Raad van State, XIVe Kamer, 17 January 2025, n. 262.019, Belgium
Article(s) in Directive 2014/24/EU: Art. 1.1, al. 4
Topic: Public procurement – review procedures - Time limit
Member State: B
Court/rev. board: Raad van State
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
During the proceedings before the Council of State, the applicant, in the context of a criticism of the award decision, raised an objection of illegality of the specifications. The question arises as to whether this objection can still be raised in time.
2. FACTS
The Flemish Region, Roads and Traffic Agency of the Province of East Flanders is issuing a public service contract for the conclusion of a framework agreement for incident management on motorways in the province of East Flanders. The contract is part of the FAST project, “Tackling Traffic Jams through Rapid Intervention”.
3. JUDGMENT
During the proceedings before the Council of State, the applicant, in the context of a criticism of the award decision, raised an objection of illegality of the specifications. The question arises as to whether this objection can still be raised in time.
The Council of State ruled in its judgment no. 152.173 of 2 December 2005 that the possibility of immediately lodging an appeal for annulment and an application for suspension against the decision to adopt the specifications does not preclude the unlawfulness alleged by a tenderer in relation to a provision of the specifications from still being invoked in an admissible manner against subsequent decisions in the context of the award procedure. The applicant may therefore invoke the unlawfulness of the specifications in support of its appeal against the contested decision, even if it has not challenged the decision to adopt the specifications as such before the Council of State.
This judgment cannot be challenged on the basis of the judgment of the Court of Justice of 2 March 2015 in the eVigilo case, C-538/13. In that judgment, the Court held that ‘the third subparagraph of Article 1(1) of Directive 89/665, as amended by Directive 2007/66, and Articles 2, 44(1) and 53(1)(a) of Directive 2004/18 […] must be interpreted as meaning that a reasonably informed and normally diligent tenderer who was only able to understand the tender conditions when the contracting authority, after evaluating the tenders, provided full information on the reasons for its decision, must have the right, after the expiry of the period laid down in national law, to bring an action challenging the legality of the procurement procedure‘ and that ’that right of appeal may be exercised until the expiry of the period for appealing against the decision to award the contract”.
The Court of Justice thus does not require tenderers to immediately seek a remedy against an allegedly unlawful contractual provision, nor does it preclude such unlawfulness from being relied upon subsequently against the final decision.
The objective of ensuring that economic operators have an effective and genuine judicial remedy does not mean that the fact that contracting authorities must be able to complete their procedures must be disregarded: in that sense the Court of Justice of the European Union ruled in paragraph 51 of the aforementioned judgment eVigilo that ‘the full achievement of the objective of Directive 89/665 (…) would be jeopardised if the candidates and tenderers were free, at any stage of the tendering procedure, to raise objections to the rules governing the award of contracts, which would oblige the contracting authority to restart the entire procedure in order to remedy those infringements’. The same concern regarding the full achievement of the objective pursued by the aforementioned Directive 89/665, preclude contracting authorities from unnecessarily exposing themselves to the risk of judicial proceedings which are premature in the sense that the economic operators concerned would bring them solely out of fear that an objection regarding the illegality of the contract documents, which is only raised after the award decision has been taken, and therefore at a stage when they can, with sufficient knowledge of the facts, assess whether it is appropriate to initiate judicial proceedings, would be declared inadmissible on the grounds of being out of time.
This duty of care and duty to act lawfully incumbent on the public authority cannot be translated in practice into a duty of care on the part of the person seeking justice (see Constitutional Court 11 April 2023, No. 59/2023, point B 17.2,).
