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

The main obligation of the contracting entities is to launch a call for competition before awarding contracts in the sectors referred to in the directive. The publicity of the contract is ensured either by a periodic indicative notice subject to mandatory requirements when made  as a means of calling for competition for restricted procedures or negotiated procedures with prior call for competition …

Legal rules

The main obligation of the contracting entities is to launch a call for competition before awarding contracts in the sectors referred to in the directive. The publicity of the contract is ensured either by a periodic indicative notice subject to mandatory requirements when made  as a means of calling for competition for restricted procedures or negotiated procedures with prior call for competition , by a notice on the existence of a qualification system  or by a contract notice which may be used as a means of calling for competition in respect of all procedures .

Article 50 provides for the possibility for contracting entities to use the negotiated procedure without prior call for competition in a number of cases, including inter alia: 

- when no tenders or no suitable tenders or no applications have been submitted in response to a procedure with a prior call for competition, provided that the initial conditions of contract are not substantially altered ;

-  where a contract is purely for the purpose of research, experiment, study or development, and not for the purpose of securing a profit or of recovering research and development costs;

- when, for technical or artistic reasons, or for reasons connected with the protection of exclusive rights, the contract may be executed only by a particular economic operator ; 

- insofar as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseeable by the contracting entities, the time-limits laid down for open, restricted and negotiated procedures with a prior call for competition cannot be adhered to . 

The publicity obligation is required not only for the launching of the initial tender offer, but also where the essential characteristics of the contract are amended following negotiations initiated between the contracting entity and the participants. The renegotiation of the terms of a public contract may be assimilated to a new contract only if the discussions initiated relate to characteristics that are substantially different from those having as their purpose the initial agreement and result in the amendment of the essential terms of the contract . 

Participants in the award procedure are selected pursuant to the qualitative criteria listed in Article 78 of the directive. The contract notice, which sets out the criteria, must not be worded so as to give rise to a difference in treatment because of the Member State of establishment of the party concerned, to the detriment of foreign candidates . Where those criteria relate to the economic or financial standing of the operator, or its technical and/or professional capability, it should be authorized to rely on the capability of other entities, regardless of the legal nature of the links existing between itself and those entities, provided that it brings evidence that it has the means necessary to perform the contract. Furthermore, a group of economic operators cannot rely on the capability of the participants to the group or other entities . 

As in Directive No 2014/24, the award of a contract can take place only on the basis of the most economically advantageous tender . The most economically advantageous tender is assessed on the basis of the price or the cost according to a cost-effectiveness approach such as life-cycle costing, and may include the best price-quality ratio, which is assessed on the basis of criteria including qualitative, environmental and/or social aspects, linked to the subject-matter of the contract in question. The directive ratifies the previous case law which held that the contracting authorities could take into consideration ecological criteria, provided that the criteria retained are linked to the subject-matter of the contract and referred to in the contract documents or the tender notice, do not confer an unrestricted freedom of choice on the contracting authority and comply with the principle of non-discrimination . On the other hand, such criteria must remain distinct from qualitative selection criteria .

 A candidate or tenderer who has been rejected must be “promptly” informed of the reason of the rejection. The contracting authority, bound by an obligation of diligence in respect of the communication, to those tenderers requesting it, of the reason for the rejection of their bid, must bring evidence of objective factors capable of justifying the two-month delay in communicating the information . Where a public procurement procedure in which two tenders have been submitted and the contracting authority has adopted two simultaneous decisions rejecting the tender of one of the tenderers and awarding the contract to the other, the unsuccessful tenderer who brings an action against those two decisions must be able to request the exclusion of the tender of the successful tenderer . Where an economic operator has been engaged in anticompetitive conduct in violation of Article 101 TFEU which has been penalized by a competent authority, the maximum period of exclusion is calculated from the date of the decision of that authority. Further, a national law may, without infringing Directive No 2014/25, require an economic operator wishing to demonstrate its reliability despite the existence of a relevant ground for exclusion, to clarify the facts and circumstances relating to the criminal offense or the misconduct committed in a comprehensive manner by actively cooperating not only with the investigating authority, but also with the contracting authority, in the context of the latter's specific role, in order to provide it with proof of the re-establishment of its reliability, insofar as that cooperation is limited to the measures strictly necessary for that examination .

In addition to the remedies offered to economic operators by Directive No 92/13 of 25 February 1992 , the Commission may bring an action for failure to fulfill obligations where it finds a violation of the provisions of Directive No 2014/25. This action is admissible provided that on the date of expiration of the period set in the reasoned opinion sent to the Member State by the Commission, the contract has not been fully performed yet . 

Case C-513/99 Concordia Bus Finland [2002] ECR I-7213, LawLex200900001021JBJ.

Case C-199/07 Commission v Greece [2009] ECR I-10669, LawLex201100000487JBJ.

Case C-250/07 Hellenic Republic [2009] ECR I-4369, LawLex201100000440JBJ.

Case C-131/16 Archus sp. z o.o, Judgment of 11 May 2017, LawLex201700000863JBJ: specifying that in an action available under Article 1(3) of Directive No 93/13 to any person having or having had an interest in obtaining a particular contract who has been or risks being harmed by an alleged infringement - in this case an unsuccessful tenderer seeking the exclusion of the successful tenderers' bid on the ground that it does not comply with the tender specifications - the concept of "a particular contract", within the meaning of that article, may apply to the possible initiation of a new public procurement procedure.

Case C-124/17 Vossloh Laeis GmbH v Stadtwerke München GmbH,Judgment of 24 October 2018, LawLex201800001588JBJ.

Amended for the last time by Directive No 2007/66 of 11 December 2007, OJ L 335 of 20 December 2007, 31.

This is the case where the works which are the subject-matter of the contract have been completed only up to 85%, Case C-394/02 Commission v Greece [2005] ECR I-4713, LawLex200900000665JBJ; See also Case C-536/07 Commission v Germany [2009] ECR I-10355, LawLex201100000271JBJ.

Case C-199/07 Commission v Greece [2009] ECR I-10669, LawLex201100000487JBJ: the obligation of call for competition is not required for a contract awarded in the electricity sector where tenders submitted as part of two prior calls for tenders do not enable the entity to achieve the project for which the procedure was launched, give the regulatory constraints to which it is subject.

Case C-394/02 Commission v Greece [2005] ECR I-4713, LawLex200900000665JBJ: the fact that there are technical reasons which make it absolutely necessary to award a contract to a particular undertaking is not established where, in the past, the same works were subject to a call for tenders and, in this case, the contracting authority canvassed two undertakings.

Case C-394/02 Commission v Greece [2005] ECR I-4713, LawLex200900000665JBJ: the existence of extreme urgency brought about by unforeseeable events is not established where the facts of the case show that the contract could have been awarded three years before. 

Case C-16/98 Commission v France [2000] ECR I-8315, LawLex200700001586JBJ: the renegotiation of the terms of a public contract may be assimilated to a new contract only if the discussions initiated relate to characteristics that are substantially different from those having as their purpose the initial agreement and result in the amendment of the essential terms of the contract.

Case C-399/05 Commission v Greece [2007] ECR I-101*, Summ.pub.: it is not necessary that a selection criterion - such as that relating to background, be met by each of the members of the consortium submitting a tender, where one of them meets it.

European Business Law

300. Legal rules

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

300. Legal rules

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise