OPINION OF ADVOCATE GENERAL

JÄÄSKINEN

delivered on 7 May 2015 (1)

Case C‑61/14

Orizzonte Salute – Studio Infermieristico Associato

v

Azienda Pubblica di Servizi alla persona ‘San Valentino’ – Città di Levico Terme

Ministero della Giustizia

Ministero dell'Economia e delle Finanze

Presidenza del Consiglio dei Ministri

Segretario Generale del Tribunale Regionale di Giustizia Amministrativa di Trento (TRGA)

(Request for a preliminary ruling from the Tribunale Regionale di Giustizia Amministrativa di Trento (Italy))

(Public procurement – Directive 89/665/EEC – Legislation providing for elevated fees for access to justice in the field of public procurement – Cumulative court fees chargeable upon presentation of new applications on additional grounds within the context of judicial challenge pertaining to a single contract award procedure – Right to an effective remedy under Article 47 of the EU Charter of Fundamental Rights – Dissuasive fees – Access to a court – Principles of effectiveness and equivalence)

I –  Introduction

1.        The 19th century judge Sir James Matthew is reputed to have said that ‘in England, justice is open to all, like the Ritz hotel’. The case to hand provides an opportunity for the Court to consider whether the same applies to judicial proceedings relating to award of public contracts in Italy that are governed by EU public procurement law.

2.        Italian law provides that court fees applicable in judicial review proceedings relating to public procurement are considerably higher than those generally applicable in administrative proceedings. Moreover, these fees are cumulatively chargeable for every new procedural step that constitutes, under Italian law, a new plea or application on additional grounds.

3.        This raises the question of whether the relevant Italian rules are compatible with the objectives of Council Directive 89/665/EEC 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. (2) The directive is to be interpreted in the light of principles of effectiveness and equivalence, and Article 47 of the Charter of Fundamental Rights of the European Union (‘Charter’) and its guarantee of access to justice.

II –  Legal framework

A –    EU law

4.        The third recital of Directive 89/665 states as follows;

‘… the opening-up of public procurement to Community competition necessitates a substantial increase in the guarantees of transparency and non-discrimination; … for it to have tangible effects, effective and rapid remedies must be available in the case of infringements of Community law in the field of public procurement or national rules implementing that law’.

5.        Article 1 of Directive 89/665, entitled ‘[s]cope and availability of review procedures’, as amended, states:

‘1.      This Directive applies to contracts referred to in Directive 2004/18/EC of the European Parliament and of 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, [(3)] unless such contracts are excluded in accordance with Articles 10 to 18 of that Directive.

Contracts within the meaning of this Directive include public contracts, framework agreements, public works concessions and dynamic purchasing systems.

Member States shall take the measures necessary to ensure that, as regards contracts falling within the scope of Directive 2004/18/EC, decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in Articles 2 to 2f of this Directive, on the grounds that such decisions have infringed Community law in the field of public procurement or national rules transposing that law.

2.      Member States shall ensure that there is no discrimination between undertakings claiming harm in the context of a procedure for the award of a contract as a result of the distinction made by this Directive between national rules implementing Community law and other national rules.

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.’

6.        Article 2 of Directive 89/665, entitled ‘[r]equirements for review procedures’, states:

‘1.      Member States shall ensure that the measures taken concerning the review procedures specified in Article 1 include provision for powers to:

(a)      take, at the earliest opportunity and by way of interlocutory procedures, interim measures with the aim of correcting the alleged infringement or preventing further damage to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a public contract or the implementation of any decision taken by the contracting authority;

(b)      either set aside or ensure the setting-aside of decisions taken unlawfully, including the removal of discriminatory technical, economic or financial specifications in the invitation to tender, the contract documents or in any other document relating to the contract award procedure;

(c)      award damages to persons harmed by an infringement.’

B –    National law

7.        Article 13(1) of Decree of the President of the Republic No 115/2002, as most recently amended by Law No 228 of 24 December 2012, (4) introduced a court fee regime made up of a standard fee. According to subparagraph 6a of Article 13, in the context of administrative proceedings, the amount of standard fee is linked to the subject-matter of the administrative proceedings. In respect of actions before the administrative courts, the normal standard fee amounts to EUR 650. Different amounts are set for particular subject-matters. (5) As regards the subject-matter of public contracts, the standard fee ranges as of 1 January 2013 from EUR 2 000 to EUR 6 000, depending on the value of the contract. (6) According to Article 13(6a) 1 the standard fee is payable, for the lodging not only of the application instituting proceedings, but also of a procedural plea or application on additional grounds which introduce new claims.

8.        With regard to determination of the amount involved in cases relating to public procurement, under Article 14(3b) of Decree of the President of the Republic No 115/2002, it is to be equal to the basic value of the contract identified by the contracting authorities in the tender documents.

III –  Facts in the main proceedings, the question referred and the proceedings before the Court

9.        The applicant, Orizzonte Salute — Studio Infermieristico Associato (‘Orizzonte Salute’) is an association providing public and private bodies with nursing services. It instituted proceedings before the Tribunale Regionale di Giustizia Amministrativa di Trento by an application (‘original application’), supplemented by three subsequent applications on additional grounds, contesting certain measures adopted in the period from 21 December 2012 to 23 May 2013 by the defendant, the Azienda Pubblica di Servizi alla Persona ‘San Valentino’ — Città di Levico Terme (‘APSP’).

10.      The contested measures concerned the extension of a contract for the provision of nursing services for the benefit of another association, and the call for tenders subsequently published by the APSP inviting applications from only certain associations accredited by the IPASVI (Infermieri Professionali Assistenti Sanitari Vigilatrici d’Infanzia) (Professional Association of Nurses Specialising in the Care of Infants), of which Orizzonte Salute was not a member.

11.      Orizzonte Salute initially paid a standard court fee of EUR 650 for instituting ordinary administrative proceedings. However, on 5 June 2013 the national referring court asked Orizzonte Salute to make a supplementary payment to meet a standard fee of EUR 2 000, given that its original application fell within the domain of public procurement.

12.      By a new application, being the fourth supplementary application on new grounds, introduced on 2 July 2013, Orizzonte Salute challenged this decision. The national referring court decided, for reasons of procedural economy, to rule on this challenge first.

13.      The national referring court doubts the compatibility of the Member State court fee scheme with several rules and principles of EU law. It therefore sent the following question for a preliminary ruling.

‘Do the principles laid down in 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 Council Directive 92/50/EEC of 18 June 1992, as subsequently amended and added to, preclude a provision of national law, such as that set out in Article 13(1a), (1c) and (6a) and in Article 14(3b) of Decree of the President of the Republic No 115 of 30 May 2002 (as progressively amended by subsequent legislative interventions) which laid down high amounts of the standard fee for access to administrative proceedings relating to public contracts?’

14.      Written observations were submitted by Orizzonte Salute, Camera Amministrativa Romana, Associazione dei Consumatori Cittadini europei, Coordinamento delle associazioni per la tutela dell'ambiente e dei diritti degli utenti e consumatori (Codacons), Associazione dei Giovani Amministrativisti (AGAmm), Ordine degli Avvocati di Roma, Società Italiana degli Avvocati Amministrativisti (SIAA), (7) along with the Italian, Greek, Austrian and Polish Governments, and the Commission. Of the Member States that deposited written observations only Italy participated at the hearing that was held on 11 February 2015. All of the other above mentioned parties participated at the same hearing, including the Commission, along with Medical Systems SpA, which made oral submissions only.

IV –  Admissibility

15.      At the outset, I note that both the national referring Court and Orizzonte Salute have drawn the Court’s attention to the charges that are levied under Italian law with respect to public procurement proceedings that go beyond the facts arising in this case, such as, for example, increased standard fees in the case of appeals. The Austrian Government considers the preliminary question to be admissible only in so far as it addresses the fourth application made by Orizzonte Salute directed at the levying of a standard fee of EUR 2 000. Otherwise the Austrian Government takes the view that the question is hypothetical.

16.      Further, I note that the question referred by the national court is of a broad and general nature. As pointed out in the written observations of the Commission, the referring court does not explain why an answer to it is necessary for the resolution of the dispute.

17.      It is not the function of the Court to formulate consultative opinions on questions that are of a general or hypothetical nature. (8) The reference must be necessary for the effective resolution of a dispute. (9) The proceedings to hand are not in the nature of a direct action brought by the Commission against Italy questioning, in abstracto, whether the legal regime in place for the levying of court fees in public procurement cases comply with EU law but preliminary rulings proceedings inextricably linked to the legal issues pertinent to the main proceedings.

18.      That said, at this stage the main proceedings are primarily concerned with a narrow issue, namely the fourth additional application by Orizzonte Salute introducing a new ground contesting the legality of the level of the court fee levied for the original application. In relation to this legal question, which the national referring court has decided to examine first, the preliminary question is not hypothetical. Moreover, given that the challenged measure is the fifth court fee levied in the main proceedings, in my opinion the issue of cumulative fees also needs an answer from the Court. If the Court found the Italian system to be incompatible with EU law, the national Court would need to draw appropriate conclusions from that finding with regard to the court fee levied for the original application. Thus, within these parameters, the reference for a preliminary ruling is admissible.

V –  Analysis

A –    Preliminary observation — the approach to solving the problem to hand

19.      Article 2(1) of Directive 89/665, as amended, requires the Member States to provide judicial powers for the effective protection of the interested enterprises in the context of public procurement. First, interim measures have to be available to enable early challenge to alleged infringements, and prevention of further damages (point a). Secondly, there is an obligation for the Member States to provide powers for the setting-aside of any unlawful decision relating to the contract award procedure (point b). Thirdly, reparative justice in the form of the award of damages to persons harmed by an infringement must be provided (point c). In factual terms, the main proceedings belong to the second of these categories, given that Orizzonte Salute is challenging the extension of an existing contract for the provision of nursing services for the benefit of another association, and the subsequent call for tenders inviting applications from only certain associations accredited by an organisation, of which Orizzonte Salute was not a member.

20.      I recall that Directive 89/665 aims at guaranteeing the existence, in all Member States, of effective remedies for infringement of EU law in the field of public procurement or of the national rules implementing these laws, so as to ensure the effective application of the directives on the coordination of public procurement procedures. (10) Member States are required to take measures to ensure that decisions taken by contracting authorities may be reviewed effectively and, in particular, as rapidly as possible. (11) Finally, Member State procedural rules governing the remedies intended to protect rights conferred by EU law on candidates and tenderers harmed by decisions of contracting authorities must not compromise the effectiveness of Directive 89/665. (12)

21.      EU legal acts in the field of public procurement strive to foster access to public sector markets under the conditions of non-discrimination and transparency. Directive 89/665 ensures that private judicial enforcement of these EU law rules is both available and effective. The EU legislature has thus conceived effective judicial protection of the interested economic operators as a means of promoting the effet utile of the EU public procurement regime and in consequence, the objectives of the internal market.

22.      Therefore, in my opinion, answering the preliminary question boils down to an examination of the scope of the right to effective judicial protection as guaranteed by Directive 89/665 and Article 47 of the Charter. In the light of submissions put forward in the main proceedings, it is also necessary to consider the pertinence of the limitations placed on Member State procedural autonomy by the principles of effectiveness and equivalence to the question of the compatibility of the Italian court fees in issue with EU law.

23.      The Court’s case-law on Directive 89/665 provides no clear answer on whether the court fees in issue are compatible with remedial provisions of EU public procurement law. (13) Nevertheless, there is no question that the charging of court fees in national proceedings that fall within the scope of Directive 89/665 amounts to an implementation of EU law within the meaning of Article 51 of the Charter. (14)

24.      That being so, I will now consider the court fees for their compliance with the fundamental right to an effective remedy under Article 47 of the Charter, and the Court’s remedial case-law on the principles of effectiveness and equivalence. As I have said on another occasion, both these principles should be considered beneath the umbrella of Article 47 of the Charter. (15) I will commence with the principle of equivalence before moving on to the pertinent elements of the Court’s case-law on ‘effectiveness’.

B –    The principle of equivalence

25.      Compliance with the principle of equivalence requires that the national rule in question must apply, without distinction, to actions based on infringement of EU law and those based on infringement of national law having a similar purpose and cause of action. (16)

26.      There is little scope for the operation of this principle in the context of public procurement because there are no truly comparable national and EU law situations. Directive 2004/18 applies to all public procurement when the threshold is met, with the exception of exempted contracts. Thus, the applicability of national rules is reserved to contract awards below the thresholds and situations exempted from the scope of the directive. This, to my mind, reflects an assessment of the EU legislature to the effect that these situations are not comparable with those falling within the scope of Directive 2004/18.

27.      In any event, the court fees in issue appear to apply to public procurement litigation falling both inside and outside the scope of Directive 2004/18. There would therefore not appear to be any incidence of discrimination between situations under EU law and national law. (17)

28.      Moreover, given that public procurement law represents a complex mix of legal relationships between the contracting authority and various public and private actors, I do not accept that court proceedings entailing challenge to decisions made in the course of awarding a public contract could be viewed as being analogous to ordinary public law proceedings before administrative courts, as has been contended by Orizzonte Salute and several others. (18)

29.      The Commission claims in its written observations that there might be a problem of equivalence with respect to the point in the scale applicable under Italian law where the court fee increases from EUR 2 000 to EUR 4 000. This occurs when the value of the contract is more than EUR 200 000. According to the Commission this threshold would correspond “in substance” with the threshold in Article 7 of Directive 2004/18 which, subject to control by the national referring court, would entail that proceedings with respect to actions concerning violation of that directive or national rules implementing it would be subject to different and less favourable procedural modalities than purely national proceedings.

30.      I disagree with this submission. It is true that the threshold of EUR 200 000, as set out in Article 2 of Regulation No 1251/2011 coincided with the national threshold for a higher court fee. However, the applicability of the court fee of EUR 4 000 or higher is not restricted to cases falling within the scope of Directive 2004/18 but there will obviously be many national cases (exempted contracts) where this higher court fee applies. More generally, the solution adopted by the Italian legislature to step-up the scale applicable in the determination of the court fees in question at two points is a reasonable means of alleviating the regressive effect of the scale.

31.      Furthermore, to my mind EU law would have no objection, in the context of the principle of equivalence, to the fact that Italian law supplies different court fees or bases for court fees in different forms of judicial proceedings. The principle of equivalence requires equal treatment between comparable claims based on national law, on the one hand, and on EU law, on the other, not equivalence between different forms of procedure under national law. (19)

32.      For these reasons no objections can be raised against the national rules in issue from the point of view of their compatibility with the principle of equivalence.

C –    The charges in issue in the light of the principle of effectiveness and the right of access to a court

1.      Identifying the relevant test

33.      I start by noting that the legal rules applicable to the fundamental right to an effective judicial remedy in the sense of Article 47 of the Charter, or the right to ‘judicial control’, which have their origins in Articles 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), (20) are different from those that arise when the question to be determined is whether a Member State sanction or procedural rule is inconsistent with the principle of effectiveness, in the sense that the rule in question renders rights provided by EU law impossible in practice or excessively difficult to enforce. The latter, rather than being created within EU fundamental rights law, came into being as a function of the limitations placed by EU law on the procedural autonomy of the Member States.

34.      However, in the case to hand these two approaches largely converge because the very purpose of Directive 89/665 is to guarantee access to justice for undertakings if substantive or procedural EU law rules on public procurement are violated. In other words, the effet utile of this legislative act coincides to a great extent with strict observance of the requirements stemming from Article 47 of the Charter in this field.

35.      The principle of effectiveness, in the sense of the San Giorgio prohibition on Member State procedural rules rendering EU rights impossible in practice or excessively difficult to enforce, (21) entails no formal proportionality test. However, in determining whether the Member State procedural rule or remedy in question meets its parameters, the provision ‘must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances. In the light of that analysis the basic principles of the domestic judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of procedure, must, where appropriate, be taken into consideration.’ (22)

36.      The right to ‘judicial control’ and access to justice under Article 47 of the Charter are not assessed in this manner. They are subject to a traditional limitation test, entailing analysis of whether measures restricting it are provided by law, and whether they satisfy requirements stemming from the principle of proportionality, namely pursuit of a legitimate purpose, necessity, aptness for purpose, and confinement to what is required to secure the legitimate purpose. (23) This is now reflected in Article 52(1) of the Charter.

37.      It is well established that, depending on all of the circumstances, court fees can amount to a limitation on access to a court, as protected under Article 47 of the Charter. Thus, like restrictions on the availability of legal aid to secure the enforcement of EU rights, (24) the problem to hand is better assessed by reference to the test, described above, that is pertinent to the right to ‘judicial control’ rather than that applicable to remedies and procedural rules to determine whether they go beyond the limits of Member State procedural autonomy. I will now apply this test to the situation in the main proceedings.

2.      Application to the litigation to hand

a)      On the level of the standard court fee in administrative proceedings relating to public procurement

38.      The question to be analysed is whether the court fees in issue constitute a hindrance to the right of access to a court. (25) As pointed out in the written observations of the Commission, the European Court of Human Rights considered this question in its ruling, for example, in Stankov v. Bulgaria. (26) There it was held that the requirement to pay fees in connection with civil cases cannot in and of itself be regarded as a restriction on the right of access to a court that is incompatible per se with Article 6(1) of the ECHR. (27) However, the amount of the fees assessed in the light of the particular circumstances of a given case is a material factor in determining whether or not a person enjoyed his right of access to a court. (28)

39.      I shall first discuss the point raised by the national referring court that the standard court fee is based on the value of the litigation in terms of the theoretical value of the contract to be awarded, and not on the real benefit an enterprise participating in the award procedure is entitled to expect. According to the national referring court, this profit would correspond to 10 per cent of the value of the contract and would be in line with the rules applicable to court fees in Italian civil proceedings.

40.      I do not see any merit in this argument. It is mathematically irrelevant whether a standard court fee is calculated using a 10 per cent profit margin of the value of the contract as starting point, and not the value of the contract as such, if the outcome is the same. On the other hand, a system in which the expected profit was assessed individually for every contract award procedure and/or enterprise participating therein, with the result of variable court fees, would be cumbersome and unpredictable.

41.       Secondly, even if the level of the standard court fee seems to be relatively high, this finding must be balanced with the simple fact that public procurement is not social policy. It can be expected that enterprises participating in contract award procedures within the scope of Directive 2004/18 have sufficient economic and financial means to execute a contract of a value of EUR 200 000 or more. From this perspective a court fee of EUR 2 000, EUR 4 000 or EUR 6 000, as the case may be, cannot constitute a hindrance to access to a court, even taking into account the necessary lawyer’s fees. Nor can it be considered to be unduly restrictive of competition to the detriment of smaller enterprises.

42.      Thirdly, to my mind the fact that the proceedings can commence even if the court fee is not paid, (29) which is a factor that the Commission considered to be relevant in its written observations, is not pertinent. This is so because the Italian legislation is obviously built on the assumption that the applicant pays the court fees when they fall due. Also irrelevant, in my opinion, is the fact that the court fees are refunded if the applicant succeeds in his claims. For access to a court to be respected, there must be an avenue available to challenge decisions taken in contract award procedures, even it is not absolutely certain that the action will succeed. Hence, an excessive court fee can amount to a barrier to the right of access to a court as set out in Article 47 of the Charter, even if it could be recovered afterwards.

43.      For these reasons I am not concerned by the amount of the EUR 2 000 standard fee that Orizzonte Salute has been charged for the original application. (30) It is true that the court fees in issue are high in comparison with fees charged in Italy in other types of administrative litigation or in civil proceedings. However, the standard court fee (i.e. without any increases) in relation to the value of the contracts within the scope of Directive 2004/18, and in consequence, of Directive 89/665, never exceeds two per cent. This hardly constitutes a barrier to access to a court.

44.      Therefore, in my opinion the material factor in issue is the accumulation of court fees within the context of proceedings concerning the same contract award procedure, not their level as such.

b)      On cumulative court fees

45.      Having concluded that the amount of standard court fees applicable in Italian administrative proceedings on awards of contracts within the scope of Directives 2004/18 and 89/665 does not constitute, in and of itself, a restriction on the right of access to a court, it now falls to be determined whether there is any other reason to doubt their compliance with Article 47 of the Charter, particularly in the light of the accumulative nature of the fees imposed. If there is, a determination will need to be made as to whether the restriction found is prescribed by law, and is proportionate to the legitimate aim pursued. (31)

46.      Here I observe first that the court fees, including cumulative ones, are clearly prescribed by law. As to the legitimacy of the aim pursued, the European Court of Human Rights has held that the ‘aims pursued by the general rules on costs can be accepted as compatible with the general administration of justice, for example to fund the functioning of the judicial system and to act as a deterrent to frivolous claims. (32)

47.      Within the Italian administrative court system, proceedings relating to public procurement seem to enjoy special treatment, in the sense that they are dealt with more quickly than other actions, and increased court fees contribute to the financing of these courts enabling them to function expeditiously. This is in conformity with both the requirements of Directive 89/665 and the case-law of the European Court of Human Rights.

48.      However, at the hearing Orizzonte Salute emphasised that an enterprise which is excluded from the contract award procedure at the beginning of the process has to challenge, under Italian law, both the decision concerning selection of the participant in the contract award procedure, and the award of the contract itself. Moreover, in Italian contract award procedures there are often other decisions of the contracting authority relating, for example, to access to contract documents which need to be challenged separately during the course of the proceedings before the Italian administrative courts. As far as Italian law is concerned, all these amount to applications on new grounds that trigger the levying of a supplementary court fee of the same size as the fee charged for the original application.

49.      Orizzonte Salute alleges that it was charged EUR 2 000 for the original application and three times EUR 2 000 for supplementary applications, in addition to the EUR 2 000 payable for the fourth supplementary application that forms the object of this preliminary reference. None of these figures have been contested by the Italian Government or the defendants.

50.      The Italian system in issue may render recourse to judicial action futile from an economic point of view, even if they do pursue the legitimate aim of covering the cost of the administration of justice and discouraging frivolous claims. For example, a cumulative court fee of EUR 20 000, (33) when combined with lawyers’ fees, may make it economically unviable to challenge contracts close to the threshold for the applicability of the directives in question. (34) In this sense the fees in issue could dissuade undertakings that might otherwise institute legal challenge in the field of public procurement.

51.      In my opinion this may conflict with the fundamental right to ‘judicial control’ guaranteed in Article 47 of the Charter. As the European Court of Human Rights has held, procedural rules are to serve the aim of legal certainty and the proper administration of justice. They are not to ‘form a sort of barrier preventing the litigant from having his or her case determined on the merits by the competent court’. (35)

52.      In my opinion Article 2(1)(b) of Directive 89/665, as amended, refers to the ‘contract award procedure’ as the basic unit for judicial protection. Indeed, an enterprise seeking to participate in a contract award procedure intends to secure the contract for itself. From this perspective it is irrelevant if it has failed at the beginning of the award procedure, i.e. in the selection of the participants, or at the end, in other words, when the contract is awarded to another participant, or somewhere in between.

53.      It is within the domain of Member State judicial autonomy to determine how national law on administrative proceedings conceptualises challenges against an individual contract award procedure. For example, whether judicial challenges relating to the later steps of the contract award procedure are conceived as developing on the original application challenging the decision on selection of the participants, or whether they are to be considered as new pleas with additional grounds. However, procedural rules are to serve legal certainty and the proper administration of justice.

54.      Therefore it may be incompatible with Article 47 of the Charter to levy several and cumulative courts fees in judicial proceedings, at least if these cumulative fees have a dissuasive effect and are disproportionate when compared with the original fee, given that Article 2(1)(b) of Directive 89/665, as amended, envisages a single cause and objective, i.e. correcting any irregularity in the contract award procedure to the detriment of the enterprise.

55.      It is for the national referring court to conduct the exercise described in paragraph 36 above, in the light of the relevant case-law of the Court (including the judgment in the case to hand) (36) in order to determine whether the restricition on the right to ‘judicial control’ provided in Article 47 of the Charter caused by cumulative court fees is justified in terms of the proportionality test set out in Article 52(1) of the Charter. (37)

VI –  Conclusion

56.      For these reasons I propose that the preliminary question of the Tribunale Regionale di Giustizia Amministrativa di Trento be answered as follows:

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, interpreted in the light of Article 47 of the Charter of Fundamental Rights of the European Union and the principles of equivalence and effectiveness, does not preclude provisions of national law which set out a scale of standard court fees applicable only in administrative proceedings relating to public procurement provided that the level of the court fee does not constitute a barrier to the access to a court or render exercise of public procurement judicial review rights excessively difficult. It is not compatible with Directive 89/665, interpreted in the light of Article 47 of the Charter, to levy several and cumulative courts fees in judicial proceedings, in which an undertaking challenges the legality of a single contract award procedure in the sense of Article 2(1)(b) of Directive 89/665, unless this can be justified in terms of Article 52 (1) of the Charter, which is to be assessed by the national referring court.

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1 – Original language: English.

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2 – OJ 1989 L 395, p. 33, as amended by Directive 2007/66/EC of the European Parliament and of the Council amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts, OJ 2007 L 335, p. 31.

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3 –      OJ 1994 L 134, p. 114, as amended by Commission Regulation (EU) 1251/2011 amending Directives 2004/17/EC, 2004/18/EC and 2009/81/EC of the European Parliament and of the Council in respect of their application of thresholds for the procedures for the awards of contracts, OJ 2011 L 319 p. 43.

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4 – GURI n. 302, 29.12.2012, Suppl. Ordinario n.212.

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5 – For example, the reduced amount of EUR 300 for actions concerning residency or citizenship and EUR 325 for those concerning the public service.

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6 – The standard fee is EUR 2 000 where the value of the contract is EUR 200 000 or less; EUR 4 000 where it is between EUR 200 000 and EUR 1 000 000; and EUR 6 000 where it is over EUR 1 000 000.

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7 – I observe that the President of the Court accepted the written observations of all of these organisations prior to the oral procedure. That being so, despite the submissions made by the Italian Government, I do not intend to enter into an analysis of whether these observations are admissible.

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8 – Judgment in Kamberaj (C‑571/10, EU:C:2012:233), paragraph 41.

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9 – See for example judgments in Pohotovosť (C‑470/12, EU:C:2014:101), paragraph 29, and García Blanco (C‑225/02, EU:C:2005:34), paragraph 28.

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10 – Judgment in Universale-Bau and Others (C‑470/99, EU:C:2002:746), paragraph 71.

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11 – See the third subparagraph of Article 1(1) of Directive 89/665, as amended.

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12 – Judgment in Universale-Bau and Others (C‑470/99, EU:C:2002:746), paragraph 72.

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13 – In contrast see judgment in Edwards (C‑260/11, EU:C:2013:221) which concerned a situation in which EU measures in the field of environment law specifically required that the legal proceedings were not to be ‘prohibitively expensive’.

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14 – Judgment in DEB (C‑279/09, EU:C:2010:811).

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15 – See my Opinion in Liivimaa Lihaveis (C‑562/12, EU:C:2014:155) and Opinion of Advocate General Bot in Agrokonsulting (C‑93/12, EU:C:2013:172). For a recent example of consideration by the Court of the principles of effectiveness and equivalence in the context of remedies for the enforcement of EU public procurement rules see judgment in eVigilo (C‑538/13, EU:C:2015:166).

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16 – Judgment in Surgicare — Unidades de Saúde (C‑662/13, EU:C:2015:89), paragraph 30.

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17 – See eg Érsekcsanádi Mezőgazdasági (C‑56/13, EU:C:2014:352) paragraph 64.

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18 – For recent examples of disputes in which the EU and Member State claims in issue were not considered to be ‘analogous’ see judgments in Agrokonsulting (C‑93/12, EU:C:2013:432), in particular at paragraphs 40 to 42, and Baczó and Vizsnyiczai (C‑567/13, EU:C:2015:88), particularly at paragraph 47.

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19 – See by analogy my opinion in Târșia (C‑69/14, EU:C:2015:269), paragraphs 50 and 51.

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20 – See judgment in Johnston (222/84, EU:C:1986:206), paragraph 18. See also the explanations accompanying Article 47.

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21 – Judgment in San Giorgio (199/82, EU:C:1983:318).

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22 – Judgment in van Schijndel and van Veen (C‑430/93 and C‑431/93, EU:C:1995:441), paragraph 19.

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23 – Judgment in DEB (C‑279/09, EU:C:2010:811). I recall that in DEB (C‑279/09, EU:C:2010:811) the national referring court had formulated its preliminary question in terms of the principle of effectiveness but the Court answered on the basis of Article 47 of the Charter. I also recall that I observed in my Opinion in Donau Chemie and Others (C‑536/11, EU:C:2013:67) at paragraph 47 that ‘due account needs to be taken of Article 19(1) TEU, and the extent to which it supplies a supplementary guarantee to the principle of effectiveness. Pursuant to Article 19(1), Member States are bound to provide remedies ‘sufficient to ensure effective legal protection in the fields covered by Union law’. In other words, in the light of that Treaty provision, the standard of effective judicial protection for EU based rights seems to be more demanding than the classical formula referring to practical impossibility or excessive difficulty. In my opinion this means that national remedies must be accessible, prompt, and reasonably cost effective.’

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24 – Judgment in DEB (C‑279/09, EU:C:2010:811).

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25 – I note that if I were considering this problem by reference to restrictions on Member State procedural autonomy, I would be considering whether the Court fees in issue rendered enforcement of the relevant EU laws impossible in practice or excessively difficult.

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26 – No. 68490/01, 12 July 2007.

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27 – Ibid., at paragraph 52.

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28 – Ibid., and case-law cited.

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29 – Compare, however, paragraph 53 of Stankov v. Bulgaria, no. 68490/01, 12 July 2007.

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30 – At paragraph 58 of Stankov v. Bulgaria, no. 68490/01, 12 July 2007, the European Court of Human Rights, in finding that the court charges in issues breached right of access to a court, noted that ‘the court fees’ system applied by the Bulgarian courts had the effect of depriving the applicant of almost all of the compensation the State had been ordered to pay him for his unjustified pre-trial detention’.

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31 – If the Member State court were considering a national rule impeding the principle of effectiveness, they would be bound to consider whether the rule in question rendered EU law impossible in practice or excessively difficult to enforce, in combination with the van Schijndel test reproduced above at paragraph 35.

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32 – Stankov v. Bulgaria, no. 68490/01, 12 July 2007, §  57.

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33 – A cumulative court fee of EUR 20 000 would be applicable if the value of the contract challenged in Orizzonte Salute’s original application were for example EUR 250 000, and the litigant concerned had made the same number of applications as Orizzonte Salute. In such circumstances, five court fees of EUR 4 000 would be charged, even though the standard court fee for contracts with a value between EUR 200 000 and EUR 1 000 000 is EUR 4 000.

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34 – See extract from Stankov v. Bulgaria, no. 68490/01, 12 July 2007, reproduced above at footnote 30 concerning a legal challenge that was not economically viable.

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35 – Omerović v. Croatia(no. 2), no. 22980/09 2014, § 39, 5 December 2013.

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36 – See notably judgment in DEB (C‑279/09, EU:C:2010:811) and judgment in Alassini and Others (C‑317/08 to C‑320/08, EU:C:2010:146).

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37 – I note, however, that the Court has held that, in ‘in order to assess … proportionality, the national court may … take account of the amount of the costs of the proceedings in respect of which advance payment must be made and whether or not those costs might represent an obstacle to access to the courts’. See judgment in DEB (C‑279/09, EU:C:2010:811), paragraph 61.