Economic operators cannot bring an action against the decisions of a contracting authority relating to a tender procedure in which they have decided not to participate. That was, in summary, the decision taken by the European Court of Justice on November, the 28^th, 2018 in Case C‑328/17.

The Case

The Tribunale Amministrativo Regionale della Liguria took a case to the Court asking essentially whether both Article 1(3) of Directive 89/665 and Article 1(3) of Directive 92/13 preclude national legislation, such as that at issue in the main proceedings, which does not allow economic operators to bring an action against decisions of the contracting authority relating to a tender procedure in which they have decided not to participate, on the ground that the legislation applicable to that procedure made it very unlikely that they would be awarded the public contract concerned.

The dispute in the main proceedings and the question referred for a preliminary ruling

After having declared admissible the request for a preliminary ruling, rejecting the written submission of both the Italian and Spanish Governments and the European Commission, the European Court of Justice remembered that the Member States are required to ensure that the review procedures provided by the Article 1(3) of Directive 89/665 are available ‘at least’ to any person having or having had an interest in obtaining a particular public contract and who has been or risks being harmed by an alleged infringement of the EU law on public procurement or national rules transposing that law These procedures, said the Court, shouldn’t be available to any person wishing to obtain a public contract, but they may require that the person concerned has been or risks being harmed by the infringement he alleges.

And what if an undertaking has not submitted a tender because there were allegedly discriminatory specifications in the documents relating to the invitation to tender, or in the contract documents, which have specifically prevented it from being in a position to provide all the services requested?

The Court noticed that in that case there wouldn’t be a violation of the Article 1(3) of Directive 89/665 and Article 1(3) of Directive 92/13 if an operator which has not submitted a tender, according to the applicable local regulation, has a right to bring proceedings, inter alia, where it considers that the specifications contained in the documents relating to the call for tenders makes it impossible to submit a tender.

The decision

Stated the above, the European Court of Justice ruled that 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 characterizing 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.