Provisional text
JUDGMENT OF THE COURT (Second Chamber)
17 September 2026 ( * )
[para_4]( Reference for a preliminary ruling – Public procurement – Procedures for review of the award of public supply and public works contracts – Directive 89/665/EEC – Article 2(3) and (5) – Precontractual remedy – Guarantee of an effective remedy – Automatic suspensive effect on procurement procedures – Provisional lifting of suspensive effects – Role of the national court deciding on interim measures – Article 47 of the Charter of Fundamental Rights of the European Union – Right to an effective remedy – Interim judicial protection )
[para_5]In Joined Cases C‑266/25 and C‑267/25,
[para_6]TWO REQUESTS for a preliminary ruling under Article 267 TFEU from the Tribunal Administrativo e Fiscal do Porto (Administrative and Tax Court, Porto, Portugal), made by decisions of 11 and 14 March 2025, received at the Court on 8 April 2025, in the proceedings
[para_7]I-Sete – Inovação, Soluções Económicas e Tecnologias Ecológicas, Lda.
[para_8]v
[para_9]EDIA – Empresa de Desenvolvimento e Infra-estruturas do Alqueva, S. A.,
[para_10]intervening parties:
[para_11]DST Solar, S. A. (C‑266/25),
[para_12]Domingos da Silva Teixeira, S. A. (C‑266/25),
[para_13]Greenvolt Next Portugal, Lda. (C‑267/25),
[para_14]THE COURT (Second Chamber),
[para_15]composed of K. Jürimäe, President of the Chamber, K. Lenaerts, President of the Court, acting as Judge of the Second Chamber, F. Schalin, M. Gavalec (Rapporteur) and Z. Csehi, Judges,
[para_16]Advocate General: M. Campos Sánchez-Bordona,
[para_17]Registrar: L. Carrasco Marco, Administrator,
[para_18]having regard to the written procedure and further to the hearing on 5 March 2026,
[para_19]after considering the observations submitted on behalf of:
[para_20]– I-Sete – Inovação, Soluções Económicas e Tecnologias Ecológicas, Lda., by T. Faustino Moreira, R. Maia Magalhães and R. Pinto, advogados,
[para_21]– EDIA – Empresa de Desenvolvimento e Infra-estruturas do Alqueva, S. A., by M. Costa Pinto and J. da Silva Miguel, advogados,
[para_22]– the Portuguese Government, by P. Barros da Costa, L. Ferro da Costa, A. Pimenta, M.J. Ramos and V. Pinto da Rocha, acting as Agents,
[para_23]– the Czech Government, by L. Halajová, M. Smolek and J. Vláčil, acting as Agents,
[para_24]– the European Commission, by A. Biolan, M. Teles Romão and G. Wils, acting as Agents,
[para_25]after hearing the Opinion of the Advocate General at the sitting on 7 May 2026,
[para_26]gives the following
Judgment
[para_28]1 These requests for a preliminary ruling concern the interpretation of Article 2d 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 2014/23/ΕU of the European Parliament and of the Council of 26 February 2014 (OJ 2014 L 94, p. 1) (‘Directive 89/665’).
[para_29]2 The requests, worded similarly, have been made in two sets of proceedings between I-Sete – Inovação, Soluções Económicas e Tecnologias Ecológicas, Lda. (‘I-Sete’) and EDIA – Empresa de Desenvolvimento e Infra-estruturas do Alqueva, S. A. (‘EDIA’) concerning, in Case C‑266/25, the award of a public contract for the construction of a floating photovoltaic power plant at the Álamos pumping station (Portugal) and, in Case C‑267/25, a public contract for the construction of a floating photovoltaic power plant at the S. Pedro (Portugal) and S. Matias (Portugal) pumping stations.
Legal context
European Union law
The Charter
[para_33]3 The first and second paragraphs of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) provide:
[para_34]‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
[para_35]Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.’
4 Article 52(1) of the Charter is worded as follows:
[para_37]‘Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.’
Directive 89/665
[para_39]5 The fifth recital of Directive 89/665 states, ‘Whereas, since procedures for the award of public contracts are of such short duration, competent review bodies must, among other things, be authorized to take interim measures aimed at suspending such a procedure or the implementation of any decisions which may be taken by the contracting authority; whereas the short duration of the procedures means that the aforementioned infringements need to be dealt with urgently’.
[para_40]6 Article 1 of that directive, entitled ‘Scope and availability of review procedures’, provides:
[para_41]‘1. …
[para_42]Member States shall take the measures necessary to ensure that, as regards contracts falling within the scope of Directive 2014/24/EU [of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65)] or Directive [2014/23], decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in Articles 2 to 2f of this Directive, on the grounds that such decisions have infringed Union law in the field of public procurement or national rules transposing that law.
[para_43]…
[para_44]3. Member States shall ensure that the review procedures are available, under detailed rules which the Member States may establish, at least to any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement.
[para_45]…
[para_46]5. Member States may require that the person concerned first seek review with the contracting authority. In that case, Member States shall ensure that the submission of such an application for review results in immediate suspension of the possibility to conclude the contract.
[para_47]…’
[para_48]7 Article 2 of that directive, entitled ‘Requirements for review procedures’, states:
[para_49]‘1. Member States shall ensure that the measures taken concerning the review procedures specified in Article 1 include provision for powers to:
[para_50](a) take, at the earliest opportunity and by way of interlocutory procedures, interim measures with the aim of correcting the alleged infringement or preventing further damage to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a public contract or the implementation of any decision taken by the contracting authority;
[para_51]…
[para_52]3. When a body of first instance, which is independent of the contracting authority, reviews a contract award decision, Member States shall ensure that the contracting authority cannot conclude the contract before the [body responsible for review procedures] has made a decision on the application either for interim measures or for review. The suspension shall end no earlier than the expiry of the standstill period referred to in Article 2a(2) and Article 2d(4) and (5).
[para_53]4. Except where provided for in paragraph 3 and Article 1(5), review procedures need not necessarily have an automatic suspensive effect on the contract award procedures to which they relate.
[para_54]5. Member States may provide that the body responsible for review procedures may take into account the probable consequences of interim measures for all interests likely to be harmed, as well as the public interest, and may decide not to grant such measures when their negative consequences could exceed their benefits.
[para_55]A decision not to grant interim measures shall not prejudice any other claim of the person seeking such measures.
[para_56]…’
8 Article 2d of that directive, entitled ‘Ineffectiveness’, provides:
[para_58]‘1. Member States shall ensure that a contract is considered ineffective by a review body independent of the contracting authority or that its ineffectiveness is the result of a decision of such a review body in any of the following cases:
[para_59]…
[para_60](b) in case of an infringement of Article 1(5), Article 2(3) or Article 2a(2) of this Directive, if this infringement has deprived the tenderer applying for review of the possibility to pursue pre-contractual remedies where such an infringement is combined with an infringement of Directive [2014/24] or Directive [2014/23], if that infringement has affected the chances of the tenderer applying for a review to obtain the contract;
[para_61]…
[para_62]3. Member States may provide that the review body independent of the contracting authority may not consider a contract ineffective, even though it has been awarded illegally on the grounds mentioned in paragraph 1, if the review body finds, after having examined all relevant aspects, that overriding reasons relating to a general interest require that the effects of the contract should be maintained. In this case, Member States shall provide for alternative penalties within the meaning of Article 2e(2), which shall be applied instead.
[para_63]Economic interests in the effectiveness of the contract may only be considered as overriding reasons if in exceptional circumstances ineffectiveness would lead to disproportionate consequences.
[para_64]However, economic interests directly linked to the contract concerned shall not constitute overriding reasons relating to a general interest. Economic interests directly linked to the contract include, inter alia, the costs resulting from the delay in the execution of the contract, the costs resulting from the launching of a new procurement procedure, the costs resulting from the change of the economic operator performing the contract and the costs of legal obligations resulting from the ineffectiveness.
[para_65]…’
Directive 2007/66
[para_67]9 Recitals 3, 4 and 36 of Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (OJ 2007 L 335, p. 31) state:
[para_68]‘(3) Consultations of the interested parties and the case-law of the Court of Justice have revealed a certain number of weaknesses in the review mechanisms in the Member States. As a result of these weaknesses, the mechanisms established by Directives [89/665] and [Council Directive] 92/13/EEC [of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1992 L 76, p. 14)] do not always make it possible to ensure compliance with Community law, especially at a time when infringements can still be corrected. … Directives [89/665] and [92/13] should therefore be amended by adding the essential clarifications which will allow the results intended by the Community legislature to be attained.
[para_69](4) The weaknesses which were noted include in particular the absence of a period allowing an effective review between the decision to award a contract and the conclusion of the contract in question. This sometimes results in contracting authorities and contracting entities who wish to make irreversible the consequences of the disputed award decision proceeding very quickly to the signature of the contract. In order to remedy this weakness, which is a serious obstacle to effective judicial protection for the tenderers concerned, namely those tenderers who have not yet been definitively excluded, it is necessary to provide for a minimum standstill period during which the conclusion of the contract in question is suspended, irrespective of whether conclusion occurs at the time of signature of the contract or not.
[para_70]…
[para_71](36) This Directive respects fundamental rights and observes the principles recognised in particular by [the Charter]. In particular, this Directive seeks to ensure full respect for the right to an effective remedy and to a fair hearing, in accordance with the first and second subparagraphs of Article 47 of the Charter.’
Portuguese law
[para_73]10 The Código dos Contratos Públicos (Public Procurement Code), as amended by Lei n.° 43/2024 que altera a Lei n.° 30/2021, de 21 de maio, que aprova medidas Especiais de contratação pública (Law No 43/2024 amending Law No 30/2021 of 21 May approving special measures in the field of public procurement) of 2 December 2024 ( Diário da República , Series I, No 233, of 2 December 2024; ‘the Public Procurement Code’), provides in Article 25-A, entitled ‘Exceptional arrangements for urgent administrative actions in pre-contractual disputes’:
[para_74]‘1. Urgent administrative actions concerning public procurement matters, seeking to challenge acts awarding tenders in respect of procedures for the performance of projects financed or co-financed by European funds, provided that those actions are brought within 10 working days of the notification of the award to all tenderers, shall automatically suspend the effects of the contested act.
[para_75]2. After the expiry of 10 working days from notification of the award to all tenderers, the defendant may request that a court, without first hearing the opposing party, provisionally lift the automatic suspensive effect, while including summary documentary evidence.
[para_76]3. The automatic suspensive effect shall be provisionally lifted when the court summarily determines, within a maximum period of 48 hours, that the following cumulative conditions have been met:
[para_77](a) the period of 10 working days from the notification of the award decision to all tenderers has expired;
[para_78](b) there is a risk of a loss of funding in a contract intended for the performance of a project financed or co-financed by European funds.
[para_79]4. For the purposes of point (b) of the preceding paragraph, there is a presumed risk of a loss of funding when there is a connection between the subject matter of the contract and the performance of projects financed or co-financed by European funds; for that purpose, it is sufficient for the requesting party to attach a document proving the decision to finance the project in which the contract is included.
[para_80]5. In the event that the suspensive effect is provisionally lifted, the applicant shall be notified immediately and shall have a period of five days to request, on a reasoned basis, that the automatic suspensive effect be maintained until the proceedings are concluded, on the ground that the requirements referred to in paragraph 3 have not been met.
[para_81]6. If the applicant requests that the automatic suspensive effect be maintained, the defendant shall be invited, within seven days, to supplement the grounds of the request already made pursuant to paragraph 2, so as to include in it a weighing up of the public and private interests at stake and the damage that would result from maintaining the suspensive effect.
[para_82]7. The applicant shall have seven days to respond to the request that the suspensive effect be lifted referred to in the preceding paragraph, followed, without further pleadings and no later than seven days after the completion of the absolutely essential measures of enquiry, by the court’s ruling on the proceedings.
[para_83]8. The suspensive effect shall be lifted when, after all the public and private interests at stake have been duly weighed up, the damage that would result from maintaining it is shown to be greater than that which could result from lifting it.
[para_84]…’
[para_85]The main proceedings, the questions referred for a preliminary ruling and the procedure before the Court of Justice
[para_86]11 I-Sete brought proceedings before the Tribunal Administrativo e Fiscal do Porto (Administrative and Tax Court, Porto, Portugal), which is the referring court, to challenge two decisions taken on 23 December 2024 by EDIA, each awarding awarded a contract for the construction of a floating photovoltaic power plant for a pumping station to competing undertakings.
[para_87]12 EDIA states that it is being provided with funds from the Council of Europe Development Bank for the performance of those two contracts, amounting in total to EUR 45 million, provided, however, that the contracts are completed by 31 December 2025 at the latest. Consequently, if the automatic suspensive effect granted in respect of the two actions in the main proceedings under Article 25-A(1) of the Public Procurement Code were not lifted, EDIA would be unable to perform the contracts within the prescribed time limits, with the result that it could lose that financing from European funds.
[para_88]13 The referring court observes that Article 2d of Directive 89/665 explicitly requires, in the context of a review procedure against a contracting authority’s decision, first, a prior inter partes procedure and, second, an assessment on the merits of that action by the court with jurisdiction. Nevertheless, it enquires whether that provision may be interpreted as meaning that, in the specific situation in which a contracting authority risks the loss of European funding, it may be possible for national legislation, such as Article 25-A of the Public Procurement Code, to lift the automatic suspensive effect of such an action in less stringent conditions, namely, without any prior inter partes procedure and without any assessment on the merits, solely in order to ensure that projects financed by European funds are performed on schedule.
[para_89]14 In those circumstances, the Tribunal Administrativo e Fiscal do Porto (Administrative and Tax Court, Porto) decided to stay the proceedings and to refer the following questions, which are worded identically in Cases C‑266/25 and C‑267/25, to the Court of Justice for a preliminary ruling:
[para_90]‘(1) Does the provisional lifting of the automatic suspensive effect, without hearing the opposing party, enshrined in Article 25-A(2) and (3) of [the Public Procurement Code], comply with Article 2d of Directive [89/665], when the latter is interpreted as meaning that the lifting of such an effect always depends on hearing the opposing party and a prior merit-based assessment of all aspects for the purposes of the decision to be taken?
[para_91](2) Must Article 2d of [Directive 89/665] be interpreted as not precluding national legislation that makes the economic interest in a possible loss of European funds, on account of a delay in the implementation of a funded project, an overriding reason relating to the general interest justifying the lifting of automatic suspensive effect? Is a mere economic loss a disproportionate consequence, taking into account the interests intended to be safeguarded by the operation of the automatic suspensive effect, compatible with the provisions of the second subparagraph of Article 2d(3)?’
[para_92]15 By decision of the President of the Court of 22 May 2025, Cases C‑266/25 and C‑267/25 were joined for the purposes of the written and oral procedure and the judgment.
Consideration of the questions referred
[para_94]16 In the procedure provided for in Article 267 TFEU, which provides for cooperation between national courts and the Court, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to decide the case before it. To that end, the Court may find it necessary to take account of provisions of EU law to which the national court has not referred in its questions. In that regard, it is for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, the points of EU law which require interpretation, having regard to the subject matter of the dispute (see, to that effect, judgments of 12 December 1990, SARPP , C‑241/89, EU:C:1990:459, paragraph 8, and of 26 September 2024, Luxone and Sofein , C‑403/23 and C‑404/23, EU:C:2024:805, paragraph 47).
[para_95]17 In the present case, the referring court, by its two questions, asks the Court to interpret Article 2d of Directive 89/665. That article, in that it governs situations in which a contract is declared ineffective, relates, however, to contractual disputes since it is based on the assumption that a public contract has already been concluded.
[para_96]18 However, as the parties to the main proceedings confirmed at the hearing before the Court, no contract has been concluded in the disputes in the main proceedings. Indeed, I-Sete has challenged the two decisions to award the public contracts at issue in the main proceedings.
[para_97]19 The disputes in the main proceedings therefore come within the context of pre-contractual proceedings, such that they are not covered by Article 2d of Directive 89/665 but by Article 2 thereof.
[para_98]20 In those circumstances, it must be held that, by its questions, which should be examined together, the referring court asks, in essence, whether Article 2(3) to (5) of Directive 89/665, read in the light of Article 47 of the Charter, must be interpreted as precluding national legislation which, for the sake of a general interest objective of speed in public procurement procedures, intended to avoid the loss of financing from European funds, requires the national court, on application by the contracting authority, provisionally to lift the automatic suspensive effect of an action against that authority’s decision to award a public contract, without first hearing the unsuccessful tenderer that brought that action and without being able to weigh up all the interests at stake on the merits.
[para_99]21 By those questions, the referring court thus seeks clarification about the role of the national court hearing an application for interim measures in an action challenging a decision to award a public contract in a national regulatory context that has the following characteristics.
[para_100]22 First, it is apparent from Article 25-A(1) of the Public Procurement Code that the bringing of an urgent administrative action against a decision to award a public contract leads to the automatic suspension of the effects of that decision, provided that the action was brought within a period of 10 working days from notification of that award to all the tenderers.
[para_101]23 Second, it follows from Article 25-A(2) to (4) of that code that the defendant, in other words the contracting authority, may obtain the provisional lifting of that automatic suspensive effect if it provides summary evidence establishing (i) the expiry of the period of 10 working days from the notification of the contract award decision to all the tenderers and (ii) the risk of a loss of financing from European funds. Moreover, that risk is assumed where the contracting authority provides a document showing that the contract in question is part of a project benefiting from such financing.
[para_102]24 Third, it follows from Article 25-A(5) of that code that the applicant may oppose an application for a provisional lifting of the automatic suspensive effect of its action only if it establishes, on a reasoned basis, that the abovementioned 10-day period has not expired and/or that the risk of a loss of financing from European funds is unfounded.
[para_103]25 Fourth, according to Article 25-A(6) of that code, if the applicant requests that the automatic suspensive effect be maintained, the defendant is requested to supplement the grounds of its application to lift that suspensive effect by including in it a weighing up of the public and private interests at stake and the damage that would result from maintaining that effect.
[para_104]26 Fifth, after giving the applicant the opportunity to respond, the court deciding on interim measures must lift the suspensive effect if it follows from a weighing up of all the public and private interests at stake that the damage caused by maintaining it would be greater than that which could result from it being lifted.
[para_105]27 In order to enable the referring court to assess whether such rules are compatible with Directive 89/665, it should be observed that Article 1(1) and (3) of that directive, which is intended to protect economic operators against arbitrary behaviour on the part of the contracting authority, is thus designed to reinforce the existence, in all Member States, of effective remedies, which are as rapid as possible, so as to ensure the effective application of the EU rules on public procurement, in particular at a stage where infringements can still be rectified (see, to that effect, judgments of 11 August 1995, Commission v Germany , C‑433/93, EU:C:1995:263, paragraph 23; of 15 September 2016, Star Storage and Others , C‑439/14 and C‑488/14, EU:C:2016:688, paragraph 41; and of 18 January 2024, CROSS Zlín , C‑303/22, EU:C:2024:60, paragraph 60).
[para_106]28 In order to achieve that objective, Article 2(1)(a) of that directive requires Member States to make provision for bodies responsible for review procedures to take, at the earliest opportunity and by way of interlocutory procedures, interim measures with the aim of correcting the alleged infringement or preventing further damage to the interests concerned.
[para_107]29 It also follows from the first sentence of Article 2(3) and from Article 2(4) of Directive 89/665 that an action challenging a decision awarding a public contract must necessarily have automatic suspensive effects on the procurement procedure to which that decision relates. In fact, the contracting authority cannot conclude such a contract until the body responsible for review procedures has ruled either on the application for interim measures or for review.
[para_108]30 Accordingly, the right to apply for interim protection is crucial in the context of a procedure for the award of a public contract. In that regard, the fifth recital of that directive states that the short duration of procedures for the award of public contracts means that infringements of EU public procurement law or of the national rules transposing it need to be dealt with urgently, such that the competent bodies responsible for review procedures must, among other things, be authorised to take interim measures aimed at suspending such a procedure or the implementation of any decisions which may be taken by the contracting authority (judgment of 14 July 2022, EPIC Financial Consulting , C‑274/21 and C‑275/21, EU:C:2022:565, paragraph 90).
[para_109]31 That being said, under Article 2(5) of Directive 89/665, Member States may permit the body responsible for review procedures to take into account the probable consequences of interim measures for all interests likely to be harmed, as well as the public interest, and to decide not to grant such measures when their negative consequences could exceed their benefits.
[para_110]32 As is apparent from recital 36 of Directive 2007/66, both that directive, which amended Articles 1 and 2 of Directive 89/665, and that latter act seek to ensure full respect for the right to an effective remedy and to a fair hearing in accordance with the first and second paragraphs of Article 47 of the Charter. Accordingly, when they set out detailed procedural rules for actions intended to ensure the protection of rights conferred by Directive 89/665 on candidates and tenderers harmed by the decisions of contracting authorities, the Member States must ensure compliance with the right to an effective remedy and to a fair hearing, enshrined in Article 47 of the Charter (judgment of 15 September 2016, Star Storage and Others , C‑439/14 and C‑488/14, EU:C:2016:688, paragraphs 45 and 46).
[para_111]33 In accordance with Article 52(1) of the Charter, the exercise of the right to an effective remedy guaranteed in Article 47 thereof, may be limited, provided that that limitation is provided for by law, that it respects the essence of that right and that it is proportionate, which means that the limitation must be necessary and genuinely meet an objective of general interest recognised by the European Union or the need to protect the rights and freedoms of others.
[para_112]34 In the present case, lifting the automatic suspensive effect of actions relating to the contract award decision provided for in Article 2(3) of Directive 89/665 brings about a limitation of the right to an effective remedy since that lifting impacts the effectiveness of those actions by depriving litigants of the immediate interim protection, referred to in paragraph 30 above, in actions relating to the award of public contracts. That limitation is provided for by law since it flows from Article 25-A(2) to (4) of the Public Procurement Code.
[para_113]35 Furthermore, as the Portuguese Government submitted in its written observations, that limitation pursues an objective of general interest recognised by the European Union. It in fact aims to ensure the swiftness of procurement procedures (see, by analogy, judgment of 18 January 2024, CROSS Zlín , C‑303/22, EU:C:2024:60, paragraph 62) in order to avoid a loss of financing from European funds.
[para_114]36 The adoption of Article 25-A of the Public Procurement Code is thus aimed at ensuring the effectiveness of administrative action so as to ensure the implementation, before 31 December 2025, of projects of strategic importance for national development and thus to retain the financing from European funds which had been allocated to the Portuguese Republic for that purpose, something which, however, the referring court must verify.
[para_115]37 It is thus necessary to assess, first, whether Article 25-A(2) to (4) of the code respects the essence of the right to an effective remedy guaranteed in Article 47 of the Charter and, if so, whether it introduces a proportionate limitation of that right.
[para_116]38 In that regard, as both EDIA and the Portuguese Government acknowledged at the hearing, Article 25-A(2) to (4) of the code in question allows the contracting authority to take advantage of the temporary lifting of the automatic suspensive effect to conclude a public contract.
[para_117]39 However, such a possibility infringes Article 2(3) of Directive 89/665, which prohibits the contracting authority from concluding a contract before the body responsible for review procedures has made a decision on the application either for interim measures or for review.
[para_118]40 Furthermore, under Article 25-A(2) to (4) of the Public Procurement Code, the provisional lifting of the automatic suspensive effect of an action against the contract award decision is made subject to objective conditions which, subject to verification by the referring court, the contracting authority may apparently easily satisfy. It is sufficient for the contracting authority to establish, on the basis of summary evidence, first, that the period of 10 working days from notification of the decision to award the contract to all the tenderers has expired and, second, that there is a risk of a loss of financing from European funds, with that risk being assumed where the contracting authority provides a document showing that the contract in question is part of a project benefiting from such financing.
[para_119]41 In comparison, while it appears to be possible in theory for the applicant to make a reasoned request for the automatic suspensive effect to be maintained pending a decision by the national court on the application for the provisional lifting of that suspension, it must nevertheless demonstrate, in accordance with Article 25-A(5) of that code, that the two objective conditions referred to in Article 25-A(3) are not met, which amounts to imposing the production of a probatio diabolica on that person.
[para_120]42 Furthermore, it appears that the powers of the national court are circumscribed, since, in accordance with Article 25-A(3) of that code, the ‘automatic suspensive effect shall be provisionally lifted when the court summarily determines’ that that 10-day period has expired and that there is a risk of a loss of financing from European funds. As the Advocate General observes in points 32, 38 and 42 of his Opinion, and subject to the checks which the referring court must carry out on that question, the body responsible for review procedures does not enjoy any discretion in deciding at that point in time whether or not to lift the automatic suspension.
[para_121]43 Accordingly, Article 25-A(2) to (4) of the Public Procurement Code introduces a rule which distorts the principle of the automatic suspensive effect of an action against a decision awarding a contract by replacing it with a rule that is the exact opposite, since the automaticity of the initial suspension provided for by Directive 89/665 is replaced by the automaticity of the lifting of that suspension.
[para_122]44 A provision such as Article 25-A(2) to (4) of that code thus runs counter to the objective pursued by the EU legislature, as set out in recitals 3 and 4 of Directive 2007/66, which consists of remedying the weaknesses in the review mechanisms in the Member States, in particular by introducing an effective remedy against the decision to award a contract, by preventing contracting authorities from making the consequences of such a contested decision irreversible by proceeding very quickly to the signature of the public contract.
[para_123]45 Moreover, since the contracting authority may conclude a public contract after it has obtained the provisional lifting of the suspensive effect of an action against a decision awarding such a contract, the applicant has no guarantee that it will be able to benefit from the organisation of inter partes argument on the merits, as provided for in Article 25-A(6) to (8) of the Public Procurement Code. Such argument is supposed to relate in particular to the weighing up of the public and private interests at stake in order to determine whether the damage resulting from the maintenance of the suspensive effect of the action is shown to be greater than that which could result from lifting it.
[para_124]46 However, the right to an effective remedy, as provided by Article 2(3) to (5) of Directive 89/665, read in the light of Article 47 of the Charter, requires that the court hearing the application for interim measures be able to carry out such a weighing up of the interests raised before it. In contrast with the intervention of the court hearing the substance, that of the court hearing an application for interim measures is not designed to rule definitively on the claims presented to it but to protect provisionally the interests at stake, possibly by balancing them (see, to that effect, judgment of 9 December 2010, Combinatie Spijker Infrabouw-De Jonge Konstruktie and Others , C‑568/08, EU:C:2010:751, paragraph 77).
[para_125]47 Furthermore, having regard to Article 2(1)(a) of Directive 89/665, the power to weigh up all the interests involved must be considered as being in the remit of the court hearing the application for interim measures. Consequently, that court cannot be bound by national legislation which would take its place in an abstract weighing up of those interests with final effect.
[para_126]48 That interpretation is supported by Article 2(5) of Directive 89/665, which provides that the body responsible for review procedures may take into account the probable consequences of interim measures for all interests likely to be harmed, as well as the public interest, and may decide not to grant such interim measures when their negative consequences could exceed their benefits. Article 2(5) is the concrete expression, in the field of public procurement, of Article 47 of the Charter and highlights the need for the court hearing the application for interim measures to carry out a specific assessment when weighing up all the interests at stake. Article 2(5) seeks thereby to reconcile the interests of the unsuccessful tenderer with those of the contracting authority and the successful tenderer.
[para_127]49 As regards the legislation at issue in the main proceedings, the Portuguese Government stated in its written observations that it is apparent from the explanatory notes to the draft of Law No 20/XVI/1, adopted and subsequently published as Law No 43/2024, that the Portuguese legislature intended, by introducing Article 25-A of the Public Procurement Code, to reduce ‘the risk of a loss of funds that are vital for the performance of contracts [financed by the recovery and resilience plan] and which contracting authorities do not have’.
[para_128]50 In that context, Article 25-A(2) to (4) of the Public Procurement Code thus appears to assume or, at the very least, to imply that the weighing up of the public and private interests at stake must ordinarily favour the contracting authority, so that the Portuguese Republic can retain the financing provided by means of European funds, the payment of which was conditional on the performance of the contracts at issue by 31 December 2025 at the latest, something which, however, the referring court must ascertain.
[para_129]51 As the Advocate General stated, in essence, in points 66, 68 and 69 of his Opinion in the present case, it is vital for the body responsible for review procedures to have the power to weigh up the interests at stake, without the risk of losing financing from European funds being the sole ground that justifies lifting the suspension of the effects of the contract award decision. That risk cannot by itself constitute an overriding reason in the public interest which systematically tips the balance of interests in favour of the contracting authority. Providing such paramount protection to the public interest is likely to undermine the objectives of Directive 89/665 since it could lead to public contracts that have European funding being awarded unlawfully, all while benefiting, in spite of that, from a lifting of the automatic suspensive effect of actions relating to the decision to award them, which, having regard to the fact that the effects of such an award are potentially irreversible, is liable to inflict irreparable damage on the interests at stake.
[para_130]52 It follows that Article 25-A(2) to (4) of the Public Procurement Code undermines the essence of the right to an effective remedy guaranteed in Article 47 of the Charter in that it prevents the court hearing an application for interim measures from actually weighing up, on the merits and following inter parties argument, the interests at stake.
[para_131]53 In the light of the foregoing considerations, the answer to the questions referred is that Article 2(3) to (5) of Directive 89/665, read in the light of Article 47 of the Charter, must be interpreted as precluding national legislation which, for the sake of a general interest objective of speed in public procurement procedures, intended to avoid the loss of financing from European funds, requires the national court, on application by the contracting authority, provisionally to lift the automatic suspensive effect of an action against that authority’s decision to award a public contract, without first hearing the unsuccessful tenderer that brought that action and without being able to weigh up all the interests at stake on the merits.
Costs
[para_133]54 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Second Chamber) hereby rules:
[para_135]Article 2(3) to (5) 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, as amended by Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union,
[para_136]must be interpreted as meaning that it precludes national legislation which, for the sake of a general interest objective of speed in public procurement procedures, intended to avoid the loss of financing from European funds, requires the national court, on application by the contracting authority, provisionally to lift the automatic suspensive effect of an action against that authority’s decision to award a public contract, without first hearing the unsuccessful tenderer that brought that action and without being able to weigh up all the interests at stake on the merits.
[para_137][Signatures]
[para_138]* Language of the case: Portuguese.