establishment of the tenderers

   (European Parliament and Council Directive 2004/18; Council Directive 89/665, Art. 1(1))

3. Approximation of laws — Review procedures in respect of the award of public supply and public works contracts — Directive 89/665 — Member States’ duty to provide for a review procedure — Tenderer having submitted a bid not allowed to be taken into account — Access to review procedures refused due to having been harmed or a risk of being harmed — Unlawful

   (Council Directive 89/665, Art. 1(1) and (3))

4. Approximation of laws — Review procedures in respect of the award of public supply and public works contracts — Directive 89/665 — Action brought for review of the decision awarding a contract by the unsuccessful tenderer — Plea of inadmissibility raised in the context of a counterclaim by the successful tenderer which obtained the contract based on the lack of standing of tenderer seeking review — Alleged non-conformity of the selected bid with the technical requirements under the tender specifications — Possibility of declaring the review inadmissible following an examination of the plea of inadmissibility without taking a position on whether the bids of the two parties meet those technical requirements — Unlawful

   (Council Directive 89/665, Art. 1(3))

1.  See the text of the decision.

   (see para. 22)

2.  See the text of the decision.

   (see para. 23)

3.  See the text of the decision.

   (see paras 26-29)

4.  Article 1(3) of Directive 89/665 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, must be interpreted to the effect that, if, in review proceedings, the successful tenderer — having filed a counterclaim — raises a preliminary plea of inadmissibility on the grounds that the tenderer bringing that main 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 the main 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 and by the bid submitted by the tenderer which brought the main action for review.

   (see para. 34, operative part)

Case C-100/12

Fastweb SpA

v

Azienda Sanitaria Locale di Alessandria

(Request for a preliminary ruling from the Tribunale amministrativo regionale per il Piemonte)

‛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 EU law’

Summary — Judgment of the Court (Tenth Chamber), 4 July 2013

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Identification of the relevant aspects of EU law

2. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directives 89/665 and 2004/18 — Scope — Dispute not concerning a public procurement contact covered by one of the exemptions referred to in Article 1(1) of Directive 89/665 — Contract reaching the threshold at which Directive 2004/18 is applicable — Included — Procedure involving only national undertakings — No effect — No condition relating to the nationality or the place of establishment of the tenderers

   (European Parliament and Council Directive 2004/18; Council Directive 89/665, Art. 1(1))

3. Approximation of laws — Review procedures in respect of the award of public supply and public works contracts — Directive 89/665 — Member States’ duty to provide for a review procedure — Tenderer having submitted a bid not allowed to be taken into account — Access to review procedures refused due to having been harmed or a risk of being harmed — Unlawful

   (Council Directive 89/665, Art. 1(1) and (3))

4. Approximation of laws — Review procedures in respect of the award of public supply and public works contracts — Directive 89/665 — Action brought for review of the decision awarding a contract by the unsuccessful tenderer — Plea of inadmissibility raised in the context of a counterclaim by the successful tenderer which obtained the contract based on the lack of standing of tenderer seeking review — Alleged non-conformity of the selected bid with the technical requirements under the tender specifications — Possibility of declaring the review inadmissible following an examination of the plea of inadmissibility without taking a position on whether the bids of the two parties meet those technical requirements — Unlawful

   (Council Directive 89/665, Art. 1(3))

1.  See the text of the decision.

   (see para. 22)

2.  See the text of the decision.

   (see para. 23)

3.  See the text of the decision.

   (see paras 26-29)

4.  Article 1(3) of Directive 89/665 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, must be interpreted to the effect that, if, in review proceedings, the successful tenderer — having filed a counterclaim — raises a preliminary plea of inadmissibility on the grounds that the tenderer bringing that main 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 the main 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 and by the bid submitted by the tenderer which brought the main action for review.

   (see para. 34, operative part)