Cerejeira Namora Marinho Falcão wins at CJEU
The Court of Justice of the European Union (CJEU) ruled on Wednesday, 17 September, that a Portuguese law allowing the automatic suspensive effect of contract award decisions to be lifted without hearing the losing bidder is incompatible with EU law. Cerejeira Namora, Marinho Falcão represented the party behind the litigation that triggered the ruling.
Article 25-A of Law 30/2021, of 21 May, which approved special public procurement measures tied to the Recovery and Resilience Plan (PRR), allowed contracting authorities to immediately halt the automatic suspensive effect triggered by a challenge to a contract award, without hearing the opposing party and simply by invoking the risk of losing European funding.
The CJEU found that the urgency of public tenders and the fear of losing European funds cannot justify a national court lifting the suspensive effect of a challenge “without prior hearing of the unsuccessful bidder that brought the action and without being able to weigh, on the merits, all the interests at stake.”
Impact on Portuguese procurement law
According to the Luxembourg judges, the regime set out in paragraphs 2 to 4 of Article 25-A of Law 30/2021 violates the essential content of the right to an effective remedy enshrined in Article 47 of the Charter of Fundamental Rights of the European Union, as it undermines effective judicial protection for bidders challenging award decisions in court.
The ruling calls into question dozens of ongoing judicial proceedings conducted under the exceptional regime and sets a precedent that will require the Portuguese legislature to reconsider how the execution of European funds is balanced against the procedural guarantees afforded to bidders.
The team
The Cerejeira Namora, Marinho Falcão team was led by Ricardo Maia Magalhães, partner and head of the firm’s public law practice, together with associate Tatiana Faustino Moreira.
