On 9 February 2023, the EU Court of Justice (ECJ) issued its judgment in case C‑53/22 (VZ v. CA) concerning the interpretation of Article 1(3) of Council Directive No. 89/665/EEC of 21 December 1989, which relates to the application of appeal procedures to the award of public supply and public works contracts. The case involved a company (VZ) and a contracting authority (CA) regarding the latter's refusal to annul a decision to award a public contract for a rescue service to be carried out in Lombardy and Liguria. The question at issue was whether the legislation of a Member State that does not allow an operator to challenge the contracting authority's refusal to annul the decision awarding a public contract when the operator did not satisfy a condition for participation laid down in the call for tenders and had its action against the inclusion of that condition rejected, is precluded by Article 1(3) of Directive 89/665. The Court ruled that the Article does not preclude such legislation, and an operator can challenge the refusal to annul a decision awarding a public contract if the successful tenderer and all other tenderers had participated in an agreement constituting an infringement of competition rules in the same sector as the procedure for the award of that public contract.
Originally published by March, 2023
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