Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

BOBEK

delivered on 30 April 2019(1)

Case C‑620/17

Hochtief Solutions AG Magyarországi Fióktelepe

v

Fővárosi Törvényszék

(Request for a preliminary ruling from the Székesfehérvári Törvényszék (Székesfehérvár High Court, Hungary))

(Reference for a preliminary ruling — Public procurement — Review procedures — Binding force of preliminary rulings — Member State procedural autonomy — Motion for retrial — Equivalence and effectiveness — Member State liability for breaches of EU law arising from decisions of national courts — Failure to refer under the third paragraph of Article 267 TFEU)

I.      Introduction

1.        The present case is another instalment of a rather complex procedural saga, currently in its third episode. With a considerable degree of simplification, the first episode featured the original national decisions on the merits. Within that episode (or litigation round), the appellate national court dealing with the case, the Fővárosi Ítélőtábla (Budapest Regional Court of Appeal, Hungary), requested guidance from this Court. (2) Disagreeing with the way in which the national courts allegedly (mis)applied that guidance in the litigation on the merits, the second round of national litigation concerned a motion for a retrial brought by Hochtief Solutions AG Magyarországi Fióktelepe (‘Hochtief Hungary’).

2.        The present request for a preliminary ruling was made within the third round of national litigation concerning a claim for damages brought by Hochtief Hungary on two grounds. First, in the view of Hochtief Hungary, the Fővárosi Törvényszék (Budapest High Court, Hungary), acting as an appeal court in the request for a retrial in the second round, should have authorised a retrial in order to take into account the preliminary ruling of the Court given earlier in the same case. Second, it should have made a further request for a preliminary ruling to the Court so that the latter could determine whether, in the circumstances of the case, EU law required a retrial.

3.        It is in this context that the Court is asked to address essentially three sets of questions: first, the consequences, under EU law, of the alleged failure of the national courts hearing the case on the merits to correctly implement the preliminary ruling of the Court due to the operation of various procedural limitations; second, whether EU law requires that the extraordinary remedy of a retrial, offered under national law in certain situations, also be extended to alleged breaches of EU law in a situation such as the one in the main proceedings; and, third, a number of elements relating to the conditions for Member State liability.

II.    Legal framework

A.      EU law

4.        Article 1 of Directive 89/665/EEC on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (3) requires the Member States to ensure that decisions taken by the contracting authorities may be reviewed effectively and that the review procedures are available to any person having or having had an interest in obtaining a particular public supply or public works contract and who has been or risks being harmed by an alleged infringement.

5.        Article 2(1) of Directive 92/13/EEC coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (4) requires the Member States to provide for the power either to take interim measures regarding the procedure for the award of a contract or the implementation of any decision taken by the contracting entity and to set aside decisions taken unlawfully relating to the contract award procedure in question, or to take other types of measures with the aim of correcting any identified infringement and preventing injury to the interests concerned. Member States must also provide for the power to award damages to persons injured by the infringement.

B.      Hungarian Law

6.        Sections 6:548(1) and 6:549(1) of a Polgári Törvénykönyvről szóló 2013. évi V. törvény (Law V of 2013 on the Civil Code) (‘the Civil Code’) set out under the title ‘Liability for the actions of public authorities’:

‘Section 6:548 [Liability for the actions of administrative authorities]: (1) Liability for damage caused within the scope of administrative jurisdiction shall be established only if the damage results from actions or omissions in the exercise of public authority, and if the damage cannot be abated by common remedies or by way of administrative actions.

...

Section 6:549 [Liability for the actions of courts, public prosecutors, notaries public and court bailiffs]: (1) The provisions on liability for damage caused within the scope of administrative jurisdiction shall apply mutatis mutandis to liability for the actions of courts and public prosecutors … A claim may be lodged only if common remedies have been exhausted.

...’

7.        Section 260(1)(a) and (2) of a Polgári perrendtartásról szóló 1952. évi III. törvény (Act III of 1952 on the Code of Civil Procedure) (‘the Civil Procedural Code’) reads as follows:

‘(1)      A request for a retrial may be submitted against a final judgment if:

(a)      the party presents any fact or evidence, or any final court or administrative decision that the court did not take into consideration during the previous proceedings, provided that it would have been to his benefit had it been considered originally;

...

(2)      Under Paragraph (a) of Subsection (1) above, either of the parties shall be able to file a request for a retrial only if he was unable to present the fact, evidence or decision mentioned therein during the previous proceedings through no fault of his own.’

8.        Section 361(a) of the Civil Procedural Code provides that:

‘The Kúria (Supreme Court, Hungary) shall resolve constitutional complaints as per the following:

(a)      if the resolution of the Alkotmánybíróság (Constitutional Court, Hungary) is for the annulment of a substantive law or provision, and the case was handled by way of an action (or non-judicial proceedings) only, the applicant shall be advised of his right to submit a request for a retrial within 30 days at the competent court of first instance.’

III. Facts, procedure and questions referred

9.        On 25 July 2006, the Észak-dunántúli Környezetvédelmi és Vízügyi Igazgatóság (North Transdanubia Environmental Protection and Water Management Directorate, ‘the contracting authority’) published a call for expressions of interest in the Official Journal of the European Union (5) for a public works contract concerning the development of transportation infrastructures in the intermodal centre of the national commercial harbour of Györ-Gönyü. The call for expressions of interest contained a number of conditions for participation in the tendering procedure. In particular, point III.2.2. of the call for expressions of interest laid down a criterion for economic and financial capacity (‘the economic requirement’). Under that requirement, the profit/loss item in the candidates’ balance sheet could not be negative for more than one of the last three completed financial years.

10.      Hochtief Hungary is the Hungarian branch of Hochtief Solutions AG, a German construction company that is, in turn, a subsidiary of the parent company Hochtief AG. Hochtief Hungary did not participate in the tendering procedure. By decision of 14 August 2006, the contracting authority declared that only one candidate, the Hungarian Port 2006 Konzorcium, met all the qualification criteria, so only that candidate could be invited to submit a tender.

11.      On 9 August 2006, Hochtief Hungary challenged the lawfulness of the economic requirement laid down in the call for expressions of interest before the Közbeszerzési Döntőbizottság (Public Procurement Arbitration Committee, Hungary, ‘the Arbitration Committee’), putting forward that the economic requirement was both discriminatory and not suitable to substantiate the financial capacity of the candidates. It also sought the annulment of the call for expressions of interest and the adoption of an order to conduct a new tendering procedure.

12.      In its decision of 25 September 2006, the Arbitration Committee considered that the economic requirement was not inappropriate to establish the economic and financial capacity of the candidates. However, by the same decision, the Arbitration Committee imposed a fine of 8 000 000 Hungarian forint (HUF) on the contracting authority for infringing other provisions of the national legislation on public procurement.

13.      On 2 October 2006, Hochtief Hungary sought judicial review of the Arbitration Committee’s decision before the Fővárosi Bíróság (Budapest Regional Court, Hungary) with regard to the committee’s findings concerning financial capacity. Hochtief Hungary maintained that the economic requirement was not suitable to substantiate the financial capacity of an undertaking.

14.      In its judgment of 17 March 2010, the Fővárosi Bíróság (Budapest Regional Court) dismissed Hochtief Hungary’s request for judicial review. Although it noted that the latter had claimed in its original complaint before the Arbitration Committee that net worth was not suitable to substantiate financial capacity, the Fővárosi Bíróság (Budapest Regional Court) still found that the economic requirement at issue was a suitable criterion to provide information as to the candidates’ financial capacity.

15.      Hochtief Hungary appealed against that first-instance judgment before the Fővárosi Ítélőtábla (Budapest Regional Court of Appeal). That court stayed the proceedings and made a request for a preliminary ruling to the Court.

16.      In its judgment of 18 October 2012, the Court held that ‘a contracting authority may require a minimum level of economic and financial standing by reference to one or more particular aspects of the balance sheet, provided those aspects are such as to provide information on such standing of an economic operator and that that level is adapted to the size of the contract concerned in that it constitutes objectively a positive indication of the existence of a sufficient economic and financial basis for the performance of that contract, without, however, going beyond what is reasonably necessary for that purpose. The requirement of a minimum level of economic and financial standing cannot, in principle, be disregarded solely because that level relates to an aspect of the balance sheet regarding which there may be differences between the legislations of the different Member States’. (6)

17.      In its final judgment on the matter of 18 June 2013, the Fővárosi Törvényszék (Budapest High Court) concluded that, in the light of the preliminary ruling given by the Court, the economic requirement was not incompatible with EU law. The Fővárosi Törvényszék (Budapest High Court) further noted that the necessity and proportionality of the economic requirement had been duly examined by the Arbitration Committee and was also addressed in the first‑instance judgment.

18.      On 13 September 2013, Hochtief Hungary filed an appeal on points of law before the Kúria (Supreme Court) against the second-instance judgment. It argued that the Fővárosi Törvényszék (Budapest High Court) had not examined the objective suitability of the economic requirement. In this context, Hochtief Hungary requested the Kúria (Supreme Court) to refer the case for a preliminary ruling on the question of whether the Fővárosi Törvényszék (Budapest High Court) was entitled not to examine the objective suitability of the qualification criteria without making a new request for a preliminary ruling.

19.      By its judgment of 19 March 2014, the Kúria (Supreme Court) rejected the appeal on points of law on the ground that the complaint against the economic requirement had been brought out of time, as Hochtief Hungary had not raised that issue in its original complaint before the Arbitration Committee, but only in its subsequent submissions. The only issue that was raised in time by Hochtief Hungary in relation to the contested requirement was its discriminatory nature, so only that aspect was to be assessed.

20.      Subsequently, Hochtief Hungary filed a constitutional complaint before the Alkotmánybíróság (Constitutional Court), as well as a request for a retrial before the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court, Hungary).

21.      First, within the framework of the constitutional complaint, Hochtief Hungary contended that its rights to a fair trial and to an effective remedy had been infringed. It argued that the Kúria (Supreme Court) should have referred further questions to the Court. On 9 February 2015, the Alkotmánybíróság (Constitutional Court) declared the constitutional complaint inadmissible. The right to an effective remedy invoked by Hochtief Hungary did not guarantee a right to a specific decision and it was for the Kúria (Supreme Court) to decide whether it was necessary to request a preliminary ruling.

22.      Second, as regards the request for a retrial, Hochtief Hungary contested the lack of consideration of the suitability of the economic requirement and asked for the reopening of the judicial review proceedings in their entirety, the setting aside of all previous judgments and the adoption of a new decision. It also requested the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court) to request a new preliminary ruling on the question of whether a preliminary ruling could be ignored without a new referral.

23.      By its order of 8 May 2015, the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court) declared the request for a retrial inadmissible, while not considering a reference to the Court necessary. It noted that the facts relied on by Hochtief Hungary in its request for a retrial were not new. The courts in the main proceedings already knew them and had evaluated them. By its request for a retrial, Hochtief Hungary was seeking the review of the legal position taken by the Kúria (Supreme Court), which was a question of law and not of fact. A retrial is not designed to correct alleged errors in the application of the law.

24.      Hochtief Hungary subsequently filed an appeal against the order of inadmissibility of the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court) before the Fővárosi Törvényszék (Budapest High Court), the defendant in the present case. The latter upheld the first-instance decision in its order of 18 November 2015. It confirmed that the extraordinary remedy of a retrial aimed to rectify factual errors as opposed to errors in the application of the law. The relevant facts had been the same throughout the entire chain of proceedings, and they were assessed at every stage.

25.      Eventually, Hochtief Hungary brought an action for damages before the referring court, the Székesfehérvári Törvényszék (Székesfehérvár High Court, Hungary), for the harm allegedly caused by the decision of the Fővárosi Törvényszék (Budapest High Court) in its capacity as the appeal court in the request for a retrial. Hochtief Hungary claims that declaring the request for a retrial inadmissible ran contrary to both national and EU law and should give rise to damages in the form of the legal costs which could have been reimbursed if a retrial had been granted and if Hochtief Hungary had ultimately been successful.

26.      It is within this factual and legal context that the Székesfehérvári Törvényszék (Székesfehérvár High Court) decided to stay the proceedings and refer the following questions to the Court of Justice:

‘(1)      Are the basic principles and rules of EU law (in particular Article 4(3) TEU, and the requirement of uniform interpretation), as interpreted by the Court of Justice of the European Union, especially in the judgment in Köbler, to be interpreted as meaning that the declaration of the liability of the court of the Member State ruling at final instance in a judgment infringing EU law may be based exclusively on national law or on the criteria laid down by national law? If not, are the basic principles and rules of EU law, particularly the three criteria laid down by the [Court of Justice] in Köbler for declaring the liability of the “State” to be interpreted as meaning that whether the conditions for the Member State to incur liability for infringement of EU law by the courts of that State are met is to be assessed on the basis of national law?

(2)      Are the basic principles and rules of EU law (in particular Article 4(3) TEU and the requirement of effective judicial protection), particularly the judgments of the [Court of Justice] concerning the liability of the Member State delivered in, inter alia, Francovich, Brasserie du pêcheur and Köbler, to be interpreted as meaning that the force of res judicata attaching to judgments that infringe EU law delivered by courts of the Member States ruling at final instance precludes a declaration that the Member State is liable for damages?

(3)      In the light of [Directive 89/665], as amended by Directive 2007/66/EC, (7) and of [Directive 92/13], are the review procedure concerning the award of public contracts of a value greater than the Community thresholds and the judicial review of the administrative decision adopted in that procedure relevant for the purposes of EU law? If so, are EU law and the case-law of the [Court of Justice] (inter alia, the judgments in Kühne & Heitz, Kapferer, and especially Impresa Pizzarotti) regarding the necessity of granting review, as an extraordinary appeal, which is derived from national law on judicial review of the administrative decision adopted in the abovementioned review procedure concerning the award of public contracts, relevant for the purposes of EU law?

(4)      Are the directives on review procedures concerning the award of public contracts (namely, [Directive 89/665], as amended in the meantime by [Directive 2007/66], and [Directive 92/13]) to be interpreted as meaning that national legislation, under which the national courts before which the dispute in the main proceedings is brought may disregard a fact that has to be examined in accordance with a judgment of the [Court of Justice], delivered in a preliminary ruling procedure in connection with a review procedure concerning the award of public contracts, a fact that is not taken into account either by the national courts ruling in proceedings instituted as a result of the review procedure brought against the decision adopted in the main proceedings, is compatible with those directives?

(5)      Are [Directive 89/665], in particular Article 1(1) and (3) thereof, and [Directive 92/13], in particular Articles 1 and 2 thereof (especially in the light of the judgments delivered in Willy Kempter, Pannon GSM and VB Pénzügyi Lízing, and also Kühne & Heitz, Kapferer and Impresa Pizzarotti), to be interpreted as meaning that national legislation, or an application thereof, in accordance with which, although a judgment of the [Court of Justice] delivered in a preliminary ruling procedure before judgment in the proceedings at second instance establishes a relevant interpretation of the rules of EU law, the court hearing the case rejects it on the grounds that it is out of time and subsequently the court hearing the application for review does not consider the review admissible, is compatible with the abovementioned directives and with the requirements of effective judicial protection and with the principles of equivalence and effectiveness?

(6)      If, under national law, review must be granted in order to re‑establish constitutionality by means of a new decision of the Constitutional Court, should review not be granted, in accordance with the principle of equivalence and the principle laid down in the judgment in Transportes Urbanos, if it has not been possible to take into account a judgment of the [Court of Justice] in the main proceedings owing to the provisions of national law concerning procedural time limits?

(7)      Are [Directive 89/665], in particular Article 1(1) and (3) thereof, and [Directive 92/13], in particular Articles 1 and 2 thereof, in the light of the judgment of the [Court of Justice] in Willy Kempter, C‑2/06, EU:C:2008:78, according to which an individual need not rely specifically upon the case‑law of the Court of Justice, to be interpreted as meaning that the review procedures concerning the award of public contracts governed by the abovementioned directives may be initiated only by an action containing an express description of the infringement concerning the award of public contracts invoked and, furthermore, clearly indicates the procurement rule infringed (the specific article and paragraph), that is to say, that in a review procedure concerning the award of public contracts only those infringements that the appellant has indicated by reference to the procurement provision infringed (the specific article and paragraph), whereas in any other administrative and civil procedure it is sufficient for the individual to present the facts and the evidence supporting them, and for the competent authority or court to give a ruling in accordance with their content?

(8)      Is the requirement of a sufficiently serious infringement laid down in the judgments in Köbler and Traghetti to be interpreted as meaning that there is no such infringement if the court ruling at final instance, in clear contravention of the established case-law, cited in the greatest detail, of the [Court of Justice], supported by various legal opinions as well, refuses an individual’s request for a question to be referred for a preliminary ruling as to whether review ought to be granted, on the absurd grounds that EU law, in this case, in particular, [Directives 89/665 and 92/13], contains no rules governing review, in spite of the fact that, for that purpose, reference has also been made in the greatest detail to the relevant case-law of the [Court of Justice], including also the judgment in Impresa Pizzarotti, which specifically states the need of review in relation to the public procurement procedure? In the light of the judgment of the [Court of Justice] in CILFIT, 283/81, EU:C:1982:335, with what degree of detail must the national court that does not grant review justify its decision to depart from the authoritative legal interpretation given by the Court of Justice?

(9)      Are the principles of effective judicial protection and of equivalence in Article 19 TEU and Article 4(3) TEU, freedom of establishment and freedom to provide services laid down in Article 49 TFEU, and Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, and also [Directives 89/665, 92/13 and 2007/66], to be interpreted as not precluding the competent authorities and courts from dismissing one after another, in manifest disregard of the applicable EU law, the appeals brought by the appellant because it was unable to participate in a public procurement procedure, appeals for which it is necessary to prepare, depending on the circumstances, numerous documents with considerable investment of time and money or to participate at hearings, and, although it is true that, in theory, liability may be declared for damage caused in the exercise of judicial functions, the relevant legislation prevents the appellant claiming from the court compensation for harm suffered as a consequence of the unlawful measures?

(10)      Are the principles laid down in the judgments in Köbler, Traghetti and Saint Giorgio to be interpreted as meaning that compensation may not be paid for damage caused by the fact that, in infringement of the established case‑law of the Court of Justice, the court of the Member State ruling at final instance has not granted the review requested in good time by the individual, in which he could have claimed compensation for the costs incurred?’

27.      Written submissions were lodged by Hochtief Hungary, the Fővárosi Törvényszék (Budapest High Court), the Greek, Hungarian and Polish Governments and the European Commission. With the exception of the Greek and Polish Governments, they all presented oral argument at the hearing held on 21 November 2018.

IV.    Assessment

28.      This Opinion is structured as follows. I will start with a number of necessary clarifications (A). I will then address in turn the 3 sets of issues that permeate the 10 questions posed by the referring court: first, the extent of the duty of national courts to implement preliminary rulings, notably in the context of various procedural provisions the operation of which may hamper the full implementation of those preliminary rulings at various stages of the national judicial proceedings (B); second, the (non-)existence, in the circumstances of a case such as the present one, of a right to a retrial as a matter of EU law, when a judgment given previously by the Court, following a request for a preliminary ruling within the same proceedings, has allegedly not been correctly complied with by the national courts hearing the case on the merits (C); third, several elements of Member State liability for alleged failures of the national courts to correctly apply EU law (D).

A.      Introductory remarks

1.      Admissibility of the questions posed by the referring court

29.      According to the defendant, the questions posed by the referring court are inadmissible. The order for reference does not state the reasons why interpretation of EU law is required in the present case. Nor does it mention the link between the relevant EU law provisions and the national legislation at issue.

30.      It is established case-law that questions on the interpretation of EU law referred by a national court in a factual and legislative context, which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. Consequently, where the questions submitted concern the interpretation of a rule of EU law, the Court is in principle bound to give a ruling. (8) In so doing, the Court must provide the national court with an answer which will be of use and enable the latter to determine the case at issue. (9)

31.      Admittedly, the present case puts those principles to quite a test on a number of accounts. In contrast to the defendant, however, I would suggest that, after reformulation, the questions of the referring court are admissible, with the exception of Questions 7 and 9.

32.      First, it is indeed true that the questions posed by the referring court are drafted in a complex and somewhat convoluted style. However, after rephrasing, it would appear that those questions touch upon the following three sets of issues.

33.      Questions 4 and 5 essentially relate to the compatibility with EU law of various national limits pertaining to the conduct of various stages of national judicial proceedings. It would appear that the operation of those procedural rules could limit the full implementation of preliminary rulings issued previously in the course of the main proceedings.

34.      Questions 3 and 6 enquire, in substance, whether it is compatible with the requirements of equivalence and effectiveness not to consider a preliminary ruling of the Court given previously in the main proceedings that was allegedly not implemented in those proceedings as a possible ground for a retrial.

35.      Questions 1, 2, 8 and 10 pertain to various elements of Member State liability for the alleged failure of the national courts, in particular the Fővárosi Törvényszék (Budapest High Court).

36.      Second, while regrouping and reformulating the questions, it is also necessary to underline that, restated in this way, the questions pertain exclusively to the interpretation of EU law. The questions as formulated by the referring court contain a number of preconceived factual or circumstantial evaluations and inferences. By answering questions posed in that way, the Court would thus effectively be invited to evaluate a certain reading of the facts or of national law, or even to endorse the suggestions about certain practices at national level. That is, however, not the role of the Court in the preliminary ruling procedure. It is solely for the referring court to assess the facts. (10) Thus, I wish to clearly underline that the answers to be given here pertain only to EU‑law elements raised by the referring court by the three sets of issues identified above. They in no way approve or endorse the factual statements and evaluations contained in the questions as originally phrased.

37.      Third, another potential admissibility issue concerns the relevance of some of the questions for the main proceedings. It is settled case-law that the Court may refuse to rule on a question referred for a preliminary ruling by a national court where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (11)

38.      In the present case, as was confirmed at the hearing, the subject matter before the referring court is, strictly speaking, the damage allegedly caused by the Fővárosi Törvényszék (Budapest High Court), acting as the (last-instance) court adjudicating on the reopening of the case, both by its refusal to reopen the case and by its failure to submit a new request for a preliminary ruling before doing so. It could thus be suggested that the questions that are not directly connected with the liability action pending before the referring court should be held inadmissible, since they do not directly relate to the specific subject matter of the dispute before the referring court.

39.      I find such strict logic difficult to embrace. At the structural level, it would be at odds with the rather generous approach of this Court to the relevance of questions asked by national courts. (12) The ‘spirit of cooperation’ and ‘presumption of relevance’ would thus effectively be replaced by this Court interpreting for the national court its own scope of case and procedure and, on that interpretation (of national law and facts), deciding which questions that court is allowed to ask.

40.      Furthermore, at the level of the case at hand, such an approach would also hardly do justice to the specific context of the present case. The questions posed by the referring court are indeed part of an interconnected and complex judicial story. It is no easy task, solely on the basis of the order for reference, to navigate through and disentangle all the intricacies of the national procedural background in this case, notably with regard to the progression of the proceedings themselves. A fortiori, it may then be even more difficult to state categorically which of those procedural stages is or is not relevant for a potential liability claim.

41.      As already alluded to in the introduction to this Opinion, there were actually three ‘rounds’ (13)of litigation. The first round encompassed a number of decisions on the merits. It consisted in the (administrative) review before the Arbitration Committee, followed by the first- and second-instance judgments and, subsequently, by the appeal on points of law before the Kúria (Supreme Court) and the constitutional complaint. The second round encompassed the request for a retrial, together with the appeal procedure in that respect. The third round includes the action in the main proceedings, namely Member State liability for the alleged failures of the national courts.

42.      All three rounds are connected through a common thread: the alleged failure by the national courts, throughout those different rounds, to comply with a preliminary ruling issued by the Court in the course of the first round. Admittedly, there would be no second round, or a fortiori any third round, without the alleged infringement that occurred within the first one. Thus, addressing the — currently pending — third round and, more broadly, the consequences that flow from the alleged failure to implement the preliminary ruling in the first round, necessarily requires looking at the national proceedings in their entirety. It would indeed be difficult to artificially split the proceedings since potential irregularities committed within the first round spill over into the second round and those in the second round into the third. Or, put in reverse order, if there is no duty to conduct a retrial as a matter of EU law, then the purpose of the third round of litigation effectively falls away. Going even further, if there was potentially no failure in the first round, then the other two rounds become futile and the answer relating to the obligations of national courts in that first round pre-empts the need for any further interpretation of EU law.

43.      Furthermore, it is also difficult to look at the court of second instance (upon receiving the preliminary ruling) without also having regard to the administrative review by the Arbitration Committee since the main reason for not fully applying the Court’s preliminary ruling seems to lie in the procedural rule that limits the scope of the judicial dispute to the claims initially raised before that committee. (14) According to that rule, all claims relating to an alleged incompatibility of the tendering procedure with EU law must have already been raised before the Arbitration Committee. No new claim can subsequently be put forward before the courts examining that latter’s decision such as, in the present case, the first- and second-instance courts.

44.      In such circumstances, I would find it difficult to categorically state that questions relating to the first or second round of the national litigation are inadmissible because they bear no relation whatsoever to the proceedings pending before the referring court. They clearly do.

45.      That being said, it can only be repeated that it is certainly not for this Court to determine whether the national courts correctly applied EU law — and even less national law — in each of the rounds. It is also not for this Court to evaluate whether or not the procedural route chosen by Hochtief Hungary was correct or whether it should have filed a liability action against the Kúria (Supreme Court) directly, after the first round, as suggested by the Hungarian Government at the hearing.

46.      In my view, therefore, on the application of the Court’s standard case‑law, (15) in line with the reformulation and understanding of the questions outlined above, (16) the questions posed by the referring court are admissible, save for Questions 7 and 9.

47.      Question 7 specifically concerns the degree of precision that requests for (administrative) review before the Arbitration Committee must feature. By this question, the referring court seeks to determine whether such requests must contain an express description of the infringement and precisely indicate the specific provision infringed whereas, in any other administrative and civil procedure, it would be sufficient to present the facts and the evidence supporting them.

48.      Even with all the allowances made, I fail to see how Question 7 would be of any relevance for settling the present dispute. No party has suggested, including Hochtief Hungary, that the rule at issue was so strict that it would make it impossible or excessively difficult to apply EU law, notably in the form of a previously issued Court judgment, and to ensure effective judicial protection in public procurement matters. There is simply no further information on how that rule would be relevant for the purposes of the present case.

49.      Question 9 concerns for its part the issue of whether EU law allows national authorities and courts to consistently dismiss the actions brought by Hochtief Hungary in a context where those actions are costly and time-consuming and where the relevant national legislation allegedly prevents applicants from seeking damages for the harm caused by national courts in the exercise of their judicial function.

50.      By that question, the national court is not really posing a question, but rather seeks the endorsement of a number of (rather far-reaching and radical) factual assumptions.

2.      A terminological note

51.      In the English (as well as some other) versions of the questions as published in the Official Journal, (17) the word ‘review’ has been used to refer to the different types of remedies discussed in the present case. The problem with the indiscriminate use of such a generic concept is that it lacks precision as to which type of judicial remedy it refers to (and to which round), in particular in distinguishing between the first round of litigation (judicial review on the merits in the proper sense) and the second round (reopening or retrial). The following terminology will therefore be used throughout this Opinion.

52.      ‘Administrative review’ refers to the procedure before the Arbitration Committee, which was apparently the first body that assessed the lawfulness of the economic requirement.

53.      ‘Judicial review’ refers to judicial scrutiny of the administrative decision issued by the Arbitration Committee before the national courts, within the first ‘round’, when deciding the merits of the case. That obviously includes the first and second instances. It also includes appeals on points of law, as an extraordinary remedy. Despite its specific nature, that latter is indeed still concerned with the (primary) subject matter of the case, namely the legality of the decision taken by the Arbitration Committee.

54.      ‘Retrial’ will be used to refer to the extraordinary remedy that is the core of the second ‘round’. It normally consists in reopening and revisiting a case when it subsequently appears that certain elements have not been taken into consideration, despite the existence of a final decision having the force of res judicata issued within the first ‘round’ on the merits. In the context of the present case, retrial refers to the procedure provided for under Section 260 of the Hungarian Code of Civil Procedure.

B.      Executing a preliminary ruling of the Court in ongoing national judicial proceedings

55.      Questions 4 and 5 essentially relate to the compatibility with EU law of various procedural limits laid down by national law that could prevent the full and correct execution of a preliminary ruling of the Court issued in the case at hand. With some degree of reconstruction, I would understand Question 4 to enquire about the compatibility with EU law of national rules of procedure that allegedly prevent the taking into account of new facts at a certain level of review. Thus, if guidance in the form of a judgment of the Court is issued at the request of a national court at the level of appeal where no new facts can normally be ascertained, by the operation of that national procedural rule, such type of assessment would no longer be possible. Question 5 then focuses more on new points of law that could be rejected as being brought too late, either before a higher jurisdiction or within the judicial review itself, if the same arguments or legal points had not already been made during the administrative review.

56.      In other words, both elements relate, in one way or another, to the distribution of tasks within the judicial (and/or administrative) system and the economy of proceedings. It is natural, in both national as well as EU systems of legal protection, that not any and every fact or legal argument can be brought at whatever stage of proceedings. There are general rules relating to, for example, the permissible scope of review or concentration of pleadings, certainly as a case advances through the judicial system.

57.      However, what is rather unusual is to invoke such rules to justify potentially refusing to implement the guidance issued by this Court in a preliminary ruling only by virtue of the fact that such guidance came at a certain level of national judicial review in the main proceedings. In this section, I shall explain why, in general, (18) such reliance on those rules is very much mistaken and cannot be maintained if guidance issued by this Court is to be correctly implemented.

58.      In doing so, I shall first recall the scope of the obligation incumbent on national courts to execute a decision issued by this Court on a preliminary ruling and to apply the guidance contained therein (1). I will subsequently turn to the national procedural rule that appears to be the main reason why the Court’s preliminary ruling was allegedly not fully applied in the first round (2). Finally, I will examine whether, in circumstances such as those of the present case, such a procedural rule is to be set aside on the grounds that it stands in the way of correct implementation of the Court’s judgment (3).

1.      The national courts’ duties following a preliminary ruling

59.      It is settled case-law that a preliminary ruling of the Court is binding on the national court, as regards the interpretation or the validity of the acts of the European Union institutions in question, for the purposes of the decision to be given in the main proceedings. (19) Article 267 TFEU requires the referring court to give full effect to the interpretation of EU law provided by the Court. (20)

60.      Beyond that type of binding effect of a preliminary ruling, which could be classified as inter partes, the case-law of the Court only ever explicitly confirmed the erga omnes binding force of declarations of invalidity of EU-law provisions. (21)

61.      However, the same inter partes logic also fully extends to any subsequent judicial stages within the same main proceedings. Thus, if the guidance from this Court was requested by, for example, a first-instance court, then a court of appeal or a supreme court being seised later of the same case would also be bound by the guidance issued by the Court in that case. To my mind, that is an extension of the inter partes binding effect, because what is being resolved is still the same case with the same facts and legal questions posed. It is not the (by its nature ‘looser’) erga omnes effect in other cases concerning other facts and parties but interpreting the same legal provisions of EU law. (22)

62.      That notably means, in practice, that if the interpretative statement contained in a preliminary ruling requires the national court to complete a certain type of assessment, that assessment must then be carried out in order to ensure the correct implementation of that judgment and, thereby, the proper application of EU law. (23) That is a fortiori the case when the Court explicitly leaves it, in the operative part of the judgment, to the referring court to verify certain elements in order to establish the compatibility of national law with EU law.

2.      National procedural autonomy and effectiveness

63.      In its submissions, the Hungarian Government relies extensively on the principle of national procedural autonomy to stress that it is for each Member State to shape procedural rules and remedies. It further maintains that in previous cases, including a decision relating to Hochtief AG, (24) the Court accepted various procedural limitations on judicial review as to the time when an action may be brought and under what conditions.

64.      It is indeed established case-law that, in the absence of EU legislation in this area, it is for each Member State, in accordance with the principle of procedural autonomy, to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions at law for safeguarding the rights which individuals derive from EU law. However, it is also settled case-law that, in accordance with the principle of sincere cooperation enshrined in Article 4(3) TEU, the detailed procedural rules governing actions for safeguarding an individual’s rights under EU law must be no less favourable than those governing similar domestic actions (the requirement of equivalence) and must not render impossible in practice or excessively difficult the exercise of rights conferred by EU law (the requirement of effectiveness). (25)

65.      In addition, any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of EU law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent EU rules from having full force and effect are incompatible with those requirements which are the very essence of the European Union. (26) In particular, national rules of procedure cannot affect the powers and obligations conferred on a national court under Article 267 TFEU. (27)

66.      Applied to the issue of the structuring of national systems of appeals and remedies, the case-law of the Court very much respects the different national legal traditions and the diversity of the Member States’ administrative and judicial systems. Thus, a national judicial system can be more inquisitorial or more adversarial and decide to what extent it applies the iura novit curia maxim. Equally, the ambit of judicial review can normally be limited to the pleas that were raised by the parties at the stage of the administrative review.

67.      As stated by the Court, EU law does not require national courts to raise of their own motion an issue concerning the breach of provisions of EU law where examination of that issue would oblige them to abandon the passive role assigned to them by going beyond the ambit of the dispute defined by the parties themselves and relying on facts and circumstances other than those on which the party with an interest in application of those provisions bases his claim. (28) In particular, ‘the principle of effectiveness does not ... impose a duty on national courts to raise a plea based on a Community provision of their own motion, irrespective of the importance of that provision to the Community legal order, where the parties are given a genuine opportunity to raise a plea based on Community law before a national court’. (29)

68.      Hence, in the context of judicial review in public procurement matters, the Court recently confirmed that Member States are entitled to lay down procedural rules limiting judicial review in time or in scope to guarantee the effectiveness and swiftness of that review as long as, in doing so, they do not render practically impossible or excessively difficult the exercise of the right to bring an action. (30) Thus, according to the Court, EU law does not preclude, in the context of an action for damages, a national procedural rule which restricts the judicial review of arbitral decisions issued by the Arbitration Committee responsible at first instance for the review of decisions taken by contracting authorities in public procurement procedures to examining only the pleas raised before that committee. (31)

69.      It follows that a similar procedural limitation should also be in general possible, mutatis mutandis, in the context of an action for annulment, such as that filed in the first round of this case: under EU law, the national courts responsible for reviewing decisions of an arbitration committee called upon to examine actions for annulment against decisions adopted by contracting authorities in public procurement procedures may dismiss as inadmissible any new plea in law which was not raised before that committee.

3.      Implementing a preliminary ruling

70.      Thus, in general and in cases not involving a preliminary ruling of the Court, that is, when a case progresses normally through the national administrative and judicial system, procedural limitations of such kind are, under the conditions outlined in preceding section, indeed possible. That picture, however, changes rather markedly if, within such a procedure, guidance is issued by the Court in the form of a preliminary ruling.

71.      Contrary to the suggestions of the Hungarian Government, such a case ceases to be one primarily involving procedural limitations within the sphere of national procedural autonomy, to which the case-law discussed in the preceding section could mechanically be applied. Instead, it becomes a case involving the implementation of a judgment of the Court.

72.      What would such a different context then mean in a case like the present one? What would it mean, in particular, for the issues raised by the referring court, such as national rules preventing the taking into account of new facts at a certain level of review (Question 4) and/or the impossibility of pleading new points of law at a later stage of review if they have not been brought forward before the administrative authority (Question 5)?

73.      I wish to note at the outset that, as far as Question 5 is concerned, in the context of the present situation, the parties appear to have duly raised before the Arbitration Committee the argument as to the unsuitability of the economic requirement, which is the bone of contention. (32)

74.      However, even if that was not established as a matter of fact, which is of course for the national court to ascertain, in my view, the principled answer to both of the questions raised by the referring court is relatively straightforward: such national limitation rules can naturally be maintained, as long as it is ensured that a national court will implement and fully apply the guidance issued by the Court in the case in which the preliminary ruling was requested.

75.      This may happen in a number of ways. If the national court that requested the preliminary ruling from this Court has the necessary competence for that type of review under national law (such as to examine the suitability of the economic requirement), then it must carry out that examination itself and demonstrate in its reasoning that it has done so. Should that court have no jurisdiction to that effect, because it is, for example, an appellate court or the supreme court whose review is limited and/or cannot assess any new evidence, and any such assessment is still relevant for the case at hand, then several options might be open to such a national court. First, it might annul the decision in question and send the case back to the appropriate administrative or judicial authority that has the competence under national law to examine the suitability of the economic requirement in accordance with the preliminary ruling (that is, the first-instance court, if it is competent to assess questions of fact, or the Arbitration Committee). Alternatively, the national court in question must set aside the national procedural rules limiting its jurisdiction and carry out such assessment itself. The choice between those different options remains that of each Member State, provided that a national authority, whether administrative or judicial, ultimately ensures the correct application of the Court’s preliminary ruling. (33)

76.      However, what certainly cannot be allowed to happen is that, by the mechanical operation of national rules of limitation, the implementation of the judgment of this Court at national level turns into a proverbial catch-22, in which nobody accepts responsibility for ensuring the effective execution of a preliminary ruling of the Court.

4.      Interim conclusion

77.      It follows that Article 4(3) TEU and Article 267 TFEU require that a national court, implementing a preliminary ruling previously requested from the Court, must fully implement the guidance contained therein. If executing the Court’s guidance requires a certain type or scope of appraisal to be carried out, which is not normally carried out by the referring court in question, that court is obliged either to set aside the national procedural rules limiting its competence in that regard or to annul and remit the case to the appropriate judicial, or even administrative, level where such an assessment can be carried out in full.

C.      The (duty of) retrial

78.      Moving on to the issues relating to the second round of national litigation, Questions 3 and 6 enquire whether it is compatible with the principle of effective judicial protection not to consider as a possible ground for a retrial an allegation that a judgment of the Court given in the first round (on a request for a preliminary ruling from the appellate court) was not duly taken into account in that round. In particular, Question 3 is to be understood as enquiring as to the existence of a possible duty, deriving from EU law, of Member States to allow for a retrial, as an extraordinary remedy provided for by national law, in a case such as the one in the main proceedings. By Question 6, the referring court seeks to know whether the requirement of equivalence calls for a retrial to be allowed when a preliminary ruling of the Court has allegedly not been taken into account correctly in the main proceedings on the merits, but when, at the same time, national law apparently allows for a retrial in the similar case of a (new) judgment of the Constitutional Court.

79.      Thus, the question posed to the Court is in fact whether EU law, in particular the principle of effective judicial protection, requires the ‘reopening’ of a final judicial decision in order to take into account a previous judgment of the Court that was (allegedly) not fully taken into consideration in the litigation on the merits.

80.      In my view, the answer to that question is no.

1.      The scope of the duty to reopen final judicial decisions

81.      As outlined in the previous section of this Opinion, national courts have an obligation to implement the answer given to a request for a preliminary ruling that they themselves submit to the Court (the binding force inter partes). Furthermore, they must equally respect the case-law of the Court on the matter of interpretation or validity of EU law of which they are seised in the case at hand (the binding effects erga omnes). The common denominator in both of these cases is that the decisions of the Court that are to be taken into account exist at the moment when the national court takes a decision.

82.      By contrast, there is, in principle, no obligation under EU law to reopen final national judicial decisions that were given prior to a decision of the Court on a preliminary ruling, even if reopening the case would make it possible to remedy a domestic situation which is incompatible with EU law.

83.      Indeed, it is settled case-law that the principle of legal certainty and its emanation, the principle of res judicata, (34) are paramount both in the legal order of the European Union and in national legal systems. (35) In view of those principles, the Court has ruled that EU law does not require a judicial body automatically to go back on a judgment having the authority of res judicata in order to take into account the interpretation of a relevant provision of EU law adopted by the Court after delivery of that judgment. (36) There is thus, in general, no duty to reopen final judicial decisions incompatible with a subsequent judgment of the Court.

84.      It is true that the Court has recognised two exceptions to the principle that final decisions need not be reopened in order to comply with EU law.

85.      The first exceptional situation, which follows from Kühne & Heitz, is the obligation, imposed on administrative bodies, to review final administrative decisions in order to take account of an interpretation subsequently given by the Court, where certain conditions are met. (37) However, that exception only entails an obligation to reopen final administrative decisions, but not judicial decisions. (38)

86.      The second exceptional situation was set out by the Court in Lucchini, where it held that EU law precluded the application of a provision of national law which sought to lay down the principle of res judicata in so far as the application of that provision prevented the recovery of State aid granted in breach of EU law. (39) The underlying rationale of that exception was that, since the national decision had been adopted in breach of the division of powers between the Member States and the European Union, it could not even acquire the force of res judicata. The Court subsequently stressed the exceptional character of Lucchini, noting that it had been decided in a highly specific situation having to do with the aforementioned division of powers. (40)

87.      Neither of these exceptions appears to be immediately relevant to the present case. Thus, as a starting point, the present case defaults back to the general rule: there is no general obligation to reopen final judicial decisions in order to render them compatible with a subsequent decision of the Court. (41)

88.      However, while EU law does not impose an obligation on Member States to create new remedies, (42) if national law does provide for such a possibility, then that legislation must comply not only with the requirement of equivalence, but also with the requirement of effectiveness. (43) It is thus necessary to turn to the remedy of a retrial under national law.

2.      Retrial under national law

89.      Under Hungarian law, retrial appears to be governed by Section 260(1)(a) and (2) of the Civil Procedural Code. According to the Hungarian Government, the rules on retrial are not applicable in cases such as the present one since that remedy only aims at taking into account new factual elements, as opposed to new legal elements. By contrast, Hochtief Hungary claims that a retrial may serve to implement a preliminary ruling that was issued by the Court during the main proceedings, but was not taken into account for procedural reasons. For its part, the Commission leaves it to the referring court to determine whether Section 260(1) of the Civil Procedural Code authorises a retrial where national courts have not properly taken into account a preliminary ruling of the Court.

90.      I largely share the Commission’s stance. It is for the referring court, as the sole authoritative interpreter of national law, to determine whether, under those rules, a retrial could be possible in a case where a preliminary ruling that already existed when the final decision on the merits was issued was allegedly not properly taken into account.

91.      I would just venture two remarks. In my understanding of what the (extraordinary) remedy of a retrial generally entails, it tends to be limited to cases where, after the national decision becomes final, it emerges that certain facts were not or could not have been taken into account by the national court when it gave that decision.

92.      It would be somewhat surprising to apply that logic to an interpretative judgment of the Court that existed and was known at the moment when the previous decision on the merits was given. First, such a decision is hardly a new fact. Second, that decision undoubtedly existed and was known at the moment of the original decision on the merits, thus could hardly be classified as something new that came to light only later on.

93.      Thus, prima facie and on a general understanding of what a retrial tends to entail, it is difficult to see how that extraordinary remedy should be used to remedy alleged shortcomings in the proper application of interpretative legal guidance that clearly existed and was known when the original national decision was issued.

3.      Equivalence to constitutional complaints?

94.      However, an additional argument has to be addressed in this context: suggested equivalence with regard to constitutional complaints. According to Hochtief Hungary, a retrial should have been authorised in the circumstances of the present case, on the grounds that a preliminary ruling of the Court was not taken into account, because national law provides for a retrial where the Alkotmánybíróság (Constitutional Court) subsequently declares unconstitutional a norm that was applied by an ordinary court in its final judicial decision. It is in this context that the national court refers, in Question 6, to the judgment of the Court in Transportes Urbanos y Servicios Generales.

95.      Transportes Urbanos y Servicios Generales admittedly bears some similarities to the present case. In that decision, the Court held that EU law, and in particular the principle of equivalence, precluded the application of a rule according to which actions for damages against the State, alleging a breach of EU law established by a judgment of the Court, were subject to a condition requiring prior exhaustion of remedies against a harmful administrative measure, when those actions were not subject to such a condition where they alleged a breach of the Constitution established by the Constitutional Court. (44) However, it should be noted that the Court reached that conclusion after having observed that the only difference between those two actions was the fact that the breaches of law on which they were based were established, respectively, by the Court and by the Constitutional Court. The Court concluded that that fact alone, in the absence of any other difference between both actions, could not suffice to establish a distinction between them in the light of the principle of equivalence. (45)

96.      Recently, in XC and Others, the Court insisted on the importance of a clear similarity between the actions at issue, in terms of their purpose, cause of action and essential characteristics, in order for the principle of equivalence to be triggered. (46) The Court then examined, in the light of those elements, whether an action permitting the retrial of criminal proceedings, closed by a decision that acquired the force of res judicata, on the basis of a subsequent finding of an infringement of the European Convention for the Protection of Human Rights and Fundamental Freedoms or one of the protocols thereto, on the one hand, and an action for protecting rights which individuals derive from EU law, on the other hand, could be regarded as similar actions.

97.      The Court concluded that the differences between those actions were such they could not be regarded as similar. It noted in particular that the former action was essentially created in order to permit the reopening of decisions having the force of res judicata. By contrast, the constitutional framework of the European Union guarantees everyone the opportunity to obtain the effective protection of rights conferred by the EU legal order before a national decision with the force of res judicata even comes into existence. (47)

98.      Similarly to XC and Others, the national provision invoked in the present case allowing for the reopening of a final national judgment as a result of a new decision of the Constitutional Court, is a consequence of the mechanism of constitutional review, as stated in Section 361(a) of the Civil Procedural Code. Indeed, that provision, which sets out an exceptional remedy permitting a decision of the Constitutional Court to be taken into account, can only be used in respect of the specific judgment that, once becoming final, gave rise to the constitutional complaint. Put differently, in cases in which such (abstract) constitutional review is possible only following a final judicial decision, the only way of reflecting that constitutional review and potentially removing the unconstitutionality in the individual case is by reopening it.

99.      The mechanism and logic of that requirement to reopen a judgment is very different from the preliminary ruling mechanism, which by definition operates while the national procedure is still pending and before any final national decision can be taken. Thus, there is no need to reopen a final decision in order for the guidance of the Court to be taken into account.

100. For these reasons, as I recently argued in further detail in Călin, the execution and inter partes binding effects of a preliminary ruling of this Court on the one hand, and of a judgment of a national constitutional court on a constitutional review on the other (or, for that matter, of a decision of the European Court of Human Rights in the case at national level giving rise to a complaint) are structurally different remedies. (48) Their purpose, cause of action and essential characteristics are simply different.

101. It may be added that the situation could be different if national law were to allow for a preliminary review of constitutionality upon a reference by a national court to the Alkotmánybíróság (Constitutional Court). In this respect, if I understand the argument correctly, the Hungarian Government appeared to suggest at the hearing that a retrial was also authorised if the decision of the Alkotmánybíróság (Constitutional Court) was not delivered subsequent to the final judicial decision in the main proceedings but before it, within those proceedings on the merits. (49)

102. I must confess to being somewhat lost on that point. If that were the case, and indeed a number of national constitutional systems (also) recognise a preliminary review of constitutionality, typically triggered by a reference from a national (ordinary) judge, I have difficulty seeing how the rules on retrial would be relevant in such cases. One would rather assume that, following such a preliminary reference on constitutionality, the ordinary judge awaits the decision of the constitutional court and then, once that decision is given, determines the original dispute while implementing the judgment of the national constitutional court. If that is the case, then such a preliminary review of constitutionality could indeed be functionally equivalent to a request for a preliminary ruling to this Court. However, there would then be little need for any specific rules on retrial for that kind of procedure.

103. Be that as it may, if the referring court were to find that (i) the national rules on retrial do also include decisions of the Alkotmánybíróság (Constitutional Court) given during the main proceedings, that is, before the final decision on the merits is taken by an ordinary court, and that (ii) on the application of the criteria concerning the requirement of equivalence outlined in this section, such a type of review is indeed equivalent to implementing a prior decision of the Court given on a request for a preliminary ruling, then the requirement of equivalence would require that a retrial is also authorised in the latter type of situation.

4.      A direct or indirect application of Kühne & Heitz?

104. A last point to be addressed in connection with retrial concerns Kühne & Heitz. (50)That decision has indeed been abundantly quoted by the referring court, as well as by the parties in the written and oral procedure before the Court.

105. That case established an obligation, under EU law, to re-examine final administrative decisions if (i) under national law, the administrative body has the power to reopen that decision; (ii) the administrative decision in question has become final as a result of a judgment of a national court ruling at final instance; (iii) that judgment is, in the light of a decision given by the Court subsequent to it, based on a misinterpretation of EU law which was adopted without a question being referred to the Court for a preliminary ruling; and (iv) the person concerned complained to the administrative body immediately after becoming aware of that decision of the Court. (51)

106. While Hochtief Hungary maintained that this line of case-law should also apply to final judicial decisions by analogy, the Commission suggested at the hearing that a direct application of that logic could perhaps be contemplated with regard to the (administrative) decision of the Arbitration Committee. I will examine both scenarios in this subsection.

107. First, as regards a potential application by analogy (or extension) of Kühne & Heitz to the present case, the conditions set out by the Court in that judgment clearly aim at a different and rather specific scenario, namely the reopening of a final administrative, not judicial, decision, following a subsequent preliminary ruling of the Court.

108. Even if it were assumed that the same logic could apply to final judicial decisions, (52) at least the first and third conditions laid down by the Court in that judgment would still not be fulfilled: under national law, retrial is certainly an available remedy, yet it is apparently not designed to cover the type of situation at issue in the present case; furthermore, the decision given by the Court was not subsequent to the final judicial decision, but was issued prior to it.

109. Moreover, although not expressly stated as one of the conditions, the obligation to reopen national administrative decisions set out in Kühne & Heitz has always had the flavour of an indirect sanction for the failure of the national court having reviewed that decision to comply with the duty to make a request for a preliminary ruling. By contrast, in the present case the Fővárosi Ítélőtábla (Budapest Regional Court of Appeal) did make such a request.

110. Finally and on a subsidiary note, if Kühne & Heitz is read in the light of the more recent approach of the Court as regards the reopening of judicial decisions in XC and Others, then the former case indeed ought to remain the exception applicable to administrative authorities only. Indeed, the direction taken in XC and Others confirms that in the interplay between, on the one hand, the effective enforcement of EU law and, on the other hand, respect for the principles of legal certainty and finality of (judicial) decisions, the balance clearly tilts in favour of the latter.

111. I thus consider that any further extension of Kühne & Heitz (or its application by analogy to final judicial decisions) is not called for.

112. Second, as regards the Commission’s suggestion of a direct application of Kühne & Heitz in the context of the present case by reopening the final administrative decision, namely that of the Arbitration Committee, (53) I am not convinced either. Apart from the fact that it is not at all at issue, and in view of the lack of information regarding potential national law rules providing for the reopening of administrative decisions, it appears that the facts of the present case differ substantially from the facts of Kühne & Heitz.

113. In Kühne & Heitz, the issue of the existence of an eventual duty to take a judgment of the Court into consideration was raised at a moment when both the administrative procedure and the subsequent judicial procedure were closed. All the decisions made in the course of those procedures were therefore final. By contrast, in the present case, the preliminary ruling of the Court came at a moment when only the administrative procedure was closed and hence the administrative decision was final. The judicial procedure, however, was still pending. For that reason, but also having regard to the factual circumstances of that case, as confirmed by the very detailed conditions set out by the Court in Kühne & Heitz in order to justify the duty to reopen the administrative decision, it appears that those conditions are not fulfilled.

5.      Interim conclusion

114. In view of these considerations, I conclude that the principle of effective judicial protection does not require authorising a retrial, as an extraordinary remedy, in the circumstances of the present case, in order to implement a preliminary ruling of the Court issued in the main proceedings that was allegedly not fully taken into account within those proceedings on the merits. However, should a national system provide for a remedy allowing for the possibility or even the duty to reopen final decisions given in similar cases at national level, the requirement of equivalence would require that such a possibility also be open for infringements relating to preliminary rulings of the Court previously issued in the same case.

D.      Member State liability

115. Finally, by Questions 1, 2, 8, and 10, the referring court seeks guidance on a number of issues pertaining to the third round of the national litigation, concerning potential Member State liability.

116. Under Question 1, the referring court enquires into the general aspects of Member State liability on the grounds of national courts’ judgments: is Member State liability to be determined on the basis of EU law only or also on the basis of national law, in particular as regards the assessment of the conditions to incur liability? Under Question 2, the referring court seeks to determine whether, in the case of a national court’s judgment being incompatible with EU law, Member State liability can be incurred despite the res judicata attached to that judgment.

117. The answers to these two questions can be inferred from the case-law with relative ease.

118. It is settled case-law that individuals relying on EU law must have the possibility of obtaining redress in the national courts for the damage caused by the infringement of those rights owing to a decision of a court adjudicating at last instance. (54)

119. As to the conditions to be satisfied, the Court has held that they are threefold: the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation incumbent on the State and the loss or damage sustained by the injured parties. (55)

120. Those three conditions are necessary and sufficient to establish, as a matter of EU law, a right in favour of individuals to obtain redress. However, Member States may provide for less strict conditions for State liability to be triggered. Subject to the existence of a right to obtain reparation which is founded directly on EU law where the conditions mentioned above are met, it is on the basis of the rules of national law on liability that the State must make reparation for the consequences of the loss and damage caused, with the proviso that the conditions for reparation of loss and damage laid down by the national legislation must not be less favourable than those relating to similar domestic claims and must not be so framed as to make it in practice impossible or excessively difficult to obtain reparation. (56)

121. In addition, it is equally clear from the case-law that the principle of res judicata does not preclude recognition of the principle of State liability for a decision of a court adjudicating at last instance. (57)

122. Thus, in answer to Question 1, Member State liability can only be determined on the basis of the conditions set out by EU law, although national law may lay down less strict conditions. As regards Question 2, the principle of res judicata does not preclude recognition of the principle of State liability for a decision of a court adjudicating at last instance.

123. By Question 10, the referring court enquires whether, under the principles of State liability in EU law, damages (in the form of reimbursement of the legal costs incurred) can be claimed for the harm caused by the fact that the court of last instance has refused to reopen the case. In other words, is there any limitation as to the type of damages that may be claimed for the alleged breach of EU law by a last-instance court?

124. The uncertainty as to the exact source of the limitations alluded to in Question 10 was dispelled at the hearing, where both Hochtief Hungary and the Hungarian Government confirmed that those limitations resulted from the national case‑law.

125. Having clarified the source of the limitations as to the type of damages recoverable, it appears rather clear to me that such limitations would be incompatible with EU law. It is indeed impossible to limit the damages that can be sought. According to the Court, the rules on the assessment of damage caused by a breach of EU law are determined by the national law of each Member State, it being understood that the national regulations fixing those rules must respect the requirements of equivalence and effectiveness. (58) Thus, so long as the three conditions for Member State liability, as laid down under EU law, are met, then any and all damages must be recoverable, including legal costs.

126. That being said, while the type of damages claimed cannot be used to establish a ‘block exclusion’ of a certain type of damage per se, the exact type of damage sought by an applicant will of course be relevant on a different level, namely, for ascertaining a direct causal link between that damage and the ‘sufficiently serious infringement’ of EU law reproached.

127. By Question 8, the referring court seeks to know whether, in the circumstances of the present case, the refusal by a court of last instance (the defendant) to request a preliminary ruling, upon a party’s request, as to whether a retrial should have been granted is constitutive of a ‘sufficiently serious infringement of EU law’ that can trigger Member State liability. In the second part of the question, the referring court further asks to what extent a national court must state reasons for its decision not to refer in the light of the judgment in CILFIT. (59)

128. The answer to that question is somewhat more complex.

129. It must be recalled at the outset that it is not the role of the Court to decide on the potential liability of a Member State in a specific case. However, the Court can give guidance regarding the application of the liability criteria, notably that of a ‘sufficiently serious infringement’ of EU law.

130. Furthermore, it may also be useful to recall that whether or not a reference to this Court is made is the exclusive privilege and responsibility of a national judge. The parties to the main proceedings may of course make a suggestion in this regard, but they have no right to request a preliminary ruling from the Court. (60)

131. With those preliminary clarifications made, and again regardless of a number of factual statements that the referring court embedded in its question, which are not for this Court to comment upon, the question of the referring court mentions two further variables: the ‘Köbler standard’ of ‘sufficiently serious infringement’ and the ‘CILFIT standard’ for the courts of last instance to be allowed to dispense with making a request for a preliminary ruling under the third paragraph of Article 267 TFEU.

132. The ‘Köbler standard’ adapts the condition of ‘sufficiently serious breach’ to potential judicial misapplication of EU law. According to the Court, in order to determine whether there is a sufficiently serious breach of EU law, it is necessary to take account of all the factors which characterise the situation brought before the national court. Among the factors which can be taken into consideration in that regard are, in particular, the degree of clarity and precision of the rule infringed, the scope of the room for assessment that the infringed rule allows for national authorities, whether the infringement and the damage caused were intentional or involuntary, whether any error of law was excusable or inexcusable, and the fact that the position taken by an EU institution may have contributed to the adoption or maintenance of national measures or practices contrary to EU law, and non-compliance by the court in question with its obligation to make a request for a preliminary ruling under the third paragraph of Article 267 TFEU. In any event, an infringement of EU law is deemed sufficiently serious where it was made in manifest breach of the case-law of the Court in the matter. (61)

133. The ‘CILFIT standard’ focuses specifically on courts of last instance and their potential disregard for the duty to refer. According to the Court, under the third paragraph of Article 267 TFEU, a court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of EU law is raised before it, to comply with its obligation to bring the matter before the Court, unless it has established that the question raised is irrelevant or that the EU provision in question has already been interpreted by the Court or that the correct application 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 specific characteristics of EU law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the European Union. (62) Accordingly, every provision of EU law, including the case-law of the Court in the relevant area, must be placed in its context and interpreted in the light of the provisions of EU law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied. (63)

134. Much could be written about the need for (i) re-interpreting CILFIT in order to make it relevant again (if, in fact, it ever was (64)); (ii) being clear about the exact relationship between the Köbler conditions and the CILFIT conditions, and ideally integrating them into one coherent whole; (65) (iii) while also integrating and taking into account the standard to be applied to potential failures of last-instance courts if pursued via infringement proceedings under Article 258 TFEU. (66)

135. This is, however, hardly the right case for such endeavours. For the purposes of the referring court in the present case, it suffices to recall that the standard by which any such potential matter of state liability is to be assessed is that of the Köbler criteria, outlined above in point 132 of this Opinion. For that purpose, it is not the CILFIT standard, but simply ‘manifest breach of the case-law of the Court in the matter’ (67) that will amount to a sufficiently serious infringement of EU law. Whether or not the failure of the national court in question was indeed so manifest as to amount to blatant disregard for the case-law of the Court, by either omitting to engage with EU law at all or interpreting it in an obviously untenable way, will again be for the referring court to ascertain.

V.      Conclusion

136. In the light of the aforementioned considerations, I propose that the Court answer the questions posed by the Székesfehérvári Törvényszék (Székesfehérvár High Court, Hungary) as follows:

–        Article 4(3) TEU and Article 267 TFEU require that a national court, when implementing a preliminary ruling previously requested from the Court, must fully implement the guidance contained therein. If executing the Court’s guidance in a preliminary ruling requires a certain type or scope of appraisal to be carried out, which is not normally carried out at the level of the referring court in question, that court is obliged either to set aside the national procedural rules limiting its competence in that regard or to annul and remit the case to the appropriate judicial, or even administrative, level to conduct that appraisal;

–        The principle of effective judicial protection does not require authorising a retrial, as an extraordinary remedy, in order to implement a preliminary ruling of the Court that was allegedly not fully taken into account in the previous proceedings on the merits in the course of which the preliminary ruling was issued. However, should national law provide for a remedy allowing for the possibility or the duty to reopen final decisions given in similar cases at national level, the requirement of equivalence would require that such a possibility or duty also be extended to decisions of the Court previously issued in the same case;

–        The EU rules and principles on Member State liability must be interpreted as meaning that:

–        a declaration of liability on account of a breach of EU law by a (last‑instance) national court is to be based on the criteria laid down by EU law;

–        the principle of res judicata attached to a decision of a court adjudicating at last instance that infringed EU law does not preclude recognition of State liability for that infringement;

–        national law cannot exclude the possibility of certain types of damages being claimed, if it were established that such damages are the direct consequence of a sufficiently serious infringement of EU law;

–        an infringement of EU law by a court of last instance refusing to make a reference contrary to the third paragraph of Article 267 TFEU will be sufficiently serious where it was made in manifest breach of the case‑law of the Court in the matter before that court.

1      Original language: English.

2      Judgment of 18 October 2012, Édukövízig and Hochtief Construction (C‑218/11, EU:C:2012:643).

3      Council Directive of 21 December 1989 (OJ 1989 L 395, p. 33) (‘Directive 89/665’).

4      Council Directive of 25 February 1992 (OJ 1992 L 76, p. 14) (‘Directive 92/13’).

5      S Series, No 139‑149325.

6      Judgment of 18 October 2012, Édukövízig and Hochtief Construction (C‑218/11, EU:C:2012:643, paragraph 32).

7      Directive of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665 and 92/13.

8      See, for example, judgments of 31 January 2017, Lounani (C‑573/14, EU:C:2017:71, paragraph 56); of 8 March 2018, Saey Home & Garden (C‑64/17, EU:C:2018:173, paragraph 18); and of 13 June 2018, Deutscher Naturschutzring (C‑683/16, EU:C:2018:433, paragraph 29).

9      See, for example, judgments of 11 September 2014, B. (C‑394/13, EU:C:2014:2199, paragraph 21 and the case-law cited), and of 26 April 2017, Farkas (C‑564/15, EU:C:2017:302, paragraph 38).

10      See, for example, judgments of 18 July 2007, Lucchini (C‑119/05, EU:C:2007:434, paragraph 43); of 26 May 2011, Stichting Natuur en Milieu and Others (C‑165/09 to C‑167/09, EU:C:2011:348, paragraph 47); and of 26 April 2017, Farkas (C‑564/15, EU:C:2017:302, paragraph 37).

11      See, for example, judgments of 31 January 2017, Lounani (C‑573/14, EU:C:2017:71, paragraph 56); of 8 March 2018, Saey Home & Garden (C‑64/17, EU:C:2018:173, paragraph 18); and of 13 June 2018, Deutscher Naturschutzring (C‑683/16, EU:C:2018:433, paragraph 29).

12      Cited above in footnotes 8 and 9.

13      I wish to stress that the term ‘round’ is just my shorthand for the three distinct phases of litigation in the context of the present case.

14      It is to be noted that that stage might also be relevant for another reason in the present context since the Commission suggested at the hearing that there could perhaps be a duty, on the basis of the Kühne & Heitz line of case-law, to reopen the administrative review before the Arbitration Committee (see below, Section C of this Opinion).

15      Outlined above, points 30 and 37 of this Opinion.

16      Above, points 31 to 36.

17      OJ 2018 C 22, p. 26.

18      Again, as already outlined in general above, in point 36, assessing the general compatibility of the rules, while not endorsing or confirming that any such failure has actually happened in the individual case. Any such assessment is for the referring court to make.

19      See, for example, judgments of 5 October 2010, Elchinov (C‑173/09, EU:C:2010:581, paragraph 29), and of 16 June 2015, Gauweiler and Others (C‑62/14, EU:C:2015:400, paragraph 16).

20      See, for example, judgment of 5 July 2016, Ognyanov (C‑614/14, EU:C:2016:514, paragraph 28).

21      See, for example, regarding the effects of a preliminary ruling declaring the act of an institution to be void, judgments of 13 May 1981, International Chemical Corporation (66/80, EU:C:1981:102, paragraphs 12 to 13), and of 27 February 1985, Société des produits de maïs (112/83, EU:C:1985:86, paragraph 16).

22      See, for example, judgments of 27 March 1963, Da Costa and Others (28/62 to 30/62, EU:C:1963:6), and of 4 November 1997, Parfums Christian Dior (C‑337/95, EU:C:1997:517, paragraph 29).

23      That of course does not preclude the referring court, or any other national court deciding in the same proceedings, from requesting another decision from the Court, should they be of the opinion that such a request is for whatever reason necessary — see, for example, judgments of 24 June 1969, Milch-, Fett- und Eierkontor (29/68, EU:C:1969:27, paragraph 3), and of 11 June 1987, X (14/86, EU:C:1987:275, paragraph 12). As stated in Article 104(2) of the Rules of Procedure of the Court of Justice: ‘It shall be for the national courts or tribunals to assess whether they consider that sufficient guidance is given by a preliminary ruling, or whether it appears to them that a further reference to the Court is required.’ Put more bluntly, following a decision of the Court, the options left to the referring court are either to apply the guidance or to refer again in the case of disagreement. Ignoring the guidance issued is not an option.

24      Judgment of 7 August 2018, Hochtief (C‑300/17, EU:C:2018:635).

25      See, for example, judgments of 10 July 2014, Impresa Pizzarotti (C‑213/13, EU:C:2014:2067, paragraph 54); of 6 October 2015, Târșia (C‑69/14, EU:C:2015:662, paragraphs 26 to 27); and of 24 October 2018, XC and Others (C‑234/17, EU:C:2018:853, paragraphs 21 to 22).

26      See, for example, judgments of 9 March 1978, Simmenthal (106/77, EU:C:1978:49, paragraph 22); of 22 June 2010, Melki and Abdeli (C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 44); and of 4 December 2018, The Minister for Justice and Equality and Commissioner of the Garda Síochána (C‑378/17, EU:C:2018:979, paragraph 36).

27      See, for example, judgments of 5 October 2010, Elchinov (C‑173/09, EU:C:2010:581, paragraph 25); of 15 January 2013, Križan and Others (C‑416/10, EU:C:2013:8, paragraph 67); and of 18 July 2013, Consiglio Nazionale dei Geologi and Autorità Garante della Concorrenza e del mercato (C‑136/12, EU:C:2013:489, paragraph 32).

28      See, for example, judgments of 14 December 1995, van Schijndel and van Veen(C‑430/93 and C‑431/93, EU:C:1995:441, paragraph 22); of 7 June 2007, van der Weerd and Others (C‑222/05 to C‑225/05, EU:C:2007:318, paragraph 36); and of 26 April 2017, Farkas (C‑564/15, EU:C:2017:302, paragraph 32).

29      Judgment of 7 June 2007, van der Weerd and Others (C‑222/05 to C‑225/05, EU:C:2007:318, paragraph 41).

30      See judgment of 7 August 2018, Hochtief (C‑300/17, EU:C:2018:635, paragraphs 50 to 54 and the case-law cited).

31      See judgment of 7 August 2018, Hochtief (C‑300/17, EU:C:2018:635, paragraph 58).

32      Point 11 of this Opinion.

33      That is, clearly not allowing for a ‘negative competence conflict’, in which no body or court will eventually accept responsibility — see, in a similar vein, my Opinion in Link Logistik N&N (C‑384/17, EU:C:2018:494, points 111 to 112).

34      Judgment of 1 June 1999, Eco Swiss (C‑126/97, EU:C:1999:269, paragraph 46).

35      For a recent example, see judgment of 24 October 2018, XC and Others (C‑234/17, EU:C:2018:853, paragraph 52). See also judgment of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513, paragraph 38); of 16 March 2006, Kapferer (C‑234/04, EU:C:2006:178, paragraph 20); of 10 July 2014, Impresa Pizzarotti (C‑213/13, EU:C:2014:2067, paragraph 58); or of 6 October 2015, Târșia (C‑69/14, EU:C:2015:662, paragraph 28).

36      See, for example, judgments of 10 July 2014, Impresa Pizzarotti (C‑213/13, EU:C:2014:2067, paragraph 60), and of 6 October 2015, Târșia (C‑69/14, EU:C:2015:662, paragraph 38).

37      See judgment of 13 January 2004 (C‑453/00, EU:C:2004:17, paragraph 28).

38      See judgment of 16 March 2006, Kapferer (C‑234/04, EU:C:2006:178, paragraph 23).

39      Judgment of 18 July 2007 (C‑119/05, EU:C:2007:434, paragraph 63).

40      Judgment of 10 July 2014, Impresa Pizzarotti (C‑213/13, EU:C:2014:2067, paragraph 61).

41      That, to my knowledge, is indeed a general principle of law common to the Member States, since in the national legal systems that I am aware of, a subsequent change in (clarification of or departure from) the case-law of a higher/supreme court is not normally considered to be a sufficient ground for reopening previous final decisions in which the previous legal opinion was applied.

42      Judgment of 24 October 2018, XC and Others (C‑234/17, EU:C:2018:853, paragraph 51).

43      See for example, judgments of 10 July 2014, Impresa Pizzarotti (C‑213/13, EU:C:2014:2067, paragraph 62), and of 6 October 2015, Târșia (C‑69/14, EU:C:2015:662, paragraph 30).

44      Judgment of 26 January 2010 (C‑118/08, EU:C:2010:39, paragraphs 46 and 48).

45      Judgment of 26 January 2010, Transportes Urbanos y Servicios Generales (C‑118/08, EU:C:2010:39, paragraphs 43 and 44).

46      Judgment of 24 October 2018, XC and Others (C‑234/17, EU:C:2018:853, paragraph 27).

47      Judgment of 24 October 2018, XC and Others (C‑234/17, EU:C:2018:853, paragraphs 33, 46 and 47).

48      See my Opinion in Călin (C‑676/17, EU:C:2019:94, points 66 to 79).

49      It shall be noted in this respect that Section 260(1)(a) of the Civil Procedural Code indeed does not only refer to new facts but also to ‘any final court or administrative decision’ as conditions to submit a request for a retrial. What exactly that turn of the phrase involves is again a matter for the national court.

50      Judgment of 13 January 2004 (C‑453/00, EU:C:2004:17).

51      See judgment of 13 January 2004, Kühne & Heitz (C‑453/00, EU:C:2004:17, paragraph 28).

52      Which would already be quite a leap: as outlined above (points 82 to 87 of this Opinion), in contrast to the potential administrative (mis)application of EU law, the approach of the Court has always been much more cautious as regards the balance between legal certainty (and res judicata) and the requirement of effective enforcement of EU law applied to judicial decisions, leaning much more towards the former.

53      It is to be noted that the Arbitration Committee carries out the administrative review and has thus quasi-judicial functions. It is therefore uncertain whether it can be characterised as an administrative body within the meaning of Kühne & Heitz. But if the administrative body were to be the contracting authority that actually ran the tendering procedure, the same logic could be said to apply, just one level lower.

54      See, for example, judgments of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513, paragraph 36); of 13 June 2006, Traghetti del Mediterraneo (C‑173/03, EU:C:2006:391, paragraph 31); and of 28 July 2016, Tomášová (C‑168/15, EU:C:2016:602, paragraph 20).

55      See, for example, judgments of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513, paragraph 51); of 13 June 2006, Traghetti del Mediterraneo (C‑173/03, EU:C:2006:391, paragraphs 42 and 45); and of 28 July 2016, Tomášová (C‑168/15, EU:C:2016:602, paragraphs 22 to 23).

56      See, for example, judgments of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513, paragraphs 57 to 58); of 13 June 2006, Traghetti del Mediterraneo (C‑173/03, EU:C:2006:391, paragraphs 44 to 45); and of 28 July 2016, Tomášová (C‑168/15, EU:C:2016:60, paragraph 38).

57      See, for example, judgments of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513, paragraph 40); of 28 February 2018, ZPT (C‑518/16, EU:C:2018:126, paragraph 22); and of 24 October 2018, XC and Others (C‑234/17, EU:C:2018:853, paragraph 58).

58      See, for example, judgment of 28 July 2016, Tomášová (C‑168/15, EU:C:2016:602, paragraphs 38 to 39).

59      Judgment of 6 October 1982, Cilfit and Others (283/81, EU:C:1982:335).

60      See, for example, judgment of 22 June 2010, Melki and Abdeli (C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 63), and order of 16 July 2015, Striani and OthersStriani and OthersStriani and Others (C‑299/15, not published, EU:C:2015:519, paragraph 33).

61      See, for example, judgments of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513, paragraph 54 to 56), and of 28 July 2016, Tomášová (C‑168/15, EU:C:2016:602, paragraphs 25 to 26).

62      See judgments of 6 October 1982, Cilfit and Others (283/81, EU:C:1982:335, paragraph 21); of 18 October 2011, Boxus and Others (C‑128/09 to C‑131/09, C‑134/09 and C‑135/09, EU:C:2011:667, paragraph 31); and of 28 July 2016, Association France Nature Environnement (C‑379/15, EU:C:2016:603, paragraph 50).

63      See, for example, judgment of 28 July 2016, Association France Nature Environnement (C‑379/15, EU:C:2016:603, paragraph 49).

64      I cannot but refer back to the wise words of Advocate General Jacobs uttered already in 1997 in Wiener SI (C‑338/95, EU:C:1997:352) in this regard. See also Opinion of Advocate General Ruiz-Jarabo Colomer in Gaston Schul Douane-expediteur (C‑461/03, EU:C:2005:415, point 44 et seq.).

65      In particular also in view of the more recent case-law that appears to be embracing a more ‘liberal’ approach to the duty to refer — see notably judgment of 9 September 2015, Ferreira da Silva e Brito and Others (C‑160/14, EU:C:2015:565, paragraphs 41 to 42).

66      Recently see judgment of 4 October 2018, Commission v France (Advance payment) (C‑416/17, EU:C:2018:811, paragraphs 111 to 113).

67      Judgments of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513, paragraph 56); of 12 December 2006, Test Claimants in the FII Group Litigation (C‑446/04, EU:C:2006:774, paragraph 214); of 25 November 2010, Fuß (C‑429/09, EU:C:2010:717, paragraph 52); and of 28 July 2016, Tomášová (C‑168/15, EU:C:2016:602, paragraph 26).

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