European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

Recital 1 of Directive No 2014/24 lays down the obligation to comply with the principles of the Treaty, such as the free movement of goods, the freedom of establishment and the freedom to provide services , as well as the principles deriving therefrom. Thus, according to Article 18, the principles of non-discrimination and transparency must guide the contracting authority in its relations with economic operators .

The fundamental principles of the Treaty apply not only cumulatively to the directive , but also, as a subsidiary matter, to contracts expressly excluded from the scope of the directive  or which do not fall within any of these categories, such as, under French law, the so-called “marchés de définition” (public contracts for designing the parameters, including the purpose of a public works, supply or service contract) , contracts which do not reach the thresholds required to trigger the procedures provided for by the directive  or, generally, any contract having a certain cross-border interest . The burden of proof of the existence of such an interest is on the party who claims the application of the fundamental principles . 

However, it is not sufficient to claim violation of such a principle for a public contract to be challenged. The denounced violation must also be characterized . Thus, the principle of equal treatment is not breached by the mere fact that a body has been allowed to take part in the procedure although it receives subsidies, whether from the contracting authority or from other authorities, enabling it to submit tenders at prices appreciably lower than those of another non-subsidized bidder, unless the subsidies are not in conformity with the Treaty . Likewise, although the general principles of EU law preclude a complete lack of any call for competition, even in the case of service concessions, they do not apply where the contracting authority exercises over the concessionaire a control which is similar to that which it exercises over its own departments and that entity carries out the essential part of its activity with the authority holding it . This rule does not cover cases where the company who has been awarded the contract is a semi-public company . Lastly, where there is an advantage in favor of the existing contractor, the principle of equal treatment requires it to be neutralized only if the neutralization is carried out under conditions that are technically easy to effect and economically acceptable and which do not infringe the rights of the contractor or tenderer .

For an example, see Case C-299/19 Techbau SpA, Judgment of 18 November 2020, , which holds that a public works contract constitutes a commercial transaction when the operator's commitments to the contracting authority are likely to result in the provision of services. 

Case C-65/17 Oftalma Hospital Srl, Judgment of 19 April 2018, LawLex201800000623JBJ: re-stating that when it awards a public service contract, a contracting authority is required to comply with the fundamental rules and general principles of the TFEU Treaty, in particular the principles of equal treatment and non-discrimination on grounds of nationality and the consequent obligation of transparency on condition that there is a cross-border interest on the date on which the contract at issue was awarded.

Case C-458/03 Parking Brixen [2005] ECR I-8585, LawLex200900000905JBJ.

Case C-196/08 Acoset [2009] ECR I-9913, LawLex201100000486JBJ.

Case T-345/03 Evropaïki Dynamiki v Commission [2008] ECR II-341, LawLex200900001461JBJ.

Case C-225/98 Commission v France [2000] ECR I-7445, LawLex200700001613JBJ: the designation of the lots to be awarded by reference to classifications of national professional organizations constitutes indirect discrimination and, therefore, a restriction on the freedom to provide services; C-513/99 Concordia Bus Finland [2002] ECR I-7213, LawLex200900001021JBJ: The contracting authority does not breach the principle of equal treatment where it assesses the economically advantageous character of an offer with regard to the criteria that a company belonging to it is the only company capable of fulfilling.

Case C-275/98 Unitron Scandinavia and 3-S [1999] ECR I-8291, LawLex200900001368JBJ: a contract covered by the derogation of Article 18 of the directive must nevertheless comply with the principle of non-discrimination on grounds of nationality; C-507/03 Commission v Ireland [2007] ECR I-9777, LawLex200900001012JBJ: for a public services contract falling within Annex II B.

See Case C-299/08 Commission v France [2009] ECR I-11587, LawLex201100000474JBJ: the procedure applicable to the so-called 'marchés de définition' under French law is contrary to the principle of equal treatment where only the holders of 'marché de définition' are invited to bid for 'marchés d'exécution' (a public works, supply or service contract).

Case C-59/00 Vestergaard [2001] ECR I-9505, LawLex200700000338JBJ: Article 34 TFEU precludes a contracting authority from including in the contract documents a clause requiring the use in performing the contract of a product of a specific trademark, where that clause does not include the words 'or equivalent'; Case C-264/03 Commission v France [2005] ECR I-8831, LawLex200900001043JBJ; C-220/06 Asociación Profesional de Empresas de Reparto y Manipulado de Correspondencia [2007] ECR I-12175, LawLex200900001245JBJ; on the same day, Case C-532/03 Commission v Ireland [2007] ECR I-11353, LawLex200900001034JBJ.

Case C-412/04 Commission v Italy [2008] ECR I-619, LawLex200900000744JBJ; C-147/06 SECAP and Santorso [2008] ECR I-3565, LawLex200900000584JBJ; C-376/08 Serrantoni and Consorzio stabile edili, LawLex201100000406JBJ.

Case C-507/03 Commission v Ireland, Judgment of 13 November 200 , LawLex200900001012JBJ: for a public services contract falling under Annex II B.

For an example, see Case C-376/08 Serrantoni and Consorzio stabile edili, LawLex201100000406JBJ: the principle of non-discrimination precludes the application of national legislation which provides that permanent consortia and their members are automatically excluded from participating in tender offers and sets forth an irrebuttable presumption of mutual interference between their members, whilst it authorizes tenders by other types of groups having the same characteristics.

Case C-94/99 ARGE [2000] ECR I-11037, LawLex200700001599JBJ.

293. General principles of EU law