# C_2021462EN.01001101.xml

| 15.11.2021 | EN | Official Journal of the European Union | C 462/11 |
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15.11.2021

EN

Official Journal of the European Union

C 462/11

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Judgment of the Court (Grand Chamber) of 7 September 2021 (request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas — Lithuania) — ‘Klaipėdos regiono atliekų tvarkymo centras’ UAB

(Case C-927/19) (1)

(Reference for a preliminary ruling - Public procurement - Directive 2014/24/EU - Article 58(3) and (4) - Article 60(3) and (4) - Annex XII - Conduct of procurement procedures - Selection of participants - Selection criteria - Methods of proof - Economic and financial standing of economic operators - Whether the leader of a temporary association of undertakings may rely on income received in relation to a previous public contract in the same area as the public contract at issue including where it did not itself exercise the activity which is the subject matter of the public contract at issue - Technical and professional ability of economic operators - Exhaustive nature of means of proof permitted by the directive - Article 57(4)(h), (6) and (7) - Award of public service contracts - Non-compulsory grounds for exclusion from participation in a procurement procedure - Inclusion on a list of economic operators excluded from procurement procedures - Joint liability of members of a temporary association of undertakings - Personal nature of the penalty - Article 21 - Protection of the confidentiality of information submitted to the contracting authority by an economic operator - Directive (EU) 2016/943 - Article 9 - Confidentiality - Protection of trade secrets - Applicability to procurement procedures - Directive 89/665/EEC - Article 1 - Right to an effective remedy)

(2021/C 462/10)

Language of the case: Lithuanian

Referring court

Lietuvos Aukščiausiasis Teismas

Parties to the main proceedings

Applicant:‘Klaipėdos regiono atliekų tvarkymo centras’ UAB

Intervening parties:‘Ecoservice Klaipėda’ UAB, ‘Klaipėdos autobusų parkas’ UAB, ‘Parsekas’ UAB, ‘Klaipėdos transportas’ UAB

Operative part of the judgment

| 1. | Article 58 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 must be interpreted as meaning that the obligation on economic operators to demonstrate that they have a certain average annual turnover in the area covered by the public contract at issue constitutes a selection criterion relating to the economic and financial standing of those operators, within the meaning of paragraph 3 of that provision; |
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1.

Article 58 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 must be interpreted as meaning that the obligation on economic operators to demonstrate that they have a certain average annual turnover in the area covered by the public contract at issue constitutes a selection criterion relating to the economic and financial standing of those operators, within the meaning of paragraph 3 of that provision;

| 2. | Article 58(3) in conjunction with Article 60(3) of Directive 2014/24 must be interpreted as meaning that, where the contracting authority has required that economic operators have achieved a certain minimum turnover in the area covered by the public contract in question, an economic operator may, in order to prove its economic and financial standing, rely on income received by a temporary group of undertakings to which it belonged only if it actually contributed, in the context of a specific public contract, to the performance of an activity of that group analogous to the activity which is the subject matter of the public contract for which that operator seeks to prove its economic and financial standing; |
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2.

Article 58(3) in conjunction with Article 60(3) of Directive 2014/24 must be interpreted as meaning that, where the contracting authority has required that economic operators have achieved a certain minimum turnover in the area covered by the public contract in question, an economic operator may, in order to prove its economic and financial standing, rely on income received by a temporary group of undertakings to which it belonged only if it actually contributed, in the context of a specific public contract, to the performance of an activity of that group analogous to the activity which is the subject matter of the public contract for which that operator seeks to prove its economic and financial standing;

| 3. | Article 58(4), Article 42 and Article 70 of Directive 2014/24 must be interpreted as meaning that they can apply simultaneously to a technical requirement set out in a call for tenders; |
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3.

Article 58(4), Article 42 and Article 70 of Directive 2014/24 must be interpreted as meaning that they can apply simultaneously to a technical requirement set out in a call for tenders;

| 4. | The fourth subparagraph of Article 1(1), Article 1(3) and (5) and Article 2(1)(b) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014, must be interpreted as meaning that a decision of a contracting authority refusing to disclose to an economic operator the information deemed confidential in the application file or in the tender of another economic operator is a measure amenable to review and that, where the Member State in which the public procurement procedure in question takes place has provided that any person wishing to challenge decisions taken by the contracting authority is required to seek administrative review before bringing an action before the courts, that Member State may also provide that judicial proceedings against that decision refusing access have to be preceded by such a prior administrative review procedure; |
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4.

The fourth subparagraph of Article 1(1), Article 1(3) and (5) and Article 2(1)(b) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014, must be interpreted as meaning that a decision of a contracting authority refusing to disclose to an economic operator the information deemed confidential in the application file or in the tender of another economic operator is a measure amenable to review and that, where the Member State in which the public procurement procedure in question takes place has provided that any person wishing to challenge decisions taken by the contracting authority is required to seek administrative review before bringing an action before the courts, that Member State may also provide that judicial proceedings against that decision refusing access have to be preceded by such a prior administrative review procedure;

| 5. | The fourth subparagraph of Article 1(1) and Article 1(3) and (5) of Directive 89/665, as amended by Directive 2014/23, and Article 21 of Directive 2014/24, read in the light of the general principle of EU law relating to good administration, must be interpreted as meaning that a contracting authority, when requested by an economic operator to disclose information deemed confidential contained in the tender of a competitor to which the contract has been awarded, is not required to communicate that information where its disclosure would infringe the rules of EU law relating to the protection of confidential information, even if that request is made in the context of an action brought by that operator challenging the lawfulness of the contracting authority’s assessment of the competitor’s tender. Where it refuses to disclose such information or where, while refusing such disclosure, it dismisses the application for administrative review lodged by an economic operator concerning the lawfulness of the assessment of the tender of the competitor concerned, the contracting authority is required to balance the applicant’s right to good administration with its competitor’s right to protection of its confidential information in order that the refusal or dismissal decision is supported by a statement of reasons and the unsuccessful tenderer’s right to an effective remedy is not rendered ineffective; |
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5.

The fourth subparagraph of Article 1(1) and Article 1(3) and (5) of Directive 89/665, as amended by Directive 2014/23, and Article 21 of Directive 2014/24, read in the light of the general principle of EU law relating to good administration, must be interpreted as meaning that a contracting authority, when requested by an economic operator to disclose information deemed confidential contained in the tender of a competitor to which the contract has been awarded, is not required to communicate that information where its disclosure would infringe the rules of EU law relating to the protection of confidential information, even if that request is made in the context of an action brought by that operator challenging the lawfulness of the contracting authority’s assessment of the competitor’s tender. Where it refuses to disclose such information or where, while refusing such disclosure, it dismisses the application for administrative review lodged by an economic operator concerning the lawfulness of the assessment of the tender of the competitor concerned, the contracting authority is required to balance the applicant’s right to good administration with its competitor’s right to protection of its confidential information in order that the refusal or dismissal decision is supported by a statement of reasons and the unsuccessful tenderer’s right to an effective remedy is not rendered ineffective;

| 6. | The fourth subparagraph of Article 1(1) and Article 1(3) and (5) of Directive 89/665, as amended by Directive 2014/23, and Article 21 of Directive 2014/24, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that the competent national court, hearing an action brought against a decision of a contracting authority refusing to disclose to an economic operator information deemed confidential in the documents submitted by the competitor to which the contract has been awarded or an action brought against the decision of a contracting authority dismissing an application for administrative review lodged against such a decision, is required to weigh the applicant’s right to an effective remedy against its competitor’s right to protection of its confidential information and trade secrets. To that end, that court, which must necessarily have at its disposal the information required, including confidential information and trade secrets, in order to be able to determine, with full knowledge of the facts, whether that information can be disclosed, must examine all the relevant matters of fact and of law. It must also be able to annul the refusal decision or the decision dismissing the application for administrative review if they are unlawful and, where appropriate, refer the case back to the contracting authority, or itself adopt a new decision if it is permitted to do so under national law; |
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6.

The fourth subparagraph of Article 1(1) and Article 1(3) and (5) of Directive 89/665, as amended by Directive 2014/23, and Article 21 of Directive 2014/24, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that the competent national court, hearing an action brought against a decision of a contracting authority refusing to disclose to an economic operator information deemed confidential in the documents submitted by the competitor to which the contract has been awarded or an action brought against the decision of a contracting authority dismissing an application for administrative review lodged against such a decision, is required to weigh the applicant’s right to an effective remedy against its competitor’s right to protection of its confidential information and trade secrets. To that end, that court, which must necessarily have at its disposal the information required, including confidential information and trade secrets, in order to be able to determine, with full knowledge of the facts, whether that information can be disclosed, must examine all the relevant matters of fact and of law. It must also be able to annul the refusal decision or the decision dismissing the application for administrative review if they are unlawful and, where appropriate, refer the case back to the contracting authority, or itself adopt a new decision if it is permitted to do so under national law;

| 7. | Article 57(4) of Directive 2014/24 must be interpreted as meaning that a national court, hearing a dispute between an economic operator excluded from the award of a contract and a contracting authority, may depart from the latter’s assessment of the lawfulness of the conduct of the economic operator to which the contract was awarded and, accordingly, draw all the necessary inferences in its decision. However, in accordance with the principle of equivalence, such a court may raise of its own motion the issue of an error of assessment made by the contracting authority only if permitted to do so under national law; |
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7.

Article 57(4) of Directive 2014/24 must be interpreted as meaning that a national court, hearing a dispute between an economic operator excluded from the award of a contract and a contracting authority, may depart from the latter’s assessment of the lawfulness of the conduct of the economic operator to which the contract was awarded and, accordingly, draw all the necessary inferences in its decision. However, in accordance with the principle of equivalence, such a court may raise of its own motion the issue of an error of assessment made by the contracting authority only if permitted to do so under national law;

| 8. | Article 63(1) of Directive 2014/24, read in conjunction with Article 57(4) and (6) of that directive, must be interpreted as precluding national legislation under which, where an economic operator which is a member of a group of economic operators has been guilty of serious misrepresentation in supplying the information required for the verification, as regards that group, of the absence of grounds for exclusion or the fulfilment of the selection criteria, without the other members of that group having been aware of that misrepresentation, all of the members of that group may be excluded from participation in any public procurement procedure. |
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8.

Article 63(1) of Directive 2014/24, read in conjunction with Article 57(4) and (6) of that directive, must be interpreted as precluding national legislation under which, where an economic operator which is a member of a group of economic operators has been guilty of serious misrepresentation in supplying the information required for the verification, as regards that group, of the absence of grounds for exclusion or the fulfilment of the selection criteria, without the other members of that group having been aware of that misrepresentation, all of the members of that group may be excluded from participation in any public procurement procedure.

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(1)  OJ C 77, 9.3.2020.

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