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2016-4 Reports of Cases before the Court of Justice and the Court of First Instance 1 (2016)

handle is hein.intyb/rcbjcofi0379 and id is 1 raw text is: VRw Reports of Cases Case C-689/13 Puligienica Facility Esco SpA (PFE) V Airgest SpA (Request for a preliminary ruling from the Consiglio di giustizia amministrativa per la Regione siciliana) (Reference for a preliminary ruling - Public service contracts - Directive 89/665/EEC - Article 1(1) and (3) - Review procedures - Application for annulment of the decision awarding a public contract by a tenderer whose bid was not successful - Counterclaim brought by the successful tenderer - Rule derived from national case-law under which the counterclaim must be examined first and, if the counterclaim is well founded, the main action must be dismissed as inadmissible without any examination of the merits - Whether compatible with EU law - Article 267 TFEU - Principle of the primacy of EU law - Principle of law stated by decision of the plenary session of the supreme administrative court of a Member State - National legislation which provides that that decision is binding on the chambers of that court - Obligation on the part of the chamber required to adjudicate on a question of EU law to refer that question to the plenary session if it disagrees with the decision of the plenary session - Whether the chamber has a discretion or is under an obligation to request a preliminary ruling from the Court of Justice) Summary - Judgment of the Court (Grand Chamber), 5 April 2016 1. Approximation of laws - Review procedures in respect of the award of public supply and public works contracts - Directive 89/665 - Member States' duty to provide for a review procedure - Access to review procedures - National procedural rules under which the action brought by a tenderer for the exclusion of another tenderer is dismissed as inadmissible as the counterclaim lodged by the other tenderer was examined by the court first - Not permissible (Council Directive 89/665, as amended by Directive 2007/66, Art. 1(1) and (3)) 2. Questions referred for a preliminary ruling - Reference to the Court - Jurisdiction of national courts - Scope - National legislation requiring a chamber of a national court offinal instance to refer a matter to the plenary session of that court if it disagrees with a position adopted by the plenary session - Impossible for the court properly seised in accordance with national law to request a preliminary ruling from the Court of Justice - Not permissible (Art. 267 TFEU) 3. Questions referred for a preliminary ruling - Jurisdiction of the national court - Application of provisions interpreted by the Court - National legislation which prevents the courts from disregarding national provisions that conflict with EU law - Not permissible (Art. 267 TFEU) ECLI:EU:C:2016:199 1

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