CJEU, gr. chamber, May 24, 2016, No C-396/14

THE COURT (Grand Chamber),

1 This request for a preliminary ruling concerns the interpretation of the principle of equal treatment of economic operators, stated in Article 10 of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004, L 134, p. 1), read together with Article 51 of that directive.

2 The request has been made in the context of proceedings between MT Højgaard A/S and Züblin A/S, on the one hand, and Banedanmark, the railway infrastructure operator in Denmark, on the other, on whether a public contract was correctly awarded by Banedanmark, as the contracting entity, to Per Aarsleff A/S.

Legal context

EU law

3 Recital 9 in the preamble of Directive 2004/17 states:

'In order to guarantee the opening up to competition of public procurement contracts awarded by entities operating in the water, energy, transport and postal services sectors, it is advisable to draw up provisions for Community coordination of contracts above a certain value. Such coordination is based on the requirements inferable from Articles 14, 28 and 49 of the EC Treaty and from Article 97 of the Euratom Treaty, namely the principle of equal treatment, of which the principle of non-discrimination is no more than a specific expression, the principle of mutual recognition, the principle of proportionality, as well as the principle of transparency. In view of the nature of the sectors affected by such coordination, the latter should, while safeguarding the application of those principles, establish a framework for sound commercial practice and should allow maximum flexibility.

...'

4 Article 10 of that directive, headed 'Principles of awarding contracts', provides:

'Contracting entities shall treat economic operators equally and non-discriminatorily and shall act in a transparent way.'

5 Article 11(2) of that directive, that article being headed 'Economic operators', provides:

'Groups of economic operators may submit tenders or put themselves forward as candidates. In order to submit a tender or a request to participate, these groups may not be required by the contracting entities to assume a specific legal form; however, the group selected may be required to do so when it has been awarded the contract, to the extent to which this change is necessary for the satisfactory performance of the contract.'

6 As part of Chapter VII of that directive, Article 51, headed 'General provisions', provides:

'1. For the purpose of selecting participants in their award procedures:

(a) contracting entities having provided rules and criteria for the exclusion of tenderers or candidates in accordance with Article 54(1), (2) or (4) shall exclude economic operators which comply with such rules and meet such criteria;

(b) they shall select tenderers and candidates in accordance with the objective rules and criteria laid down pursuant to Article 54;

(c) in restricted procedures and in negotiated procedures with a call for competition, they shall where appropriate reduce in accordance with Article 54 the number of candidates selected pursuant to subparagraphs (a) and (b).

...

3. Contracting entities shall verify that the tenders submitted by the selected tenderers comply with the rules and requirements applicable to tenders and award the contract on the basis of the criteria laid down in Articles 55 and 57.'

7 Article 54 of Directive 2004/17, headed 'Criteria for qualitative selection', provides:

'1. Contracting entities which establish selection criteria in an open procedure shall do so in accordance with objective rules and criteria which are available to interested economic operators.

2. Contracting entities which select candidates for restricted or negotiated procedures shall do so according to objective rules and criteria which they have established and which are available to interested economic operators.

3. In restricted or negotiated procedures, the criteria may be based on the objective need of the contracting entity to reduce the number of candidates to a level which is justified by the need to balance the particular characteristics of the procurement procedure with the resources required to conduct it. The number of candidates selected shall, however, take account of the need to ensure adequate competition.

...'

Danish law

8 The first subparagraph of Article 2 of the lov om visse erhvervsdrivende virksomheder (Law on certain commercial activities), published by Consolidation Act No 1295 of 15 November 2013, contains the following definition, established pursuant to case-law and academic writing:

'For the purposes of this law, 'partnership' means an undertaking in which all members are personally and jointly and severally liable, without limitation, for the debts and obligations of the undertaking.'

The main proceedings and the question referred for a preliminary ruling

9 By means of a notice published in January 2013 Banedanmark commenced a negotiated procedure with a prior call for competition, within the meaning of Article 47 of Directive 2004/17, for the award of a public contract for the construction of a new railway line between Copenhagen and Ringsted, a project called 'TP 4 Urban Tunnels'. For the purposes of the award of the contract, the criterion adopted was that of the tender offering the best value for money.

10 According to the contract notice, Banedanmark's intention was to invite four to six candidates to submit tenders and to carry out, if the number of candidates was greater than six, a pre-selection. Further, it is apparent from the tendering specifications that under the procedure commenced it was envisaged that the tenderers would be invited to lodge three successive tenders in the course of the procedure. There would be negotiation after the lodging of the first two tenders, the third and last leading to the award of the contract.

11 Five economic operators sought an invitation to take part in the procedure in the pre-selection phase. Those five candidates included the group consisting of MT Højgaard and Züblin ('the Højgaard and Züblin group') and the group consisting of Per Aarsleff and E. Pihl og Søn A/S ('the Aarsleff and Pihl group'). Banedanmark pre-selected all five candidates and invited them to submit tenders.

12 In June 2013 one of the undertakings withdrew from the procedure, and consequently only four pre-selected tenderers remained.

13 The contract constituting the Aarsleff and Pihl group was entered into by the two companies on 26 August 2013. On that same date, the court with jurisdiction delivered a judgment declaring E. Pihl og Søn to be insolvent. Banedanmark was informed of that judgment in the afternoon of the same day and immediately sought clarification from Per Aarsleff on the effect of that judgment on the ongoing procurement procedure. Notwithstanding that declaration of insolvency, the Aarsleff and Pihl group submitted on 27 August 2013 a first tender, signed by the two companies but not by the liquidator.

14 On 15 October 2013 Banedanmark informed all the tenderers of its decision to allow Per Aarsleff to continue to take part, alone, in the procedure. Banedanmark explained that decision by stating that Per Aarsleff, which was the leading contracting company in Denmark in terms of turnover for the financial years 2012 and 2013, satisfied the conditions required for participation in the negotiated procedure, even in the absence of the technical and financial capacities of E. Pihl og Søn. In addition, Per Aarsleff had taken over the contracts of more than 50 salaried staff of E. Pihl og Søn, including the individuals who were key to the implementation of the project concerned.

15 Per Aarsleff submitted a second tender, in its own name, stating that it was submitting that tender as the successor of the Aarsleff and Pihl group, that the liquidator had not indicated that he intended to maintain the joint venture contract and that, consequently, Per Aarsleff had terminated that contract. After the assessment of the second tenders received, Banedanmark decided, in accordance with the conditions of the contract notice, to choose three tenders with a view to determining which of them offered the best value for money and asked the three tenderers chosen to submit a third and final tender. The three tenderers included Per Aarsleff and the Højgaard and Züblin group. Those final tenders were lodged by the three tenderers on 12 December 2013.

16 On 20 December 2013 Banedanmark informed the three chosen tenderers that it had decided to award the contract to Per Aarsleff, whose tender was, in terms of quality and price, the tender offering the best value for money. That tender was for a sum of DKK 920 300 000 (Danish krone; approximately EUR 123 402 000).

17 Following that decision, MT Højgaard and Züblin brought proceedings before Klagenævnet for Udbud (the Public Procurement Complaints Board, Denmark), claiming inter alia that, by allowing Per Aarsleff to participate in the procedure in the place of the Aarsleff and Pihl group, although Per Aarsleff had not itself been pre-selected, Banedanmark was in breach of the principles of equal treatment and transparency laid down in Article 10 of Directive 2004/17. MT Højgaard and Züblin therefore claimed that Klagenævnet for Udbud (the Public Procurement Complaints Board) should annul the decision to award the contract to Per Aarsleff, and order the execution of that decision to be suspended.

18 Klagenævnet for Udbud (Public Procurement Complaints Board) first decided not to declare that the action had suspensive effect. The Board then held, in its order for reference, that on the basis of the information provided concerning Per Aarsleff, that company would have been pre-selected if it had sought an invitation to take part in its own name instead of doing so through the intermediary of the Aarsleff and Pihl group. Klagenævnet for Udbud (the Public Procurement Complaints Board) also states that there is no provision of Danish law that prohibits an alteration being made, after the submission of tenders, to the composition of a group of undertakings that is participating in a public procurement procedure.

19 Klagenævnet for Udbud (the Public Procurement Complaints Board) further observes that, in the contract notice, Banedanmark laid down minimum conditions as to quality with respect to the technical capacities of the tenderers and was to undertake a qualitative assessment of the applications only if their number was greater than six. Per Aarsleff could therefore have been pre-selected in its own name, without being part of the Aarsleff and Pihl group. The fact that Per Aarsleff took the place of that group had, moreover, no effect on the situation of tenderers, in so far as none of the candidates was excluded in the pre-selection phase and none would have been rejected if Per Aarsleff itself had applied for an invitation to take part. In addition, a distinction needs to be made between the situation where an alteration to a group is made before the award of the contract and the situation where that alteration is made after that award.

20 Nonetheless, Klagenævnet for Udbud (the Public Procurement Complaints Board) has some reservations in relation to the compatibility of the procedure followed with the principle of equal treatment, while pointing out that, as regards public contracts in the activity sectors falling within the scope of Directive 2004/17, the EU legislature did not lay down rules with respect to the application of that principle that were as detailed as those in 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 (OJ 2004, L 134, p. 114).

21 In the light of the foregoing, Klagenævnet for Udbud (the Public Procurement Complaints Board) decided to stay the proceedings and to refer to the Court the following question for a preliminary ruling:

'Is the principle of equal treatment in Article 10 of Directive 2004/17, read together with Article 51 thereof, to be interpreted as precluding, in a situation such as that in the main proceedings, a contracting authority from awarding a contract to a tenderer which had not applied for pre-selection and therefore was not pre-selected?'

The jurisdiction of the Court

22 In paragraph 15 of the judgment of 18 November 1999, Unitron Scandinavia and 3-S (C 275/98, EU:C:1999:567), the Court accepted that Klagenævnet for Udbud (the Public Procurement Complaints Board) was a 'court or tribunal', within the meaning of Article 267 TFEU. The Danish Government states, however, that the Court, in the judgment of 9 October 2014, TDC (C 222/13, EU:C:2014:2265), nonetheless found that Teleklagenævnet (the Telecommunications Complaints Board, Denmark) was not a 'court or tribunal', and consequently asks the Court to clarify further the relevant criteria and to confirm, if appropriate, that Klagenævnet for Udbud (the Public Procurement Complaints Board) is a 'court or tribunal'.

23 In that regard, it must be recalled that, in accordance with settled case-law, in order to assess whether a body making a reference is a 'court or tribunal', which is a question governed by EU law alone, the Court will take account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (judgment of 6 October 2015, Consorci Sanitari del Maresme C 203/14, EU:C:2015:664, paragraph 17 and the case-law cited).

24 In the main proceedings, there is no indication in the file submitted to the Court that the referring body does not meet the criteria relating to whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, and whether it applies rules of law.

25 As regards the criterion of independence, a criterion which Teleklagenævnet (the Telecommunications Complaints Board) did not meet, as held by the Court in the judgment of 9 October 2014, TDC (C 222/13, EU:C:2014:2265), to which the Danish Government draws attention, it is clear, first, that, unlike that other complaints board, Klagenævnet for Udbud (the Public Procurement Complaints Board) is not a party in cases brought before the ordinary courts against its decisions. It follows that it acts as a third party in relation to the parties to the proceedings, in particular in relation to the authority that adopted the decision against which a complaint is brought before it.

26 It must further be observed that, as stated by the Advocate General in point 44 of his Opinion, it is apparent from the file that Klagenævnet for Udbud (the Public Procurement Complaints Board) has no functional link with the Danish Ministry for Business and Growth. The fact that the secretariat of that body is attached to that ministry is not such as to call into question that finding. Moreover, that body carries out its functions in a wholly independent manner, does not occupy a hierarchical or subordinate position and does not take orders or instructions from any source whatsoever (see, to that effect, judgment of 6 October 2015, Consorci Sanitari del Maresme, C 203/14, EU:C:2015:664, paragraph 19 and case-law cited).

27 As regards the independence of the members of the referring body, it must be stated that, under Article 1(4) of bekendtgørelse nr. 887 om Klagenævnet for Udbud med senere ændringer (Order No 887 on the Public Procurement Complaints Board, as amended), of 11 August 2011, the members are bound to perform their duties in an independent manner.

28 It is apparent from the file that the referring body is composed, in accordance with Article 9(1) of the lov nr. 492 om håndhævelse af udbudsreglerne med senere ændringer (Law No 492 on the implementation of the public procurement rules, as amended), of 12 May 2010 ('Law No 492'), of a president and a number of vice-presidents, who form the presidency, and a number of expert members. The presidency is occupied, in accordance with the second subparagraph of Article 9(2) of Law No 492, by judges of the district courts and higher regional courts.

29 Klagenævnet for Udbud (Public Procurement Complaints Board) is composed of both lawyers and lay members. In its ordinary composition, it comprises one member of the presidency acting as president and one expert member. Further, under Article 10(5) of Law No 492, its decisions are adopted on a simple majority of votes, the president having the deciding vote in the event of a tie. Consequently, the members of that body who come from the ranks of Danish judges have in any circumstances the majority of votes and, accordingly, the greater weight in the decisions adopted by that body.

30 The members of the referring body who are members of the judiciary enjoy, in that capacity, the particular protection against dismissal laid down in Article 64 of the Danish Constitution, a protection which also extends to the performance of the tasks of a member of the presidency of the referring body.

31 Given that the votes of the members of the referring body, who, as members of the judiciary, enjoy that particular protection, have the greater weight, the fact that the expert members of that body do not enjoy the same protection cannot, in any event, call into question the independence of that body.

32 In the light of the foregoing, it can be confirmed that Klagenævnet for Udbud (Public Procurement Complaints Board) also meets the criterion of independence and must, therefore, be accorded the status of a 'court of tribunal', within the meaning of Article 267 TFEU.

33 Consequently, the Court has jurisdiction to answer the question referred.

Consideration of the question referred for a preliminary ruling

34 By its question, the referring court seeks, in essence, to ascertain whether the principle of equal treatment of economic operators, stated in Article 10 of Directive 2004/17, read together with Article 51 of that directive, must be interpreted as precluding a contracting entity from allowing an economic operator that is a member of a group of two undertakings which was pre-selected and which submitted the first tender in a negotiated procedure for the award of a public contract, to continue to take part in that procedure in its own name, after the dissolution of that group.

35 In order to answer that question, it must be observed that Directive 2004/17 does not lay down any rules specifically relating to alterations made to the composition of a group of economic operators that has been pre-selected as a tenderer for a public contract, and consequently rules about such a situation are a matter for the Member States (see, to that effect, judgment of 23 January 2003, Makedoniko Metro and Michaniki, C 57/01, EU:C:2003:47, paragraph 61).

36 Neither the Danish legislation nor the contract notice concerned in the main proceedings contains any specific rules on that subject. That being the case, the question of whether a contracting entity may allow such an alteration must be examined with regard to the general principles of EU law, in particular the principle of equal treatment and the duty of transparency that flows from it, and the objectives of that law in relation to public procurement.

37 In that regard, it must be recalled that the principle of equal treatment and the duty of transparency mean, in particular, that tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being assessed by the contracting authority, and constitute the basis of the EU rules on procedures for the award of public contracts (see, to that effect, judgment of 16 December 2008, Michaniki, C 213/07, EU:C:2008:731, paragraph 45 and case-law cited).

38 The principle of equal treatment of tenderers, the aim of which is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure, requires that all tenderers must be afforded equality of opportunity when formulating their tenders, and therefore implies that the tenders of all competitors must be subject to the same conditions (judgments of 29 April 2004, Commission v CAS Succhi di Frutta, C 496/99 P, EU:C:2004:236, paragraph 110, and of 12 March 2015, eVigilo, C 538/13, EU:C:2015:166, paragraph 33).

39 A strict application of the principle of equal treatment of tenderers, as expressed in Article 10 of Directive 2004/17, read together with Article 51 of that directive, would lead to the conclusion that only those economic operators who have been pre-selected can in that capacity submit tenders and be awarded contracts.

40 That approach is based on Article 51(3) of Directive 2004/17, which states that the contracting entities are to 'verify that the tenders submitted by the selected tenderers comply [with the rules and requirements applicable to tenders] ...', which presupposes, as stated by the Advocate General in point 63 of his Opinion, that the pre-selected economic operators and those who submit tenders are legally and substantively the same.

41 However, the requirement of legal and substantive identity referred to in the preceding paragraph of this judgment may be qualified in order to ensure, in a negotiated procedure, adequate competition, as required by Article 54(3) of Directive 2004/17.

42 In the main proceedings, as is apparent from paragraph 10 of this judgment, the contracting entity considered that there should be at least four candidates in order to ensure such competition.

43 If, however, an economic operator is to continue to participate in the negotiated procedure in its own name, following the dissolution of the group of which it formed part and which had been pre-selected by the contracting entity, that continued participation must take place in conditions which do not infringe the principle of equal treatment of the tenderers as a whole.

44 In that regard, a contracting entity is not in breach of that principle where it permits one of two economic operators, who formed part of a group of undertakings that had, as such, been invited to submit tenders by that contracting entity, to take the place of that group following the group's dissolution, and to take part, in its own name, in the negotiated procedure for the award of a public contract, provided that it is established, first, that that economic operator by itself meets the requirements laid down by the contracting entity and, second, that the continuation of its participation in that procedure does not mean that the other tenderers are placed at a competitive disadvantage.

45 In the main proceedings, it must, first, be stated that it is apparent from the order for reference that had Per Aarsleff, alone, made an application for an invitation to take part in the procedure, it would have been pre-selected (see paragraph 18 of this judgment).

46 That said, having regard to information in the file which indicates that, first, the contract constituting the Aarsleff and Pihl group was concluded on the very day when the judgment declaring E. Pihl og Søn insolvent was delivered, and, second, that group's first tender was lodged the following day without the signature of the liquidator of E. Pihl og Søn, it must further be stated that it is for the referring court to determine that the lodging of that first tender was not vitiated by an irregularity that was such as to preclude Per Aarsleff continuing to take part, in its own name, in the negotiated procedure concerned.

47 Last, as regards the fact that, after the dissolution of the Aarsleff and Pihl group, Per Aarsleff took on the contracts of 50 salaried staff of E. Pihl og Søn, including individuals who were key to the implementation of the construction project concerned, it is for the referring court to determine whether Per Aarsleff thereby acquired a competitive advantage at the expense of the other tenderers.

48 In the light of the foregoing, the answer to the question referred is that the principle of equal treatment of economic operators, stated in Article 10 of Directive 2004/17, read together with Article 51 of that directive, must be interpreted as meaning that a contracting entity is not in breach of that principle where it permits one of two economic operators who formed part of a group of undertakings that had, as such, been invited to submit tenders by that contracting entity, to take the place of that group following the group's dissolution and to take part, in its own name, in a negotiated procedure for the award of a public contract, provided that it is established, first, that that economic operator by itself meets the requirements laid down by the contracting entity and, second, that the continuation of its participation in that procedure does not mean that other tenderers are placed at a competitive disadvantage.

Costs

49 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Grand Chamber) hereby rules:

The principle of equal treatment of economic operators, stated in Article 10 of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, read together with Article 51 of that directive, must be interpreted as meaning that a contracting entity is not in breach of that principle where it permits one of two economic operators who formed part of a group of undertakings that had, as such, been invited to submit tenders by that contracting entity, to take the place of that group following the group's dissolution and to take part, in its own name, in a negotiated procedure for the award of a public contract, provided that it is established, first, that that economic operator by itself meets the requirements laid down by the contracting entity and, second, that the continuation of its participation in that procedure does not mean that other tenderers are placed at a competitive disadvantage.