ORDER OF THE COURT (Grand Chamber)
16 July 2015 (*)
(Reassignment of the case — Reopening of the oral procedure)
In Case C‑689/13,
REQUEST for a preliminary ruling under Article 267 TFEU from the Consiglio di Giustizia amministrativa per la Regione siciliana (Italy), made by decision of 26 September 2013, received at the Court on 24 December 2013, in the proceedings
Puligienica Facility Esco (PFE) SpA
v
Airgest SpA,
other parties to the proceedings:
Gestione Servizi Ambientali Srl,
Zenith Services Group Srl,
THE COURT (Grand Chamber),
composed of K. Lenaerts, Vice-President of the Court, acting as President, R. Silva de Lapuerta, M. Ilešič, T. von Danwitz, C. Vajda, S. Rodin, K. Jürimäe, Presidents of Chambers, A. Rosas, E. Juhász (Rapporteur), A. Borg Barthet, J. Malenovský, E. Levits, D. Šváby, J.L. da Cruz Vilaça and F. Biltgen, Judges,
Advocate General: M. Wathelet,
Registrar: A. Calot Escobar,
after hearing the Advocate General,
makes the following
Order
1 This request for a preliminary ruling concerns the interpretation of 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 (OJ 1989 L 395, p. 33), as amended by Directive 2007/66/ΕC of the European Parliament and of the Council of 11 December 2007 (OJ 2007 L 335, p. 31), Article 267 TFEU and the principle of the primacy of EU law.
2 The request has been made in proceedings between Puligienica Facility Esco (PFE) SpA and Airgest SpA concerning the validity of the award of a public contract to Gestione Servizi Ambientali Srl and Zenith Services Group Srl.
3 By decision of 20 January 2015, the Court assigned Case C‑689/13 to the Fifth Chamber. The hearing took place on 11 March 2015 and the Advocate General delivered his Opinion on 23 April 2015.
4 Under Italian legislation, the Consiglio di Giustizia amministrativa per la Regione siciliana (Council of Administrative Justice for the Region of Sicily) is a separate chamber of the Consiglio di Stato (Council of State). It is composed of judges of the Consiglio di Stato and performs the latter’s functions in the Autonomous Region of Sicily. It is, in that region, the court of appeal against judgments of the regional administrative courts. In reply to a question put by the Court, the Italian Government confirmed that the Consiglio di Giustizia amministrativa per la Regione siciliana is a court of last instance, there being no judicial remedy against its judgments.
5 The Consiglio di Giustizia amministrativa per la Regione siciliana queries, in the context of the second question referred for a preliminary ruling, the compatibility with EU law of Article 99(3) of Legislative Decree No 104 of 2 July 2010 establishing the Italian Code of Administrative Procedure, in so far as that provision is to be interpreted as meaning that, as regards a legal issue which concerns the interpretation and the application of EU law, the chambers of the Consiglio di Stato are required, if they do not concur with a principle of law stated by the plenary session of the Consiglio di Stato, to refer that issue to the plenary session and, if the plenary session rules on the dispute in its entirety, are precluded from making a reference for a preliminary ruling to the Court of Justice, since the plenary session of the Consiglio di Stato alone has jurisdiction in those circumstances to refer that issue to the Court.
6 The referring court also asks whether the national legislation does not render ineffective not only the power or possibly the obligation of a chamber of the Consiglio di Stato to make a reference for a preliminary ruling to the Court of Justice, but also its obligation directly to apply the existing and well-established case-law of the Court and the Court’s answer to a question previously referred to it by that chamber.
7 In the present case, the question therefore arises whether the concept of ‘court or tribunal’ within the meaning of Article 267 TFEU designates, on the basis of a functional approach, a chamber of a court or tribunal of a Member State, which is properly seised of a dispute and which is formally part of that court or tribunal, or whether, adopting an organisational approach, that concept applies only to that court or tribunal as a whole, of which the chamber initially seised forms part. The question also arises whether the obligation of a national court or tribunal directly to apply the clear conclusions drawn from the case-law of the Court and from the Court’s answer to a question previously referred to it by that chamber is one that falls on that chamber or on that court or tribunal as a whole.
8 In the light of the importance of these questions, the Fifth Chamber decided on 10 June 2015, pursuant to Article 60(3) of the Rules of Procedure of the Court of Justice, to refer the case to the Court, which reassigned it to the Grand Chamber.
9 The Court accordingly considers that it is necessary, in accordance with Article 83 of the Rules of Procedure, to order the reopening of the oral part of the procedure in order to enable the interested persons referred to in Article 23 of the Statute of the Court of Justice of the European Union to express their views, if any, on the questions raised, and to give the Advocate General the opportunity to deliver a further Opinion.
On those grounds, the Court (Grand Chamber) hereby orders:
1. The oral procedure in Case C‑689/13 is reopened.
2. The date of the hearing is set as 15 September 2015.
3. The interested persons referred to in Article 23 of the Statute of the Court of Justice of the European Union shall be invited to state their views, if any, in writing within a period of four weeks, including the extension on account of distance, of notification of the present order, and/or to express their views at the hearing, on the following question:
Do the concept of ‘court or tribunal’ within the meaning of Article 267 TFEU and the obligation to apply EU law as interpreted by the Court of Justice of the European Union apply, on the basis of a functional approach, to the chamber of a court or tribunal of a Member State that is seised of a dispute, or, on the basis of an organisational approach, only to that court or tribunal as a whole, of which that chamber is formally part?
4. Costs are reserved.
[Signatures]