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Dolores Utrilla
9th September 2021
Human Rights Internal Market Justice & Litigation

AG Hogan’s Opinion on the procedural limits on the interaction between national supreme courts in EU law-related cases

Advocate General (AG) Hogan has delivered his Opinion in the Grand Chamber case Randstad Italia (C-497/20), advising the Court of Justice on how to respond to preliminary questions submitted by the Italian Court of Cassation on whether a Member State is obliged to provide a further right of appeal where an appellate court has itself misinterpreted or misapplied EU law, and on what other remedies are available to the injured party in the event that there is no such right of appeal.

The case stems from a dispute between Randstad Italia SpA and the Local Health Agency of the Valle d’Aosta Region (Italy) concerning the exclusion of Randstad from a procedure for the award of a public contract and the regularity of that procedure, on which the Italian Council of State (Consiglio di Stato) ruled, and in respect of which an appeal has been lodged before the Italian Court of Cassation. The particularity of the dispute lies in the fact that the Court of Cassation has doubts about the extent of its jurisdiction with regard to appeals against judgments of the Council of State (which in turn seems to have erred in law when applying the CJEU’s case law to the dispute at issue), as recently specified by the Italian Constitutional Court (Corte Costituzionale).

Against this background, the questions referred to the Court of Justice concern, on the one hand, the scope Article 1 of Directive 89/665, which imposes on Member States the obligation to ensure effective review of public contracts where, in the context of an action for annulment of the decision awarding a public contract, the successful tenderer brings a counterclaim against the unsuccessful tenderer. On the other hand, the referring court asks about the interpretation of Articles 4(3) and 19(1) TEU and of Articles 2(1) and (2) and 267 TFEU, read in the light of Article 47 of the Charter.

In his Opinion today, AG Hogan notes that the preliminary reference implicitly involves a call for the Court of Justice to arbitrate a conflict between the three Italian supreme courts, and he proposes that the Court rule that Article 1(1) and (3) of Council Directive 89/665, read in the light of Article 47 of the Charter, does not preclude a rule such as the eighth paragraph of Article 111 of the Italian Constitution (as interpreted in Judgment No 6/2018), according to which an appeal in cassation for reasons of jurisdiction is not available for the purpose of challenging judgments in which the court of second degree has applied interpretative practices developed nationally but in conflict with judgments of the Court of Justice, in sectors governed by EU law. In the AG’s view, the solution in respect of the misapplication of EU law by a court of last instance must be found in other procedural forms, such as an action for failure to fulfil obligations pursuant to Article 258 TFEU, or the possibility of holding the State liable in order to obtain legal protection of the rights of individuals recognised by EU law.

Moreover, AG Hogan proposes that the Court of Justice rule that Article 4(3) TEU, Article 19(1) TEU, and Article 267 TFEU, read in the light of Article 47 of the Charter, do not preclude the rules relating to appeals in cassation for reasons of jurisdiction from being interpreted and applied in such a manner as to prevent an appeal in cassation before the Combined Chambers of the Corte di Cassazione from being brought for the purpose of challenging a judgment in which the Consiglio di Stato refrains, without reason, from making a reference to the Court of Justice for a preliminary ruling.

In the alternative, the AG proposes that the Court of Justice rule that its Fastweb (C-100/12) and Lombardi (C-333/18) case law regarding the interpretation of Article 1(1) and (3) and Article 2(1) of Directive 89/665 applies to the case of the main proceedings where the decision to exclude the unsuccessful tenderer had not been confirmed by a decision which had acquired the force of res judicata when the court hearing the review of the contract award decision gave its decision and where that tenderer had put forward a plea which could lead the contracting authority to have to launch a new procedure.

The Opinion is available here.

An comment on the Opinion by Giulia Gentile will be published soon on EU Law Live.


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