Combinatie Spijker Infrabouw-De Jonge Konstruktie and Others v Provincie Drenthe.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Cunha Rodrigues
• ECLI: ECLI:EU:C:2010:751
• Docket Number: C-568/08
• Date: 09 December 2010
• Procedure Type: Reference for a preliminary ruling

Case C-568/08

Combinatie Spijker Infrabouw-De Jonge Konstruktie and Others

v

Provincie Drenthe

(Reference for a preliminary ruling from the Rechtbank Assen)

(Public contracts – Procedures for reviewing the award of public works contracts – Directive 89/665/EEC – Duty of Member States to make provision for a review procedure – National legislation permitting a court hearing an application for interim measures to authorise a decision awarding a public contract which may subsequently be held contrary to European Union legal rules by the court hearing the substance of the case – Compatibility with the directive – Award of damages to the tenderers harmed – Conditions)

Summary of the Judgment

1. Preliminary rulings – Jurisdiction of the Court – Limits – Clearly irrelevant questions and hypothetical questions raised in a context that excludes a useful answer – Questions bearing no relation to the subject-matter of the dispute in the main proceedings

(Art. 234 EC)

2. Approximation of laws – Review procedures in respect of the award of public supply and public works contracts – Directive 89/665 – Duty of Member States to make provision for a review procedure – Interlocutory procedure

(European Parliament and Council Directive 2004/18; Council Directive 89/665, as amended by Directive 92/50, Arts 1(1) and (3), and 2(1) and (6)

3. Approximation of laws – Review procedures in respect of the award of public supply and public works contracts – Directive 89/665 – Duty of Member States to make provision for a review procedure – Interlocutory procedure

(European Parliament and Council Directive 2004/18; Council Directive 89/665, as amended by Directive 92/50)

4. EU law – Rights conferred on individuals – Infringement by a Member State – Obligation to make good damage caused to individuals

1. The Court of Justice may not give a preliminary ruling on a question submitted by a national court when it is quite obvious that the ruling sought by that court on the interpretation or validity of EU law bears no relation to the actual facts of the main action or its purpose, when the problem is hypothetical, or when the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it.

(see para. 43)

2. Article 1(1) and (3) and Article 2(1) and (6) 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 92/50, do not preclude a system in which, in order to obtain a rapid decision, the only procedure available is characterised by the fact that it is designed to enable swift adoption of a mandatory measure, that lawyers have no right to exchange views, that no evidence is, as a rule, presented other than in written form, that statutory rules on evidence are not applicable, and that the judgment does not lead to the final determination of the legal situation and does not form part of a decision-making process leading to such a final decision.

As is stated in the fifth recital of Directive 89/665, the short duration of procedures for the award of public contracts means that infringements of provisions of EU law need to be dealt with urgently.

Given that objective, the said directive leaves Member States a discretion in the choice of the procedural guarantees for which it provides, and the formalities relating thereto.

(see paras 51, 57, 59, 65, operative part 1)

3. 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 92/50, must be interpreted as not precluding a court hearing an application for interim measures, for the purposes of adopting a provisional measure, from carrying out an interpretation of Directive 2004/18 of the European Parliament and of the Council on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts which is, subsequently, classified as erroneous by the court hearing the substance of the case.

On the one hand, the court hearing an application for interim measures is called upon to give a decision in the context of an urgent procedure in which both the gathering of evidence and the examination of the pleas of the parties are necessarily more cursory than in the context of the proceedings on the substance. On the other hand, the intervention of the court hearing an application for interim measures is not designed, like that of the court hearing the substance, to rule definitively on the claims presented to it but to protect provisionally the interests at stake, possibly by balancing them.

(see paras 77, 80, operative part 2)

4. As regards State liability for damage caused to individuals by infringements of EU law for which the State may be held responsible, the individuals harmed have a right to redress where the rule of EU law which has been infringed is intended to confer rights on them, the breach of that rule is sufficiently serious, and there is a direct causal link between the breach and the loss or damage sustained by the individuals. When there exist no provisions of EU law in that area, it is for the internal legal order of each Member State, once those conditions have been complied with, to determine the criteria on the basis of which the damage arising from an infringement of EU law on the award of public contracts must be determined and estimated, provided the principles of equivalence and effectiveness are observed.

(see para. 92, operative part 3)

JUDGMENT OF THE COURT (Second Chamber)

9 December 2010 (*)

(Public contracts – Procedures for reviewing the award of public works contracts – Directive 89/665/EEC – Duty of Member States to make provision for a review procedure – National legislation permitting a court hearing an application for interim measures to authorise a decision awarding a public contract which may subsequently be held contrary to European Union legal rules by the court hearing the substance of the case – Compatibility with the directive – Award of damages to the tenderers harmed – Conditions)

In Case C‑568/08,

REFERENCE for a preliminary ruling under Article 234 EC from the Rechtbank Assen (Netherlands), made by decision of 17 December 2008, received at the Court on 22 December 2008, in the proceedings

Combinatie Spijker Infrabouw/De Jonge Konstruktie,

Van Spijker Infrabouw BV,

De Jonge Konstruktie BV

v

Provincie Drenthe,

THE COURT (Second Chamber),

composed of J.N. Cunha Rodrigues (Rapporteur), President of the Chamber, A. Arabadjiev, A. Rosas, A. Ó Caoimh and P. Lindh, Judges,

Advocate General: P. Cruz Villalón,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Combinatie Spijker Infrabouw/De Jonge Konstruktie, Van Spijker Infrabouw BV and De Jonge Konstruktie BV, by H. Hoogwout, advocaat,

– the Provincie Drenthe, by M. Mutsaers and A. Hoekstra‑Borzymowska, advocaten,

– the Netherlands Government, by C. Wissels and Y. de Vries, acting as Agents,

– the Commission of the European Communities, by M. Konstantinidis and S. Noë, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 14 September 2010,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Articles 1(1) and (3) and 2(1) and (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 (OJ 1989 L 395, p. 33), as amended by Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1; ‘Directive 89/665’).

2 The reference has been made in the context of a dispute between Combinatie Spijker Infrabouw/De Jonge Konstruktie, Van Spijker Infrabouw BV and De Jonge Konstruktie BV (‘Combinatie and others’) and Provincie Drenthe (Province of Drenthe; ‘Provincie’), concerning the award of a public works contract.

Legal context

Union legislation

3 The fifth recital of Directive 89/665 states:

‘Whereas, since procedures for the award of public contracts are of such short duration, competent review bodies must, among other things, be authorised to take interim measures aimed at suspending such a procedure or the implementation of any decisions which may be taken by the contracting authority; whereas the short duration of the procedures means that the aforementioned infringements need to be dealt with urgently’.

4 Article 1(1) and (3) of Directive 89/665 provide:

‘1. The Member States shall take the measures necessary to ensure that, as regards contract award procedures falling within the scope of Directives 71/305/EEC, 77/62/EEC, and 92/50/EEC, 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 the following Articles and, in particular, Article 2(7) on the grounds that such decisions have infringed Community law in the field of public procurement or nation[al] rules implementing that law.

...

3. The 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 public supply or public works contract and who has been or risks being harmed by an alleged infringement. In particular, the Member States may require that the person seeking the review must have previously notified the contracting authority of the...