# C_2022418EN.01001101.xml

| 31.10.2022 | EN | Official Journal of the European Union | C 418/11 |
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31.10.2022

EN

Official Journal of the European Union

C 418/11

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Judgment of the Court (Fourth Chamber) of 15 September 2022 (request for a preliminary ruling from the Bayerisches Oberstes Landesgericht — Germany) — Landkreis A.-F. v J. Sch. Omnibusunternehmen and K. Reisen GmbH

(Case C-416/21) (1)

(Reference for a preliminary ruling - Public procurement procedures - Directive 2014/24/EU - Point (d) of the first subparagraph of Article 57(4) - Optional grounds for exclusion - Agreements with other economic operators aimed at distorting competition - Directive 2014/25/EU - Article 36(1) - Principles of proportionality and equal treatment of tenderers - Article 80(1) - Use of exclusion grounds and selection criteria provided for under Directive 2014/24/EU - Tenderers which constitute an economic unit and have submitted separate tenders that were neither autonomous nor independent - Need for sufficiently plausible indications to establish an infringement of Article 101 TFEU)

(2022/C 418/14)

Language of the case: German

Referring court

Bayerisches Oberstes Landesgericht

Parties to the main proceedings

Appellant: Landkreis A.-F.

Respondents: J. Sch. Omnibusunternehmen and K. Reisen GmbH

Intervener: E. GmbH & Co. KG

Operative part of the judgment

| 1. | Point (d) of the first subparagraph of Article 57(4) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, as amended by Commission Delegated Regulation (EU) 2017/2365 of 18 December 2017, read in conjunction with the third subparagraph of Article 80(1) of Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC, as amended by Commission Delegated Regulation (EU) 2017/2364 of 18 December 2017,
  must be interpreted as meaning that the optional ground for exclusion provided for in point (d) of the first subparagraph of Article 57(4) covers cases where there are sufficiently plausible indications to conclude that economic operators have entered into an agreement prohibited by Article 101 TFEU, but is not limited solely to the agreements provided for in that article. |
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1.

Point (d) of the first subparagraph of Article 57(4) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, as amended by Commission Delegated Regulation (EU) 2017/2365 of 18 December 2017, read in conjunction with the third subparagraph of Article 80(1) of Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC, as amended by Commission Delegated Regulation (EU) 2017/2364 of 18 December 2017,

must be interpreted as meaning that the optional ground for exclusion provided for in point (d) of the first subparagraph of Article 57(4) covers cases where there are sufficiently plausible indications to conclude that economic operators have entered into an agreement prohibited by Article 101 TFEU, but is not limited solely to the agreements provided for in that article.

| 2. | Article 57(4) of Directive 2014/24, as amended by Delegated Regulation 2017/2365, read in conjunction with the third subparagraph of Article 80(1) of Directive 2014/25, as amended by Delegated Regulation 2017/2364,
  must be interpreted as meaning that Article 57(4) exhaustively regulates the optional grounds for exclusion capable of justifying the exclusion of an economic operator from participation in a procurement procedure for reasons based on objective factors relating to its professional qualities, to a conflict of interest or to a distortion of competition that would arise from its involvement in that procedure. However, Article 57(4) does not prevent the principle of equal treatment, provided for in Article 36(1) of Directive 2014/25, as amended by Delegated Regulation 2017/2364, from precluding the award of the contract in question to economic operators which constitute an economic unit and whose tenders, although submitted separately, are neither autonomous nor independent. |
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2.

Article 57(4) of Directive 2014/24, as amended by Delegated Regulation 2017/2365, read in conjunction with the third subparagraph of Article 80(1) of Directive 2014/25, as amended by Delegated Regulation 2017/2364,

must be interpreted as meaning that Article 57(4) exhaustively regulates the optional grounds for exclusion capable of justifying the exclusion of an economic operator from participation in a procurement procedure for reasons based on objective factors relating to its professional qualities, to a conflict of interest or to a distortion of competition that would arise from its involvement in that procedure. However, Article 57(4) does not prevent the principle of equal treatment, provided for in Article 36(1) of Directive 2014/25, as amended by Delegated Regulation 2017/2364, from precluding the award of the contract in question to economic operators which constitute an economic unit and whose tenders, although submitted separately, are neither autonomous nor independent.

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(1)  OJ C 431, 25.10.2021.

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