Orizzonte Salute, an Italian association providing public and private bodies with nursing services, challenged before the Regional Administrative Tribunal of Trento (the TAR Trento) the reiterated awards, by the competent local authority (the Azienda Pubblica di Servizi alla persona San Valentino Città di Levico Terme, hereafter, the “Azienda”), of the management of nursing services to a competitor. Orizzonte Salute paid a standard court fee of EUR 650, namely the cost of instituting ordinary administrative proceedings. However, by decision of 5 June 2013, the Secretary General of the TAR Trento asked Orizzonte Salute to make an additional payment since, on account of its supplementary pleas, the dispute related to public procurement and it was therefore necessary to meet the standard fee for such cases, which amounted to EUR 2,000.
By a new action introduced on 2 July 2013, Orizzonte Salute challenged the above?mentioned decision before the TAR Trento, which acknowledged that court fees relating to public procurement proceedings were considerably higher than the amounts to be paid for administrative disputes in ordinary proceedings. Moreover, the same national legislation provided that the (same) fee should be paid not only upon registration of the application initiating proceedings, but also for cross?claims and supplementary pleas introducing new claims in the course of proceedings.
The TAR Trento considered that the national legislation could dissuade economic operators from bringing proceedings, thus posing problems of compatibility with EU law. In effect, the overall value of the public contract at issue was higher than the thresholds beyond which the award of a contract must be made in accordance with the rules laid down in Directive 89/665. According to the TAR Trento, there were doubts as regards the compatibility with the principles of effectiveness, expediency, non?discrimination and availability laid down by Article 1 of that Directive. Accordingly, it decided to stay the proceedings and to ask to the CJEU whether Article 1 of Directive 89/665 precludes national legislation requiring, when actions are brought in administrative judicial proceedings relating to public procurement, the payment of higher court fees than in other matters.
At the outset, the CJEU pointed out that Directive 89/665 does not contain any provision relating specifically to the court fees to be paid by natural or legal persons when they bring an action against a decision on the award of a public contract. Therefore, in line with its established case law on national procedural autonomy, the CJEU affirmed that it is up to each Member State to lay down the detailed rules governing actions for safeguarding rights that individuals derive from EU law. However, these rules must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness). Accordingly, the CJEU moved on to considering whether legislation such as that at issue is consistent with the abovementioned principles.
The CJEU considered, first of all, the aspect relating to the high fees.
As regards the principle of effectiveness, the fact that the standard fee to be paid amounted to a maximum of 2% of the value of the contract led the Court to affirm that this does not render practically impossible or excessively difficult the exercise of rights conferred by EU public procurement law. The Court noted, in particular, that undertakings need to have an appropriate economic and financial capacity in order to participate to public procurement proceedings. Moreover, since the fee was imposed without distinction with regard to all individuals intending to bring an action against a decision adopted by contracting authorities, the CJEU concluded that the national legislation concerned did not give rise to discrimination between operators practising in the same sector of activity.
As regards the principle of equivalence, according to the Court, the fact that, in the context of procedures for the award of public contracts, the standard fee to be paid is larger than the amounts to be paid for administrative disputes subject to ordinary proceedings and the court fees charged in civil proceedings cannot in itself demonstrate an infringement of the principle at hand.
Concerning the issue of the cumulation of the standard fees, the CJEU observed that, insofar as it contributes to the proper functioning of the judicial system, the levying of multiple and cumulative court fees within the same administrative judicial proceedings is not, in principle, contrary to
Article 1 of Directive 89/665, read in the light of Article 47 CFR. In effect, it can act as a deterrent with respect to the submission of claims which are manifestly unfounded or which seek only to delay the proceedings. This is all the more true if the subject?matter of the actions or supplementary pleas are in fact separate and amount to a significant enlargement of the subject-matter of the dispute that is already pending. By contrast - the Court also observed ? if this is not the case, the levying of multiple and cumulative court fees is contrary to the availability of legal remedies ensured by Directive 89/665 and to the principle of effectiveness.
The CJEU therefore concluded that the national court should establish whether the different pleas concerned separate subject?matter and, if this was not the case, the applicant in the main proceedings should be relieved from the obligation to pay cumulative court fees.