# C_2011072EN.01001102.xml

| 5.3.2011 | EN | Official Journal of the European Union | C 72/11 |
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5.3.2011

EN

Official Journal of the European Union

C 72/11

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Reference for a preliminary ruling from the Najvyšší súd Slovenskej republiky (Slovak Republic) lodged on 17 December 2010 — SAG ELV Slovensko, a.s., FELA Management AG, ASCOM (Schweiz) AG, Asseco Central Europe, a.s., TESLA Stropokov, a.s., Autostrade per ľItalia S.p.A., EFKON AG, Stalexport Autostrady S.A. v Úrad pre verejné obstarávanie

(Case C-599/10)

2011/C 72/19

Language of the case: Slovak

Referring court

Referring court

Najvyšší súd Slovenskej republiky

Parties to the main proceedings

Parties to the main proceedings

Applicants: SAG ELV Slovensko, a.s., FELA Management AG, ASCOM (Schweiz) AG, Asseco Central Europe, a.s., TESLA Stropokov, a.s., Autostrade per ľItalia S.p.A., EFKON AG, Stalexport Autostrady S.A.

Applicants:

Defendant: Úrad pre verejné obstarávanie

Defendant:

Intervener: Národná dial'ničná spoločnost, a.s.

Intervener:

Questions referred

Questions referred

| 1. | Is the interpretation that, under Article 51, in conjunction with Article 2, of Directive 2004/18/EC (1) 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, taking account of the principle of non discrimination and transparency in the award of public contracts, the contracting authority is obliged to seek clarification of a tender, respecting the subjective procedural right of the individual to be requested to supplement or clarify certificates and documents submitted pursuant to Articles 45 to 50 of the Directive, if a disputable or unclear understanding of the tenderer’s bid could result in the exclusion of that tenderer, in conformity with the above Directive in the wording in effect in the relevant period? |
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1.

Is the interpretation that, under Article 51, in conjunction with Article 2, of Directive 2004/18/EC (1) 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, taking account of the principle of non discrimination and transparency in the award of public contracts, the contracting authority is obliged to seek clarification of a tender, respecting the subjective procedural right of the individual to be requested to supplement or clarify certificates and documents submitted pursuant to Articles 45 to 50 of the Directive, if a disputable or unclear understanding of the tenderer’s bid could result in the exclusion of that tenderer, in conformity with the above Directive in the wording in effect in the relevant period?

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| 2. | Is the interpretation that, under Article 51, in conjunction with Article 2 of Directive 2004/18/EC, taking account of the principle of non discrimination and transparency in the award of public contracts, the contracting authority is not obliged to seek clarification of a tender if the contracting authority considers it established that the requirements regarding the subject matter of the contract have not been met, in conformity with the Directive in the wording in effect in the relevant period? |
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2.

Is the interpretation that, under Article 51, in conjunction with Article 2 of Directive 2004/18/EC, taking account of the principle of non discrimination and transparency in the award of public contracts, the contracting authority is not obliged to seek clarification of a tender if the contracting authority considers it established that the requirements regarding the subject matter of the contract have not been met, in conformity with the Directive in the wording in effect in the relevant period?

| 3. | Is a provision of national law under which a committee established to evaluate tenders only may request tenderers in writing to clarify their bid in conformity with Article 51 and Article 2 of Directive 2004/18/EC in the wording in effect in the relevant period? Is a contracting authority’s procedure, according to which it is not obliged to request a tenderer to clarify an abnormally low price, in conformity with Article 55 of Directive 2004/18/EC, and, on the formulation of the question put by the contracting authority to the applicants in connection with the abnormally low price, did Applicants I and II have the opportunity to explain sufficiently the constituent features of the tender submitted? |
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3.

Is a provision of national law under which a committee established to evaluate tenders only may request tenderers in writing to clarify their bid in conformity with Article 51 and Article 2 of Directive 2004/18/EC in the wording in effect in the relevant period? Is a contracting authority’s procedure, according to which it is not obliged to request a tenderer to clarify an abnormally low price, in conformity with Article 55 of Directive 2004/18/EC, and, on the formulation of the question put by the contracting authority to the applicants in connection with the abnormally low price, did Applicants I and II have the opportunity to explain sufficiently the constituent features of the tender submitted?

may

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(1)  OJ 2004 L 134, p. 114.

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