Symvoulio Apochetefseon Lefkosias v Anatheoritiki Archi Prosforon.

• Jurisdiction: European Union
• Celex Number: 62008CC0570
• ECLI: ECLI:EU:C:2010:301
• Date: 01 June 2010
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-570/08

OPINION OF ADVOCATE GENERAL

CRUZ VILLALÓN

delivered on 1 June 2010 ¹(1)

Case C‑570/08

Simvoulio Apokhetevseon Lefkosias

v

Anatheoritiki Arkhi Prosforon

(Reference for a preliminary ruling from the Anotato Dikastirio Kiprou (Supreme Court of Cyprus))

(Public works and public supply contracts – Review procedures for awards – Interpretation of Article 2(8) of Council Directive 89/665/EEC – Right of the contracting authority to challenge before the courts the decisions of the body, not judicial in character, responsible for review procedures)

I – Introduction

1. The Anotato Dikastirio Kiprou (Supreme Court of Cyprus), acting as a court of first instance, (2) asks the Court of Justice whether it can be inferred from Article 2(8) of Directive 89/665/EEC (3) (‘Directive 89/665’ or ‘the Directive’) that the contracting authority for a public contract has a right to challenge before the courts the annulment of its decision by the administrative body responsible for the supervision of review procedures.

II – Legal framework

A –Directive 89/665

2. Pursuant to Article 1(1), ‘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 national rules implementing that law.’ (4)

3. Article 1(3) states:

‘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 alleged infringement and of his intention to seek review.’

4. Article 2(8) provides:

‘Where bodies responsible for review procedures are not judicial in character, written reasons for their decisions shall always be given. Furthermore, in such a case, provision must be made to guarantee procedures whereby any allegedly illegal measure taken by the review body or any alleged defect in the exercise of the powers conferred on it can be the subject of judicial review or review by another body which is a court or tribunal within the meaning of Article 177 of the EEC Treaty and independent of both the contracting authority and the review body.

…’ (5)

B –Cypriot law

5. Under Article 146.2 of the Constitution of the Republic of Cyprus, a request for judicial review of the acts or omissions of the Administration ‘may be made by any person whose existing legitimate interests, as an individual or as a member of a community, are adversely and directly affected by the decision, act or omission’.

6. Law No 101(I)/2003 on the Award of Contracts (supply, works and services), as amended by Law No 181(I)/2004, was enacted in order to bring Cypriot legislation into line with European Union law, including Directive 89/665 and, to that end, Article 55 created the Anatheoritiki Arkhi Prosforon (tenders review authority, ‘the review authority’) and Article 56 gave it jurisdiction to hear ‘hierarchical appeals’ against the decisions of contracting authorities. Article 60 of that law, as amended by Law No 181(I)/2004, provides: ‘Interested parties who believe that they have been wronged by the decision of the [the review authority] shall be entitled to seek a review by the Anotato Dikastirio in accordance with Article 146 of the Constitution. The contracting authority shall also be entitled to seek a review by the Anotato Dikastirio pursuant to Article 146 initially of the Constitution where, on the basis of adequate documentary evidence, the decision of the review authority can be regarded as unfair to the aforementioned authority.’

7. As will be seen, this provision has been the subject of a declaration by the Anotato Dikastirio which is particularly relevant to this case.

III – Background to the national proceedings and the question referred

8. In June 2003, the Simvoulio Apokhetevseon Levkosias (Nicosia sewerage board, ‘the Simvoulio’), (6) acting as a contracting authority, published a tender notice for the design, construction, operation and maintenance, for a period of 10 years, of a wastewater treatment plant in Anthoupolis.

9. Among the preselected tenderers were the Degremont SA & Atlas Pantou Co Ltd consortium (‘Degremont’) and the WTE BAMAG consortium.

10. The respective tenders having been submitted, the Simvoulio informed Degremont of its decision to award the contract to the WTE BAMAG consortium.

11. On 7 October 2005 Degremont appealed against that decision to the review authority, and sought an interim measure suspending the operation of the Simvoulio’s decision, given that the latter would entail the definitive award of the contract. The date of 13 October 2005 was set for the interim hearing but, as merely applying for the interim measure did not (at the time the events took place) give rise to any suspension of operation, the Simvoulio in fact awarded the contract to the WTE BAMAG consortium before the review authority gave its decision on the application for suspension.

12. On 14 February 2006, the review authority gave its decision in the substantive case, annulling the Simvoulio’s decision. (7)

13. WTE BAMAG did not bring legal proceedings challenging that decision before the Anotato Dikastirio. The Simvoulio, by contrast, did so (8) on 31 March 2006, relying on Article 146.2 of the Constitution and Article 60 of Law No 101(I) /2003 on the Award of Contracts for the purposes of locus standi.

14. While this case was still pending, the Anotato Dikastirio, sitting in full court, delivered its judgment of 10 December 2007 in another case (9) involving the same parties. In it, the Anotato Dikastirio rejected the argument that the Simvoulio, as a contracting authority, had a legitimate interest in calling for review of the annulment decision of the review authority because, in summary, (1) the latter decision forms part of a complex award procedure, (2) the review authority is a second-instance administrative body (of higher instance) in relation to the Simvoulio, for which reason one part of the administration cannot have a legitimate interest as against another part of the administration, (3) contracting authorities protect the public interest but have no interests of their own and, (4) Article 60 of Law No 101(I) /2003 cannot grant a right to review to the contracting authority if such a right is not recognised by Article 146.2 of the Constitution.

15. The Anotato Dikastirio (in case 629/2006), as court of first instance, mindful of the case-law laid down by the full court and in view of the fact that that case-law contained no analysis of the Cypriot legislation in the light of Directive 89/665, stayed the proceedings and referred the matter to the Court of Justice for a preliminary ruling in the following terms:

‘To what extent does Article 2(8) of Directive 89/665/EC recognise contracting authorities as having a right to judicial review of annulment decisions by bodies responsible for review procedures, when those bodies are not judicial in character?’

IV – The proceedings before the Court of Justice

16. The order for reference was lodged with the Court Registry on 22 December 2008.

17. The Simvoulio, the Czech Government and the Commission call for a positive response from the Court of Justice to the question referred by the Anotato Dikastirio, to the effect that Article 2(8) of Directive 89/665 does recognise the right of contracting authorities to judicial review of decisions by bodies responsible for review procedures.

18. In the view of the review authority, Directive 89/665 provides protection for undertakings but not for contracting authorities, for they cannot be regarded as having separate interests for the purposes of taking judicial action against the bodies responsible for reviewing their decisions.

19. At the hearing on 25 March 2010, the representatives of the Simvoulio, the review authority and the Commission presented their oral submissions.

V – The substance of the case

20. The reference for a preliminary ruling from the Anotato Dikastirio raises the question, for the first time in the case-law of the Court of Justice, whether, on the basis of Directive 89/665, a contracting authority must have the right to contest the decisions of another public body charged with the review of that authority’s decisions, when, without prejudice to the public nature of both bodies, they have separate legal personalities, belong, in addition, to different branches of administration and, in terms of function, perform different tasks.

21. The answer to this question must be prefaced by some thoughts on the structure of the actions for review contemplated by Directive 89/665, before going on to analyse the scope of Article 2(8) of the Directive, which is relied on here.

22. As early as in the third recital in the preamble to the...