JUDGMENT OF THE COURT (Grand Chamber)

6 October 2021 ( *1 ) ( i )

(Reference for a preliminary ruling – Article 267 TFEU – Scope of the obligation on national courts or tribunals of last instance to make a reference for a preliminary ruling – Exceptions to that obligation – Criteria – Question on the interpretation of EU law raised by the parties to the national proceedings after the Court has given a preliminary ruling in those proceedings – Failure to state the reasons justifying the need for an answer to the questions referred for a preliminary ruling – Partial inadmissibility of the request for a preliminary ruling)

In Case C‑561/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Council of State, Italy), made by decision of 15 November 2018, received at the Court on 23 July 2019, in the proceedings

Consorzio Italian Management,

Catania Multiservizi SpA

v

Rete Ferroviaria Italiana SpA,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, A. Arabadjiev (Rapporteur), A. Prechal, M. Vilaras, M. Ilešič, L. Bay Larsen, N. Piçarra, A. Kumin, N. Wahl, Presidents of Chambers, T. von Danwitz, C. Toader, L.S. Rossi, I. Jarukaitis and N. Jääskinen, Judges,

Advocate General: M. Bobek,

Registrar: R. Schiano, Administrator,

having regard to the written procedure and further to the hearing on 15 July 2020,

after considering the observations submitted on behalf of:

–

Consorzio Italian Management and Catania Multiservizi SpA, by E. Giardino and A. Cariola, avvocati,

–

Rete Ferroviaria Italiana SpA, by U. Cossu, avvocato,

–

the Italian Government, by G. Palmieri, acting as Agent, and S. Fiorentino, avvocato dello Stato,

–

the German Government, by J. Möller and D. Klebs, acting as Agents,

–

the French Government, by E. de Moustier, acting as Agent,

–

the European Commission, by G. Gattinara, P. Ondrůšek and by L. Haasbeek, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 15 April 2021,

gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Articles 2 and 3 TEU, Article 4(2), Articles 9, 26, 34, Article 101(1)(e) and Articles 106, 151 to 153, 156 and 267 TFEU, Articles 16 and 28 of the Charter of Fundamental Rights of the European Union (‘the Charter’), of the European Social Charter signed at Turin on 18 October 1961 and revised at Strasbourg on 3 May 1996 (‘the European Social Charter’), and of the Community Charter of the Fundamental Social Rights of Workers adopted at the meeting of the European Council held in Strasbourg on 9 December 1989 (‘the Charter of Social Rights’).

2The request has been made in proceedings between Consorzio Italian Management and Catania Multiservizi SpA, the successful tenderers for a public contract for cleaning services for national railway infrastructure, and Rete Ferroviaria Italiana SpA (‘RFI’) concerning the latter’s refusal to grant their request for a review of the contract price.

Legal context

3Article 2(4) of Decreto legislativo n. 163 – Codice dei contratti pubblici relativi a lavori, servizi e forniture in attuazione delle direttive 2004/17/CE e 2004/18/CE (Legislative Decree No 163 establishing the Code on public works contracts, public service contracts and public supply contracts pursuant to Directives 2004/17/EC and 2004/18/EC) of 12 April 2006 (Ordinary Supplement to GURI No 100 of 2 May 2006) (‘Legislative Decree No 163/2006’) provides:

‘In the absence of any express provisions in this Code, the contractual arrangements of the persons referred to in the first article shall also be regulated according to the provisions laid down in the Civil Code.’

4Article 115(1) of Legislative Decree No 163/2006, that article being entitled ‘Price adjustment’, provides:

‘All contracts for the supply of goods or services on an ongoing basis must include a clause providing for periodic review of the price. The revision shall be carried out on the basis of an investigation by the managers responsible for the acquisition of goods and services on the basis of the data referred to in Article 7(4)(c) and (5).’

5Article 206 of that legislative decree provides that only certain provisions of the said legislative decree, which do not include Article 115 thereof, apply to contracts in the sectors covered by Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors ( OJ 2004 L 134, p. 1 ), namely the special gas, thermal energy, electricity, water, transport services, postal services, exploration and extraction of oil, gas, coal and other solid fuels as well as ports and airports.

6Under Article 210 of Legislative Decree No 163/2006, entitled ‘Transport services’:

‘1. Without prejudice to the exclusions referred to in Article 23, the provisions of this Part shall apply to activities relating to the provision or operation of networks providing a service to the public in the field of transport by railway, automated systems, tramway, trolley bus, bus or cable.

2. As regards transport services, a network shall be considered to exist where the service is provided under operating conditions laid down by the competent public authorities, such as conditions on the routes to be served, the capacity to be made available or the frequency of the service.’

7Article 217(1) of the legislative decree, that article being entitled ‘Contracts awarded for purposes other than the pursuit of an activity as described in Chapter 1 or for the pursuit of one of those activities in a third country’, provides:

‘This Part shall not apply to contracts which the contracting entities award for purposes other than the pursuit of their activities as described in Articles 208 to 213 or for the pursuit of such activities in a third country, in conditions not involving the physical use of a network or geographical area within the [European Union].’

8The first paragraph of Article 1664 of the Codice Civile (Civil Code), that article being entitled ‘Onerous financial burdens or difficulties in performance’, provides:

‘When, as a result of unforeseeable circumstances, there are increases or decreases in the cost of labour or materials which give rise to an increase or decrease of more than one-tenth of the overall price agreed, the contractor or developer may seek review of that price. The review may be granted only in respect of the difference which exceeds one-tenth.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

9RFI awarded Consorzio Italian Management and Catania Multiservizi, the applicants in the main proceedings forming a temporary association of undertakings, a contract for the supply of services relating to the cleaning and maintenance of the decoration of the premises and other areas which are open to the public as well as ancillary services at stations, facilities, offices and workshops at various sites throughout the territory covered by the Direzione Compartimentale Movimento de Cagliari (Cagliari Regional Operations Division, Italy). The contract contained a specific clause laying down the procedures for review of the agreed price, which derogated from Article 1664 of the Civil Code.

10During the performance of that contract, the applicants in the main proceedings submitted a request to RFI on the basis, inter alia, of Article 115 of Legislative Decree No 163/2006 for a review of the previously agreed contract price in order to take account of higher contract costs resulting from an increase in staff costs. By decision of 22 February 2012, RFI refused that request.

11The applicants in the main proceedings brought an action before the Tribunale amministrativo regionale per la Sardegna (Regional Administrative Court, Sardinia, Italy) seeking annulment of that decision refusing the request.

12By judgment of 11 June 2014, the Tribunale amministrativo regionale per la Sardegna (Regional Administrative Court, Sardinia) dismissed the action. That court held that Article 115 of Legislative Decree No 163/2006 was not applicable to contracts relating to special sectors, such as the contract at issue in the main proceedings. In that court’s view the supply of services relating to the cleaning of stations, facilities, offices and workshops was ancillary to the main activities relating to the provision or operation of the rail transport network, which came under the special sectors. That same court added that there was no need to review prices pursuant to Article 1664 of the Civil Code, since the parties to the main proceedings had made use of the option available to them under that article to derogate from it by inserting in the contract between them a term limiting price review.

13The applicants in the main proceedings brought an appeal against that judgment before the referring court, claiming, in their first and second pleas, that Article 115 of Legislative Decree No 163/2006 or, in the alternative, Article 1664 of the Civil Code was, contrary to the finding of the Tribunale amministrativo regionale per la Sardegna (Regional Administrative Court, Sardinia), applicable to the contract at issue in the main proceedings. In addition, the applicants in the main proceedings claimed that Articles 115, 206, 210 and 217 of Legislative Decree No 163/2006, inter alia, did not comply with EU law, arguing that those provisions, in so far as they seek to exclude price review in the transport sector, in particular price review of cleaning contracts in that sector, were contrary, inter alia, to Article 3(3) TEU, Articles 26 and 101 et seq. TFEU and Directive 2004/17. In their view the national legislation provides for requirements that are unjustified and excessive as compared to EU legislation. It is also likely to place an undertaking that has been awarded a contract for the supply of cleaning services that is ancillary to a main service in the transport sector in a position of subordination and weakness, as compared to an undertaking that supplies the main service, which would result in a disproportionate and unfair contractual imbalance and ultimately would alter the rules governing the functioning of the market. Finally, they submitted that if price review can be excluded in contracts concluded in the special sectors as a direct result of Directive 2004/17, then the directive is invalid.

14The applicants in the main proceedings asked the referring court to refer questions to the Court of Justice for a preliminary ruling in order to determine whether EU law precludes the national legislation at issue in the main proceedings and to verify the validity of Directive 2004/17.

15By decision of 24 November 2016, received at the Court of Justice on 24 March 2017, the referring court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘1.

Is an interpretation of national law that excludes price review in contracts relating to special sectors, particularly as regards contracts with a different object from those to which the Directive 2004/17 refers, but which are functionally linked to those sectors, compatible with EU law, in particular, Article 3(3) TEU, Articles 26, 56 to 58 and 101 TFEU, and Article 16 of the Charter and Directive 2004/17?

2.Is Directive 2004/17 (if it should be considered that price review may be excluded, in all contracts concluded and implemented within special sectors, as a direct result of that directive) compatible with the principles of the European Union (in particular Article 3(1) TEU, Articles 26, 56 to 58 and 101 TFEU, and Article 16 of the Charter), “in the light of the unfairness, disproportionality, and distortion of contractual balance and, therefore, of the rules governing an efficient market”?’

16By judgment of 19 April 2018, Consorzio Italian Management and Catania Multiservizi ( C‑152/17 , EU:C:2018:264 ), the Court answered the first question by stating that Directive 2004/17 and the general principles underlying that directive must be interpreted as not precluding national rules which do not provide for periodic price review after a contract has been awarded in the sectors covered by that directive.

17In that judgment, the Court also held that the first question was inadmissible in so far as it concerned the interpretation of Article 3(3) TEU, Articles 26, 57, 58 and 101 TFEU, as well as aspects of Article 56 TFEU other than the principles of equality and non-discrimination and the obligation of transparency, that the latter enshrines with regard to the freedom to provide services, on the ground that the order for reference of 24 November 2016 provided no explanation as to the relevance of the interpretation of those provisions for the resolution of the dispute in the main proceedings and, therefore, did not comply with the requirements set out in Article 94 of the Rules of Procedure of the Court.

18Furthermore, as regards the interpretation of Article 16 of the Charter, the Court held that the provisions of Legislative Decree No 163/2006 at issue in the main proceedings, in so far as they do not provide for periodic review of contract prices in the sectors covered by Directive 2004/17, cannot be regarded as implementing EU law within the meaning of Article 51(1) of the Charter.

19The Court considered that, in view of the answer given to the first question, the second question was hypothetical and, therefore, inadmissible.

20Following the delivery of the judgment of 19 April 2018, Consorzio Italian Management and Catania Multiservizi ( C‑152/17 , EU:C:2018:264 ), the referring court held a public hearing on 14 November 2018. In their pleading of 28 October 2018, lodged with a view to that hearing, the applicants in the main proceedings asked that court to refer to the Court of Justice further questions for a preliminary ruling, seeking to determine whether Articles 2 and 3 TEU, Article 4(2), Articles 9, 26, 34, Article 101(1)(e), Articles 106, 151 to 153 and 156 TFEU, Articles 16 and 28 of the Charter, the European Social Charter and the Charter of Social Rights preclude the national legislation at issue in the main proceedings.

21The referring court observes that some of those questions were answered in the judgment of 19 April 2018, Consorzio Italian Management and Catania Multiservizi ( C‑152/17 , EU:C:2018:264 ), whereas others are raised for the first time by the applicants in the main proceedings. The referring court considers that it follows from the Court’s case-law that, in those circumstances, it must make a further reference to the Court for a preliminary ruling, since there is no judicial remedy against its decision and a question relating to the interpretation of EU law is raised before it.

22However, that court considers it necessary to ask the Court of Justice beforehand whether a reference for a preliminary ruling is mandatory in the event that a party to legal proceedings submits to the national court or tribunal of last instance a question on the compatibility of national law with EU law and, in particular, whether such a court may consider that it is relieved of the obligation to make a reference where that question has been submitted by a party not in the initial pleading but subsequently, in particular after the case has been set down for judgment for the first time or even after the national court or tribunal of last instance has already made a reference for a preliminary ruling in that case.

23In addition, the referring court considers that the proposal made by an applicant, at an advanced stage in the proceedings, seeking to have the court in question make a reference to the Court of Justice for a preliminary ruling on the interpretation of EU law provisions on which that party did not rely at the point in time at which the action was brought is inconsistent with a ‘system of bars inherent in the procedure’ established by national legislation, since such a proposal changes the subject matter of the dispute defined by the pleas in law and objections raised by the parties to the proceedings.

24Moreover, according to the referring court, the successive or continuous proposal of questions for a preliminary ruling might give rise to possible abuses of process, render the right to judicial protection nugatory and undermine the principle that legal proceedings must be concluded swiftly and effectively.

25In those circumstances, the Consiglio di Stato (Council of State, Italy) decided once more to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘1.

In accordance with Article 267 TFEU, is a national court whose decisions are not amenable to appeal required, in principle, to make a reference for a preliminary ruling on a question concerning the interpretation of EU law even where the question is submitted to it by one of the parties to the proceedings after that party has lodged its initial pleading, or even after the case has been set down for judgment for the first time, or indeed even after a reference has already been made to the Court for a preliminary ruling?

2.… Are Articles 115, 206 and 217 of Legislative Decree No 163/2006, as interpreted by national administrative case-law, in so far as they exclude price review in the case of contracts relating to special sectors and, in particular, in the case of contracts that have a different object from those to which Directive 2004/17 refers but are functionally linked to one of those objects, consistent with EU law (in particular, Article 4(2), Article 9, Article 101(1)(e), Articles 106, 151, 152, 153 and 156 TFEU, the European Social Charter and the Charter of Social Rights, referred to in Article 151 TFEU, Articles 2 and 3 TEU and Article 28 of the Charter)?

3.… Are Articles 115, 206 and 217 of Legislative Decree No 163/2006, as interpreted by national administrative case-law, in so far as they exclude price review in the case of contracts relating to special sectors and, in particular, in the case of contracts that have a different object from those to which Directive 2004/17 refers but are functionally linked to one of those objects, consistent with EU law (in particular, Article 28 of the Charter, the principle of equal treatment enshrined in Articles 26 and 34 TFEU, and the principle of freedom to conduct a business enshrined in Article 16 of the Charter)?’

The questions referred for a preliminary ruling

The first question

26By its first question, the referring court asks, in essence, whether Article 267 TFEU must be interpreted as meaning that a national court or tribunal against whose decisions there is no judicial remedy under national law is relieved of the obligation, laid down in the third indent of that article, to bring before the Court of Justice a question concerning the interpretation of EU law where that question is put to it by a party at an advanced stage of the proceedings, after the case has been set down for judgment for the first time or where a reference for a preliminary ruling has already been made in that case.

52Finally, it must also be assessed whether a national court or tribunal of last instance is relieved of the obligation to bring before the Court a question concerning the interpretation of EU law, under the third paragraph of Article 267 TFEU, where the reference for a preliminary ruling has been proposed by a party to the proceedings at an advanced stage thereof, in particular after a reference for a preliminary ruling has already been made, moreover, following a request by that party.

59The fact that that court or tribunal has already made a reference to the Court of Justice for a preliminary ruling in the same national proceedings does not affect that obligation when a question concerning the interpretation of EU law the answer to which is necessary for the resolution of the dispute remains after the Court’s decision.

60The referring court mentions, however, national procedural rules according to which a further question concerning the interpretation of EU law that has been raised by a party in the dispute in the main proceedings, where it changes the subject matter of the dispute, is inadmissible, in particular when it is submitted after a reference for a preliminary ruling has already been made.

61In that regard, it must be recalled that a national court or tribunal of last instance may refrain from referring a question to the Court of Justice for a preliminary ruling on grounds of inadmissibility specific to the procedure before that court or tribunal, subject to compliance with the principles of equivalence and effectiveness (see, to that effect, judgments of 14 December 1995, van Schijndel and van Veen, C‑430/93 and C‑431/93 , EU:C:1995:441 , paragraph 17 , and of 15 March 2017, Aquino, C‑3/16 , EU:C:2017:209 , paragraph 56 ).

62The principle of equivalence requires that all the rules applicable to actions apply without distinction to actions alleging infringement of EU law and to similar actions alleging infringement of national law (judgment of 15 March 2017, Aquino, C‑3/16 , EU:C:2017:209 , paragraph 50 and the case-law cited).

65If, in accordance with the procedural rules of the Member State concerned which observe the principles of equivalence and effectiveness, the pleas in law raised before a court or tribunal referred to in the third paragraph of Article 267 TFEU must be declared inadmissible, a request for a preliminary ruling cannot be regarded as necessary and relevant for that court or tribunal to be able to give judgment (judgment of 15 March 2017, Aquino, C‑3/16 , EU:C:2017:209 , paragraph 44 ).

66In the light of all of the foregoing, the answer to the first question is that Article 267 TFEU must be interpreted as meaning that a national court or tribunal against whose decisions there is no judicial remedy under national law must comply with its obligation to bring before the Court a question concerning the interpretation of EU law that has been raised before it, unless it finds that that question is irrelevant or that the provision of EU law in question has already been interpreted by the Court or that the correct interpretation of EU law is so obvious as to leave no scope for any reasonable doubt. The existence of such a possibility must be assessed in the light of the characteristic features of EU law, the particular difficulties to which the interpretation of the latter gives rise and the risk of divergences in judicial decisions within the European Union. Such a court or tribunal cannot be relieved of that obligation merely because it has already made a reference to the Court for a preliminary ruling in the same national proceedings. However, it may refrain from referring to the Court a question for a preliminary ruling on grounds of inadmissibility specific to the procedure before that court or tribunal, subject to compliance with the principles of equivalence and effectiveness.

The second and third questions

67By its second and third questions, which it is appropriate to examine together, the referring court asks, in essence, whether Articles 2 and 3 TEU, Article 4(2), Articles 9, 26, 34, Article 101(1)(e) as well as Articles 106, 151 to 153 and 156 TFEU, Articles 16 and 28 of the Charter, the European Social Charter and the Charter of Social Rights must be interpreted as precluding national legislation which does not provide for periodic price review after a contract has been awarded in the sectors covered by Directive 2004/17.

70In the present case, it should be stated that, by this request for a preliminary ruling, the referring court has failed to remedy the lacuna established by the Court in paragraph 23 of its judgment of 19 April 2018, Consorzio Italian Management and Catania Multiservizi, ( C‑152/17 , EU:C:2018:264 ), in so far as, in breach of Article 94(c) of the Rules of Procedure, it still fails to state with the requisite precision and clarity the reasons why it considers that the interpretation of Article 3 TEU as well as Article 26 and Article 101(1)(e) TFEU is necessary or useful for the purpose of resolving the dispute in the main proceedings or the relationship between EU law and the national legislation applicable to those proceedings. Neither does the referring court specify the reasons which prompted it to inquire about the interpretation of the other provisions and measures mentioned in the second and third questions referred, including, in particular, the European Social Charter, which the Court, moreover, has no jurisdiction to interpret (see, to that effect, judgment of 5 February 2015, Nisttahuz Poclava, C‑117/14 , EU:C:2015:60 , paragraph 43 ), but merely sets out, in essence, the questions of the applicants in the main proceedings in that regard, as is apparent from paragraph 20 above, without giving its own assessment.

71It follows that the second and third questions are inadmissible.

Costs

72Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national 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 (Grand Chamber) hereby rules:

Article 267 TFEU must be interpreted as meaning that a national court or tribunal against whose decisions there is no judicial remedy under national law must comply with its obligation to bring before the Court of Justice a question concerning the interpretation of EU law that has been raised before it, unless it finds that that question is irrelevant or that the provision of EU law in question has already been interpreted by the Court or that the correct interpretation of EU law is so obvious as to leave no scope for any reasonable doubt.

The existence of such a possibility must be assessed in the light of the characteristic features of EU law, the particular difficulties to which the interpretation of the latter gives rise and the risk of divergences in judicial decisions within the European Union.

Such a court or tribunal cannot be relieved of that obligation merely because it has already made a reference to the Court for a preliminary ruling in the same national proceedings. However, it may refrain from referring to the Court a question for a preliminary ruling on grounds of inadmissibility specific to the procedure before that court or tribunal, subject to compliance with the principles of equivalence and effectiveness.

[Signatures]

( *1 ) Language of the case: Italian

( i ) The wording of paragraphs 33, 39 and 66 and of the operative part of this document has been modified after it was first put online.