Language of document : ECLI:EU:C:2015:779

Case C‑166/14

MedEval — Qualitäts-, Leistungs- und Struktur-Evaluierung im Gesundheitswesen GmbH

(Request for a preliminary ruling from the Verwaltungsgerichtshof)

(Reference for a preliminary ruling — Public procurement — Directive 89/665/EEC — Principles of effectiveness and equivalence — Review procedures concerning the award of public contracts — Period allowed for commencing proceedings — National legislation making an action for damages subject to a precondition that the procedure be declared unlawful — Limitation period which starts to run irrespective of the applicant’s knowledge of the unlawfulness)

Summary — Judgment of the Court (Fifth Chamber), 26 November 2015

1.        Approximation of laws — Review procedures in respect of the award of public supply and public works contracts — Directive 89/665 — Member States’ duty to provide for a review procedure — Actions for damages — Member States’ discretion — Limits — Respect for the principles of equivalence and effectiveness

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

2.        Approximation of laws — Review procedures in respect of the award of public supply and public works contracts — Directive 89/665 — Time-limit for instituting proceedings — National legislation making an action for damages subject to a precondition that the procedure be declared unlawful — Limitation period which starts to run irrespective of the applicant’s knowledge of the unlawfulness — Unlawful — Infringement of the principle of effectiveness

(Council Directive 89/665, as amended by Directive 2007/66, Arts 1(1) and (3))

1.        Article 1(1) and (3) of Directive 89/655 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, requires the Member States to take the measures necessary to ensure that decisions taken by the contracting authorities which are incompatible with EU law may be reviewed effectively and, in particular, as rapidly as possible and ensure wide availability of reviews with respect 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.

In that context, it is for the Member States to lay down the detailed procedural rules governing actions for damages in public procurement matters. However, the fact remains that those detailed procedural rules must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not make it in practice impossible or excessively difficult to exercise rights conferred by EU law (principle of effectiveness).

(see paras 28, 37)

2.        EU law, in particular the principle of effectiveness, precludes national legislation which makes bringing an action for damages in respect of the infringement of a rule of public procurement law subject to a prior finding that the public procurement procedure for the contract in question was unlawful because of the lack of prior publication of a contract notice, where the action for a declaration of unlawfulness is subject to a six-month limitation period which starts to run on the day after the date of the award of the public contract in question, irrespective of whether or not the applicant in that action was in a position to know of the unlawfulness affecting the decision of the awarding authority.

Making the admissibility of actions for damages subject to a prior finding that the public procurement procedure for the contract in question was unlawful because of the lack of prior publication of a contract notice, where the action for a declaration of unlawfulness is subject to a six-month limitation period, irrespective of whether or not the person harmed knew that there had been an infringement of a rule of law, is likely to render impossible in practice or excessively difficult the exercise of the right to bring an action for damages. Where there has been no prior publication of a contract notice, such a limitation period of six months is likely not to enable a person harmed to gather the necessary information with a view to a possible action, thus preventing that action from being brought.

(see paras 41, 42, 46, operative part)