Case C‑328/17

Amt Azienda Trasporti e Mobilità SpA and Others

v

Atpl Liguria — Agenzia regionale per il trasporto pubblico locale SpA and Regione Liguria

(Request for a preliminary ruling from the Tribunale amministrativo regionale della Liguria)

(Reference for a preliminary ruling — Public procurement — Review procedures — Directive 89/665/EEC — Article 1(3) — Directive 92/13/EEC — Article 1(3) — Right to bring proceedings subject to the condition that a tender was submitted in a procurement procedure)

Summary — Judgment of the Court (Third Chamber), 28 November 2018

1. Approximation of laws — Review procedures in respect of the award of public supply and public works contracts and of public contracts in the water, energy, transport and telecommunications sectors — Directives 89/665 and 92/13 — Member States’ duty to provide for a review procedure — Access to review procedures — National procedural rules making locus standi subject to the condition of participation in the relevant procurement procedure — Lawfulness — Limits — Obligation to authorise the introduction of an action by a person who has not submitted a tender by reason of allegedly discriminatory specifications

   (Council Directives 89/665, as amended by Directive 2007/66, Art. 1(3) and 92/13, as amended by Directive 2007/66, Art. 1(3))

2. Approximation of laws — Review procedures in respect of the award of public supply and public works contracts and of public contracts in the water, energy, transport and telecommunications sectors — Directives 89/665 and 92/13 — Member States’ duty to provide for a review procedure — Access to review procedures — Non-participation by an economic operator in a procurement procedure on account of the unlikelihood of winning the tender due to the applicable national law — National law excluding the possibility of bringing an action — Lawfulness — Conditions

   (Council Directive 89/665, as amended by Directive 2007/66, Art. 1(3) and 92/13, as amended by Directive 2007/66, Art. 1(3))

1.  See the text of the decision.

   (see paras 44-47, 51, 52)

2.  Both 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, and Article 1(3) of 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, as amended by Directive 2007/66, must be interpreted as meaning that they do not preclude national legislation, such as that at issue in the main proceedings, which does not allow economic operators to bring an action against the decisions of a contracting authority relating to a tendering procedure in which they have decided not to participate on the ground that the legislation applicable to that procedure made the award to them of the contract concerned very unlikely.

   However, it is for the competent national court to make a detailed assessment, taking account of all the relevant information characterising the context of the case brought before it, as to whether the application of that legislation in practice is liable to affect the right of the economic operators concerned to the right to effective judicial protection.

   (see para. 58, operative part)