| | 31989L0665: rc1-2.4Probable consequences    
| 31989L0665 - Remedies Classic (1st generation) | Article 2.4 | 4. The Member States may provide that when considering whether to order interim measures the body responsible may take into account the probable consequences of the measures for all interests likely to be harmed, as well as the public interest, and may decide not to
grant such measures where their negative consequences could exceed their benefits. A decision not to grant interim measures shall not prejudice any other claim of the person seeking these measures. | | 31992L0013 - Remedies Utilities (1st generation) | Article 2.4 | | 4. The Member States may provide that, when considering whether to order interim measures, the body responsible may take into account the probable consequences of the measures for all interests likely to be harmed, as well as the public interest, and may decide not to grant such measures where their negative consequences could exceed their benefits. A decision no to grant interim measures shall not prejudice any other claim of the person seeking these measures. |
| Case | Pte | Ref | Text | C-424/01-S
CS Communications | 26-33 | RC1-2.4 | 26 By its two questions, which must be considered together, the national tribunal asks, essentially, whether it follows from Directive 89/665, and more particularly from Article 2(4), that when a body responsible for review procedures for the award of public contracts determines an application for interim relief, it is bound or, as the case may be, authorised to take account of the prospects of success of an application for annulment of the decision of the contracting authority based on the unlawfulness of that decision.
27 Taking the view that the answer to those questions did not admit of any reasonable doubt the Court, in accordance with Article 104(3) of the Rules of Procedure, informed the national tribunal that it intended to give judgment by reasoned order and invited the interested parties referred to in Article 23 of the EC Statute of the Court of Justice to submit observations on the matter.
28 Only the Commission submitted its observations within the time-limit. While it reiterated its doubts as to the admissibility of the questions referred, it expressed its agreement with the decision of the Court to give judgment by reasoned order.
29 It must be observed that the prospects of success of the substantive action are not mentioned among the factors which the body responsible for review procedures for the award of public contracts must or may take account of when it determines an application for interim measures under Article 2(1)(a) of Directive 89/665, but that provision does not preclude them from being considered. Article 2(4) of the directive merely states that the Member States may provide that when considering whether to order interim measures, the body responsible may take into account the probable consequences of the measures for all interests likely to be harmed, as well as the public interest, and may decide not to grant such measures where their negative consequences could exceed their benefits.
30 In the absence of specific Community rules governing the matter, it is therefore for the domestic legal system of each Member State to determine the rules governing the adoption of interim measures by the bodies responsible for review procedures for the award of public contracts, taking into account the purpose of Directive 89/665, which is to ensure that decisions taken by the contracting authority may be reviewed effectively and as rapidly as possible if there has been an infringement of Community law in the field of public procurement or of the national rules implementing that law.
31 However, according to settled case-law the Member States must ensure that the relevant national rules are not less favourable than those governing similar domestic actions (the principle of equivalence) and that they do not make it practically impossible or excessively difficult to exercise rights conferred by Community law (the principle of effectiveness) (see in particular to that effect Case C-92/00 HI [2002] ECR I-5553, paragraph 67, Case C-62/00 Marks &Spencer [2002] ECR I-6325, paragraph 34, and Case C-255/00 Grundig Italiana [2002] ECR I-8003, paragraph 33).
32 As regards the latter principle, it is plain that the fact that a national provision states that the body responsible for review procedures for public procurement is bound or, as the case may be, authorised to take account of the prospects of success of an application for a decision of a contracting authority to be set aside on the ground that it is unlawful is not such as to undermine the effectiveness of the rights conferred by the Community directives on the coordination of the procedures for the award of public contracts and, in particular, of the right to effective and rapid remedies laid down by Directive 89/665, because such a national provision merely provides for the consideration, in each particular case, of the degree of likelihood of an alleged infringement of Community law in the field of public procurement or the national rules implementing that law.
33 Therefore, the answer to the questions referred is that Article 2 of Directive 89/665 must be interpreted as meaning that it does not preclude the Member States from providing that when a body responsible for review procedures for the award of public contracts decides an application for interim measures, it is bound or authorised to take account of the prospects of success of an application for a decision of a contracting authority to be set aside on the ground that it is unlawful, so long as the national rules thus governing the adoption of those interim measures are not less favourable that those governing similar domestic actions and do not make it practically impossible or excessively difficult to exercise the rights conferred by Community law. |
|
|
