In the case C-497/20 that led to the ruling of 21 December 2021, the contracting authority launched a procedure for the purpose of awarding a public contract to an employment agency for the temporary supply of personnel. Randstad Italia had been excluded from the procedure because its technical offer did not meet the minimum threshold.
Randstad Italia challenged not only its own exclusion but also the regularity of the procedure (failure to divide the call for tenders into lots, that the assessment criteria were imprecise, and that the appointment of the procurement committee was unlawful).
The competent administrative court of first instance declared the action admissible. However, the action was dismissed on merits. Upon appeal, the Italian Council of State held that the pleas challenging the regularity of the procedure should have been declared inadmissible, since Randstad Italia lacked the legal interest to raise them.
Finally, Randstad Italia appealed to the Italian Supreme Court of Cassation against the judgment of the Council of State. It maintained that the latter had infringed its right to an effective remedy.
However, according to Italian constitutional law, appeals in cassation against decisions of the Council of State are only permitted for reasons of jurisdiction, whereas in the present case Randstad Italia’s appeal was based on a plea alleging an infringement of EU law.
The Supreme Court of Cassation then decided to refer the matter to the Court of Justice for a preliminary ruling. It asked questions about the compatibility of such a national provision with the right to an effective remedy under EU law.
First, the Court confirmed that in light of the principle of procedural autonomy, it is for the national legal order of each Member State to establish procedural rules for remedies to ensure effective legal protection for individual parties in the fields covered by EU law. Then, the Court stated that EU law, in principle, does not preclude Member States from restricting or imposing conditions on the pleas which may be relied on in proceedings in an appeal in cassation, provided that the principles of equivalence and effectiveness are respected.
Even if there is no possibility of lodging an appeal before the highest court in the judicial order against a decision of the highest administrative court, provided there is an opportunity for any person with an interest in obtaining a public tender to bring an action before an independent and impartial tribunal and that the two above-mentioned principles are respected, there is no infringement of EU law.
However, the Court of Justice found that the Italian Council of State had wrongly refused to examine Randstad Italia’s claims regarding the regularity of the procedure. In line with its previous case law, the Court of Justice reaffirmed that national courts must examine pleas aimed at demonstrating the irregularity of the awarding procedure, if the tenderer’s exclusion is not yet definitive. According to the Court, an exclusion decision is only definitive when it either (1) has been “considered lawful” by an independent and impartial tribunal or (2) can no longer be subject to a review procedure.
Finally, the Court pointed out that the fact that EU law does not require Member States to make provision for the possibility of lodging an appeal before the highest court in the judicial order against such inadmissibility decisions from the highest administrative court, is without prejudice to the right of individuals who may have been harmed by the infringement of their right to an effective remedy as a result of a decision of a court adjudicating at last instance to hold the Member State concerned liable. Therefore, the conditions laid down by EU law to that effect must of course first be satisfied, in particular the condition relating to the sufficiently serious nature of the infringement of that right.
Please contact Peter Teerlinck or Raluca Gherghinaru for further information about this case and/or for general legal advice relating to public procurement law.