Judgment C‑144/17 08.02.2018 | Parties | Jurisdiction | Formation | Judge Rapporteur | Advocate General | Subject-matter |
Preliminary ruling | Lloyd’s of London v Agenzia Regionale per la Protezione dell’Ambiente della Calabria (Aparcal) | Court of Justice | Sixth Chamber | E. Regan | E. Tanchev | Public procurement - Competition law |
Keywords | Reference for a preliminary ruling — Public procurement — Articles 49 and 56 TFEU — Directive 2004/18/EC — Reasons for exclusion from a tendering procedure — Insurance services — Participation of several Lloyd’s of London syndicates in the same tendering procedure — Signature of tenders by the Lloyd’s of London General Representative for the country concerned — Principles of transparency, equal treatment and non-discrimination — Proportionality | |||||
Significant points | The General Court has annulled a decision of This preliminary ruling relates to a tendering procedure launched by an Italian public authority, Arpacal, for the award for a public service contract for insurance. Two Lloyd’s ‘syndicates’ participated in the call for tenders. Their tenders were both signed by an agent of Lloyd’s General Representative for Italy. However, Arpacal excluded those syndicates from the tender due to the fact that the submissions were signed by the same person. It considered that a single decision-making centre would infringe the principles of confidentiality of tenders, equal treatment, fair and free competition, protected under EU law by Articles 49 and 56 TFEU and Directive 2004/18 on public procurement procedures (“Public Procurement Directive”). Lloyd’s argued, however, that those principles were respected because the members, whilst acting through syndicates, did operate independently and in competition with one another despite coming under the same legal entity. Moreover, the syndicates may only act through their sole representative for each Member State. The referring court observed that the Italian legislation did not forbid submissions to public tenders being signed by the same person and asked the Court clarification in this regard. In its judgment, the Court recalled, first, that the legal grounds for exclusion from public procurement procedures set out in Article 45 of the Public Procurement Directive relate to the professional qualities of the persons concerned only. Nonetheless, the case-law of the Court has interpreted that this does not preclude the option for Member States to maintain or establish, in addition to those grounds for exclusion, substantive rules intended, in particular, to ensure, with regard to public procurement, observance of the principles of equal treatment of all tenderers and of transparency, which constitute the basis of the EU directives on public procurement procedures, provided that the principle of proportionality is observed. In that regard, the Court firstly observed that the national legislation at issue, which is intended to prevent any potential collusion between participants in the same procedure for the award of a public contract, seeks to safeguard the equal treatment of candidates and the transparency of the procedure. Consequently, the principle of proportionality requires that such legislation must not go beyond what is necessary to achieve the intended objective. The Court judged that the automatic exclusion of tenderers that are in a relationship of association with other competitors would go beyond what is necessary to prevent collusive behavior and to ensure equal treatment and transparency. An automatic exclusion would constitute an irrebuttable presumption of mutual interference and would not grant the possibility for the candidates of demonstrating that their tenders are in fact independent. Yet previous case law provides that it is of EU interest to ensure the widest possible participation by tenderers in a call for tenders. The Court concluded, therefore, that the principle of proportionality requires that the contracting authority be required to examine and assess the facts, in order to determine whether the relationship between two entities has actually influenced the respective content of the tenders submitted in the same tendering procedure, a finding of such influence, in any form, being sufficient for those undertakings to be excluded from the procedure. The Court also stated that the mere fact that tenders have been signed by the same person cannot justify their automatic exclusion from the tendering procedure. It noted in this regard that EU law applicable to insurance activities expressly allows Lloyd’s to be represented vis-à-vis third parties by a single representative for each Member State. Even though Lloyd’s may exercise its insurance activities in Member States only through the competent General Representative, the referring court must still verify that the tenders were determined and submitted independently by each syndicate. Therefore, the Court considered that the national legislation at issue was compatible with EU law, given that it does not allow an automatic exclusion, but nonetheless allows the contracting authority to exclude tenderers where it finds, on the basis of unambiguous evidence, that their tenders were not drawn up independently. |
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Noteworthy | In this judgment completely in line with the Assitur case-law (C-538/07), the Court of Justice has again emphasized the importance of the principles of transparency, equal treatment and free competition in public procurement. Any exclusions from the right to tender are to be interpreted strictly and based on a factual analysis, this respecting the principle of proportionality. The Court explained in length that the bids of undertakings linked by a relationship of control or of association should not be presumed collusive for the purpose of the EU public procurement rules and that a contracting authority had to look at the facts before any exclusion of linked undertakings. It is up to the contracting authority to establish whether the relationship between two entities has actually influenced the respective content of the tenders submitted in the same tendering procedure. It can be interesting to compare this judgement with competition law, where it is possible for undertakings which share legal or financial links but enjoy commercial autonomy to submit separate and competing tenders, provided that they do not consult each other prior to the submission of their bids, such exchanges having an anti-competitive object (see for example, in French competition law, Paris Court of Appeal, 28 October 2010, n° 2010/03405). Accordingly, it seems that a violation of competition law would be more easily retained, given that the mere false autonomy of the bids allows the existence of a cartel to be presumed, whereas an actual influence on the content of the bids seems to be required to find a violation of EU public procurement law. Further explanations regarding this apparently partial convergence might be provided by the Specializuotas transportas upcoming judgment (C‑531/16). Of particular importance to the insurance sector is the fact that Lloyd’s syndicates have the right to participate in the same tendering procedure and be represented by the same representative. This does not constitute a ground for exclusion from the procedure so long as the syndicates act independently in the formulation of their submissions. |
Category Archives: Public procurement
Tender specifications cannot oblige the tenderer to establish links of a specific legal nature with its subcontractors before the contract is awarded
Judgment C-234/14 14.01.2016 | Parties | Jurisdiction | Formation | Judge Rapporteur | Advocate General | Subject-matter |
Reference for a preliminary ruling | Ostas celtnieks SIA v. Talsu novada pašvaldība and Iepirkumu uzraudzības birojs | CJUE | 1st Ch. | A.Tizzano | M. Wathelet | Public procurement |
Keywords | Reference for a preliminary ruling — Public procurement contracts — Directive 2004/18/EC —Articles 47(2) and 48(3) — Tender specifications laying down the obligation for a tenderer to conclude a cooperation agreement or to set up a partnership with the entities on whose capacities it relies | |||||
Significant points | Articles 47(2) and 48(3) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as meaning that they preclude a contracting authority, in the tender specifications relating to the award of a public contract, from imposing on a tenderer which relies on the capacities of other entities the obligation, before the contract is awarded, to conclude a cooperation agreement with those entities or to form a partnership with them. Preliminarily, the Court recalls that according to its own case-law Articles 47(2) and 48(3) of Directive 2004/18 recognise the right of every economic operator to rely, for a particular contract, upon the capacities of other entities (subcontractors), “regardless of the nature of the links which it has with them”, provided that it proves to the contracting authority that it will have at its disposal the means and resources necessary for the execution of the contract, including those of the subcontractors which it does not itself own . It is then for the contracting authority to assess if the tenderer complies with the conditions foreseen in the contact notice by referring to the criteria set out by Directive 2004/18. In this context, Articles 47(2) and 48(3) do not permit to exclude certain types of proof nor to assume, prior to the suitability assessment carried out by the contracting authority, that the tenderer has or has not the means necessary to perform the contract. It follows that the tenderer is free to choose both the legal nature of the links it intends to establish with its subcontractors and the type of proof of the existence of those links. Therefore, by obliging the tenderer to establish links of a specific legal nature with the subcontractors before the contract is awarded, namely a cooperation agreement or a partnership, the tender specifications limit the methods by which the tenderer may prove that it has the resources necessary for the execution of the contract, manifestly depriving provisions of Articles 47(2) and 48(3) of Directive 2004/08 of their effectiveness. |
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Noteworthy | / |
Public procurement – Directives 89/665/EEC and 2004/18/EC – conflicts of interests – connection between the successful tenderer and the contracting authority’s experts
Judgment C-538/13 12.03.2015 |
Parties |
Jurisdiction |
Formation |
Judge Rapporteur |
Advocate General |
Subject-matter |
Reference for a preliminary ruling |
eVigilo Ltd v Priešgaisrinės apsaugos ir gelbėjimo departamentas prie Vidaus reikalų ministerijos |
CJEU |
5th Ch. |
E. Juhász |
N. Jääskinen |
Public procurement |
Keywords |
Public procurement — Directives 89/665/EEC and 2004/18/EC — Conflicts of interests — Connection between the successful tenderer and the contracting authority’s experts — Obligation to take that connection into account — Burden of proving bias on the part of an expert — Such bias having no effect on the final result of the evaluation — Time-limit for instituting proceedings — Challenging the abstract award criteria –Those criteria clarified after the exhaustive reasons for the award of the contract had been communicated — Degree of the tenders’ conformity with the technical specifications as an evaluation criterion |
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Significant points |
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Noteworthy |
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Public service contracts – Supply of Greek translation services for the Parliament
Judgment T-667/11 14.01.2015 |
Parties |
Jurisdiction |
Formation |
Judge Rapporteur |
Advocate General |
Subject-matter |
Action for annulment |
Verloss International SA, Attimedia SAVEuropean Parliament |
General Court |
3rd Ch. |
E. Bieliunas |
/ |
Public services contracts |
Keywords |
Public service contracts – Supply of Greek translation services for the Parliament – Rejection of a tenderer`s bid – Obligation to state reasons – Non-contractual liability |
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Significant points |
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Noteworthy |
Public service contracts – Directive 92/50/EEC
Judgment C-568/13 18.12.2014 |
Parties |
Jurisdiction |
Formation |
Judge Rapporteur |
Advocate General |
Subject-matter |
Reference for a preliminary ruling |
Azienda Ospedaliero-Universitaria di Careggo-Firenze V Data Medical Service Srl |
CJEU |
5th Chamber |
E. Juhász |
J. Kokott |
Public service contracts — Directive 92/50/EEC |
Keywords |
Public service contracts — Directive 92/50/EEC — Articles 1(c) and 37 — Directive 2004/18/EC — First subparagraph of Article 1(8) and Article 55 — Concepts of ‘service provider’ and ‘economic operator’ — Public university hospital — Entity with legal personality and business and organisational autonomy — Principally non-profit-making activity — Institutional purpose of offering health services — Possibility of offering similar services on the market — Admission to participate in a tendering procedure for the award of a public contract |
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Significant points |
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Noteworthy |
The Court of Justice has reaffirmed that public entities may participate in public procurement tenders and cannot be precluded from doing so under national legislation. Even if these entities receiving public funding may find themselves at a competitive advantage compared to market operators offering services without market funding, no corrective measures are permitted under EU law allowing for the automatic exclusion of abnormally low tenders. The contracting authority, however, may take into consideration the existence of public funding when deciding to reject the tender. |
Public procurement – Contracts falling below the threshold laid down in Directive 2004/18/EC
Judgment C-470/13 18.12.2014 |
Parties |
Jurisdiction |
Formation |
Judge Rapporteur |
Advocate General |
Subject-matter |
Reference for a preliminary ruling |
Generali-Providencia Biztosító Zrt V Közbeszerzési Hatóság Közbeszerzési Döntőbizottság |
CJEU |
10th Chamber |
C. Vajda |
M. Szpunar |
Public procurement |
Keywords |
Public procurement — Contracts falling below the threshold laid down in Directive 2004/18/EC — Articles 49 TFEU and 56 TFEU — Applicability — Certain cross-border interest — Grounds for exclusion from a tendering procedure — Exclusion of an economic operator having committed an infringement of national competition rules, established by a judgment given not more than five years ago — Lawfulness — Proportionality |
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Summary |
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Noteworthy |
In this preliminary ruling, the Court of Justice has confirmed that even if a public contract does not come within the scope of an EU directive and national legislation did not make the directive concerned directly and unconditionally applicable to such a contract, the contract may still be subject to the fundamental rights and principles of the TFEU provided it is of certain cross-border interest. |
Public procurement — Principles of equal treatment and transparency
Judgment C-42/13 6.11.2014 |
Parties |
Jurisdiction |
Formation |
Judge Rapporteur |
Advocate General |
Subject-matter |
Appeal |
Cartiera dell’Adda SpA v CEM Ambiente SpA |
CJEU |
10th Chamber |
C. Vajda |
P. Cruz Villalón |
Public procurement |
Key-words |
Public procurement — Principles of equal treatment and transparency – Directive 2004/18/EC — Grounds for excluding a tenderer from participating — Article 45 — The personal situation of the candidate or tenderer — Compulsory statement concerning the person designated as ‘technical director’ — Statement not included with the tender — Exclusion from the contract without any possibility of remedying that omission |
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Summary |
Article 45 of Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, read in conjunction with Article 2 of the directive, and the principle of equal treatment and the obligation of transparency must be interpreted as not precluding the exclusion of an economic operator from a procurement procedure on the grounds that the operator has failed to comply with the requirement laid down in the contract documentation to annex to his bid, on pain of exclusion, a statement to the effect that the person designated in the bid as the operator’s technical director has not been the subject of criminal proceedings or a conviction, even where, at a date after the expiry of the deadline for submitting bids, such a statement has been provided to the contracting authority or it is shown that the person in question has been identified as the technical director in error.First, the principle of equal treatment requires tenderers to be afforded equality of opportunity when formulating their bids, which therefore implies that the bids of all tenderers must be subject to the same conditions. Second, the obligation of transparency is intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. It implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or specifications ensuring that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, second, that the contracting authority is able to ascertain whether the bids submitted satisfy the criteria applying to the contract in question (see, to that effect, judgment in Commission v CAS Succhi di frutta, C‑496/99 P, EU:C:2004:236, paragraphs 108 to 111).
In particular, in so far as the contracting authority takes the view that that omission is not a purely formal irregularity, it cannot allow the tenderer subsequently to remedy the omission in any way after the expiry of the deadline for submitting bids. Furthermore, in such circumstances, Article 51 of Directive 2004/18, which provides that the contracting authority may invite operators to supplement or clarify the certificates and documents submitted pursuant to Articles 45 to 50 of the directive, cannot be interpreted as permitting such authority to accept any rectification of omissions which, as expressly provided for in the contract documentation, must result in the exclusion of the bid. |
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Noteworthy |
A rigourous construction of the Directive 2004/18 in the light of the principles of equal treatment and transparency. |