Background
I-Sete challenged two December 2024 decisions by EDIA awarding contracts to competing undertakings for floating photovoltaic power plants at pumping stations in Portugal. The contracts were the subjects of Joined Cases C-266/25 and C-267/25. EDIA said that EUR 45 million in financing from the Council of Europe Development Bank depended on completion of the projects by 31 December 2025.
Portuguese law automatically suspended the award decisions when they were challenged promptly, but allowed a court to lift that suspension provisionally within 48 hours, without first hearing the unsuccessful tenderer. Lifting was mandatory upon summary findings that ten working days had elapsed and that European funding was at risk—a risk presumed from proof that the contract formed part of a funded project. The Portuguese court asked whether EU procurement-remedies law permitted that procedure.
The Court’s Holding
The Court held that Article 2(3) to (5) of Directive 89/665/EEC, read in light of Article 47 of the Charter of Fundamental Rights, precludes legislation requiring a court to lift automatically the suspensive effect of a procurement challenge, at the contracting authority’s request, without first hearing the unsuccessful tenderer and without weighing all relevant interests on their merits.
Although accelerating procurement to avoid losing European financing can serve a recognized public-interest objective, the Portuguese scheme undermined the essence of effective judicial protection. It effectively replaced automatic suspension with automatic lifting, could permit execution of the contract before meaningful interim review, and denied the court the discretion required to balance the tenderer’s interests, the contracting authority’s interests, the successful tenderer’s interests, and the public interest. The risk of losing European funds cannot by itself systematically determine that balance in the contracting authority’s favor.
Key Takeaways
- A court reviewing interim relief in a procurement dispute must be able to conduct a case-specific balancing of all affected interests.
- An unsuccessful tenderer must have an opportunity to be heard before suspension is lifted in circumstances that could allow the contract to be concluded.
- The risk of losing European funding may be considered, but it cannot automatically or conclusively justify lifting suspensive protection.
Why It Matters
The judgment limits Member States’ ability to accelerate EU-funded procurement by weakening precontractual remedies. National procedures must preserve genuine judicial control before an award becomes potentially irreversible.
For contracting authorities and bidders, funding deadlines remain relevant but do not displace the procedural safeguards required by Directive 89/665 and Article 47 of the Charter.