Time Limits

February 27th, 2019

There is an old joke: “Conservative MPs: Lieutenant-Colonel Sir Walter Bromley-Davenport to name just a few”. In the Piedmont they evidently go in for very long names for parties to litigation. Case C-54/18 is fair enough. But the full title is a bit much: Cooperativa Animazione Valdocco Soc. coop.soc. Impresa Sociale Onlus v Consorzio Intercommunale Servizi Sociali de Pinerolo. That is even before coming to a Second Defendant and a host of Interested Parties.  At any rate, none of this has deterred the CJEU from giving Judgment about a 30-day time limit for applying for a review of decisions to allow tenderers to participate in, or to exclude them from, a public procurement tendering procedure.

The CJEU considered not only the public procurement Directive in force at the material time, but also the Charter of Fundamental Rights of the European Union (“the Charter”), and especially Article 47, the right to effective judicial protection.

The subject matter was the award of a public services contract for home care services to an ad hoc consortium of undertakings, applying MEAT. The key issues were as to the application of EU principles of equivalence, effectiveness and certainty.

The CJEU reiterated as follows (emphasis added):-

  1. …  it is clear from the very wording of Article 2c of Directive 89/665 that a time limit, … within which actions against decisions of contracting authorities to admit or exclude tenderers from participation in public procurement procedures falling within the scope of Directive 2014/24 must be brought within 30 days from the time that the decisions are sent to the parties concerned, failing which those actions will be time-barred is, in principle, compatible with EU law, provided that those decisions contain a summary of the relevant reasons.

27      Furthermore, Article 1(1) of Directive 89/665 requires the Member States to ensure that decisions taken by contracting authorities may be reviewed as effectively and as rapidly as possible. The Court has already had occasion to point out that the imposition of time limits for bringing actions which will be time-barred if those time limits are not complied with, enables the objective of rapidity pursued by Directive 89/665, which requires operators to challenge promptly preliminary measures or interim decisions taken in public procurement procedures, to be attained …

28      The Court also held that setting reasonable time limits for bringing proceedings must be regarded, in principle, as satisfying the requirement of effectiveness under Directive 89/665, since it is an application of the fundamental principle of legal certainty … and is compatible with the fundamental right to effective legal protection …

29      The objective of rapidity pursued by Directive 89/665 must, however, be achieved in national law in compliance with the requirements of legal certainty. Thus, Member States have the obligation to put in place rules on time limits which are sufficiently precise, clear and transparent so as to enable individuals to ascertain their rights and obligations …

30      In that connection, when defining the detailed procedural rules governing the remedies intended to protect rights conferred by EU law on candidates and tenderers harmed by decisions of contracting authorities, the Member States must not compromise the effectiveness of Directive 89/665 or the rights conferred on individuals by EU law, in particular, the right to an effective remedy and to a fair hearing enshrined in Article 47 of the Charter …

31      The objective laid down in Article 1(1) of Directive 89/665 of guaranteeing effective procedures for review of infringements of the provisions applicable in the field of public procurement can be realised only if the periods laid down for bringing such proceedings start to run only from the date on which the claimant knew, or ought to have known, of the alleged infringement of those provisions …

32      It follows that a national law … which provides that actions against the decisions of contracting authorities admitting or excluding tenderers from participating in public procurement procedures must be brought within 30 days from their communication to the parties concerned, failing which they will be time-barred, is compatible with Directive 89/665 only if the decisions sent contain a summary of the relevant reasons ensuring that the parties concerned knew or ought to have known of the infringements of EU law alleged.

33      According to the Court’s settled case-law, the effectiveness of the judicial review guaranteed by Article 47 of the Charter requires that the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him is based, either by reading the decision itself or by requesting and obtaining notification of those reasons, so as to make it possible for him to defend his rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in his applying to the court with jurisdiction, and in order to put the latter fully in a position in which it may carry out the review of the lawfulness of the national decision in question …”

 “35    … Member States must ensure that review procedures are available, under detailed rules which they themselves may establish, at least to any person having or having had an interest in obtaining a particular contract who has been or risks being harmed by an alleged infringement.

36      The latter provision is intended to apply, inter alia, to the situation of any tenderer which considers that a decision allowing a competitor to participate in a tender procedure is unlawful and is likely to cause it harm, that likelihood of harm being sufficient to justify an immediate interest in bringing an action against that decision, leaving aside harm which may also result from the award of the contract to another candidate.

37      In any event, the Court has ruled that a decision allowing a tenderer to participate in an award procedure is a decision which may, under Article 1(1) and Article 2(1)(b) of Directive 89/665, be subject to an independent judicial review …

38      Therefore, the answer to the first question is that Directive 89/665 and, in particular, Articles 1 and 2c, read in the light of Article 47 of the Charter, must be interpreted as meaning that it does not preclude a national law … which provides that actions against the decisions of contracting authorities to allow or exclude tenderers from participation in public procurement award procedures must be brought within 30 days from their communication to the parties concerned, failing which they will be time-barred, provided that decisions communicated contain a summary of the relevant reasons, ensuring that the persons concerned knew or could have known of the infringement of EU law alleged.

39      By its second question, the referring court asks essentially whether Article 1(1) and (2) of Directive 89/665, read in the light of Article 47 of the Charter, must be interpreted as precluding national legislation … which provides that, in the absence of remedies against the decisions of the contracting authorities to allow tenderers to participate in public procurement procedures within 30 days of their communication, it is no longer possible for the parties concerned to rely on the illegality of those decisions in the context of an appeal against subsequent acts and, in particular, against award decisions.

40      In that connection, the Court has repeatedly held that Directive 89/665 must be interpreted as not, in principle, precluding national legislation which provides that any application for review of a contracting authority’s decision must be commenced within a time limit laid down to that effect and that any irregularity in the award procedure relied upon in support of such application must be raised within the same period, if it is not to be out of time, with the result that, when that period has passed, it is no longer possible to challenge such a decision or to raise such an irregularity, provided that the time limit in question is reasonable …

41      That case-law is based on the consideration that full implementation of the objective sought by Directive 89/665 would be undermined if candidates and tenderers were allowed to invoke, at any stage of the award procedure, infringements of the rules of public procurement, thus obliging the contracting authority to restart the entire procedure in order to correct such infringements … Such conduct, in so far as it may delay, without any objective reason, the commencement of the review procedures which Member States were required to institute by Directive 89/665 impairs the effective implementation of the EU directives on the award of public contracts …”

“43      However, although national rules on limitation periods are not in themselves contrary to the requirements of Article 2c of Directive 89/665, it cannot be excluded that, in the context of the particular circumstances, or having regard to some of their rules, their application may entail a breach of the rights conferred on individuals by EU law, in particular, the right to an effective remedy and the right to a fair trial, enshrined in Article 47 of the Charter …

44      Thus, the Court has already had the occasion to rule that Directive 89/665 was to be interpreted as preluding rules on limitation periods laid down by national law from being applied in such a way that a tenderer is refused access to a review of an unlawful decision even though he became aware of that illegality only after the expiry of the time limit …

45      It must also be pointed out …  that the Court also held that effective procedures for review of infringements of the provisions applicable in the field of public procurement can be realised only if the time limits within which to bring proceedings start to run from the date on which the claimant knew, or ought to have known, of the alleged infringement of those provisions …”

“48      It must be added that it is for the referring court interpret the national law in a way which accords with the objective of Directive 89/665. Where an interpretation in accordance with the objective of Directive 89/665 is not possible, the national court must refrain from applying provisions of national law which are at variance with that directive …, since Article 1(1) thereof is unconditional and sufficiently precise to be relied on against the contracting authority …”

Under the European Union (Withdrawal) Act 2018 the public procurement Directives and Regulations are amongst “retained” existing EU law: Sections 2 and 3.  However, an important exception is that the Charter is not part of domestic law on or after “exit day”: Section 5(4).l

 

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