Case C‑300/17

Hochtief AG

v

Budapest Főváros Önkormányzata

(Request for a preliminary ruling from the Kúria)

(Reference for a preliminary ruling — Public procurement — Review procedures — Directive 89/665/EC — Action for damages — Article 2(6) — National rules making the admissibility of any action for damages subject to a prior and definitive determination of the illegality of the decision of the contracting authority giving rise to the damage alleged — Actions for annulment — Prior action before an arbitration committee — Judicial review of arbitral decisions — National rules excluding pleas not raised before the arbitration committee — Charter of Fundamental Rights of the European Union — Article 47 — Right to effective judicial protection — Principles of effectiveness and equivalence)

Summary — Judgment of the Court (Third Chamber), 7 August 2018

1. Approximation of laws—Review procedures in respect of the award of public supply and public works contracts—Directive 89/665—Actions for damages—Member States permitted to lay down conditions for bringing the action for annulment of the contested decision—National rules making the possibility asserting a claim under civil law in the event of an infringement of the rules governing public procurement subject to the condition that the infringement be definitively established by an arbitration committee—Lawfulness

   (Charter of Fundamental Rights of the European Union, Art. 47; Council Directive 89/665, as amended by Directive 2014/23, Art. 2(6))

2. Approximation of laws—Review procedures in respect of the award of public supply and public works contracts—Directive 89/665—Actions for damages—National rules restricting judicial review of decisions issues by an arbitral committee in public procurement matters to an examination only of the pleas raised before that committee—Lawfulness

   (Charter of Fundamental Rights of the European Union, Art. 47; Council Directive 89/665, as amended by Directive 2014/23, Art. 1(1) and (3))

1.  Article 2(6) 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 2014/23/EU of the European Parliament and of the Council of 26 February 2014, must be interpreted as not precluding a national procedural rule, such as that at issue in the main proceedings, which makes the possibility of asserting a claim under civil law in the event of an infringement of the rules governing public procurement and the award of public contracts subject to the condition that the infringement be definitively established by an arbitration committee or, in the context of judicial review of an decision of that arbitration committee, by a court.

   Indeed, as the Court has held on many occasions, it is for the Member States, when defining the detailed procedural rules governing the remedies intended to protect rights conferred by EU law on candidates and tenderers harmed by decisions of contracting authorities, to ensure that neither the effectiveness of Directives 89/665 nor the rights conferred on individuals by EU law are undermined (see, to that effect, judgment of 15 September 2016, Star Storage and Others, C‑439/14 and C‑488/14, EU:C:2016:688, paragraphs 43 and 44). In that regard, the Court has held that the faculty granted to the Member States by Article 2(6) of Directive 89/665 was not without limits and remained subject to the condition that the action for annulment prior to any action for damages must be effective (see, to that effect, judgment of 26 November 2015, MedEval, C‑166/14, EU:C:2015:779, paragraphs 36 to 44). They must, in particular, ensure full compliance with the right to an effective remedy and to a fair hearing, in accordance with the first and second paragraphs of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) (see, to that effect, judgment of 15 September 2016, Star Storage and Others, C‑439/14 and C‑488/14, EU:C:2016:688, paragraph 46).

   (see paras 38, 39, 41, operative part 1)

2.  European Union law, and in particular Article 1(1) and (3) of Directive 89/665, as amended by Directive 2014/23, read in the light of Article 47 of the Charter, must be interpreted as meaning that, in the context of an action for damages, it does not preclude a national procedural rule, such as that at issue in the main proceedings, which restricts the judicial review of arbitral decisions issued by an arbitration committee responsible at first instance for the review of decisions taken by contracting authorities in public procurement procedures to an examination only of the pleas raised before that committee.

   It is appropriate to point out that, unlike the limitation rule at issue in the case which gave rise to the judgment of 26 November 2015, MedEval (C‑166/14, EU:C:2015:779), the procedural rule laid down in Article 339/A of the Code of civil procedure does not undermine, as the Advocate General noted in points 47 to 49 of his Opinion, the right to an effective remedy and of access to an impartial court, guaranteed by the first and second paragraphs of Article 47 of the Charter (see, by analogy, judgment of 26 September 2013, Texdata Software, C‑418/11, EU:C:2013:588, paragraph 87). Although, furthermore, it is true that that national procedural rule lays down a requirement that the pleas raised before the arbitration committee and those raised before the courts responsible for reviewing the decisions of that committee must be strictly the same, therefore making it impossible for a person involved to raise a new plea during that procedure, the fact remains that it contributes, as the Advocate General noted in point 49 of his Opinion, to maintaining the effectiveness of Directive 89/665, the objective of which is, as the Court has already held, to ensure that decisions taken unlawfully by contracting authorities may be reviewed effectively and as rapidly as possible (see, to that effect, judgment of 15 September 2016, Star Storage and Others, C‑439/14 and C‑488/14, EU:C:2016:688, paragraph 43 and the case-law cited).

   (see paras 50, 51, 58, operative part 2)