# C_2019220EN.01002201.xml

| 1.7.2019 | EN | Official Journal of the European Union | C 220/22 |
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1.7.2019

EN

Official Journal of the European Union

C 220/22

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Request for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 19 April 2019 — Nobina Finland Oy

(Case C-327/19)

(2019/C 220/28)

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Applicant: Nobina Finland Oy

Other parties: Helsingin seudun liikenne-kuntayhtymä, Oy Pohjolan Kaupunkiliikenne Ab

Questions referred

| 1. | Does Directive 2004/17/EC (1) of the European Parliament and of the Council coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (‘Directive 2004/17’) preclude an interpretation according to which, in a situation in which a tender can be submitted for several or all of the lots of a contract, a contracting authority can limit, by means of a clause included in the invitation to tender, the number of lots for which a single tenderer can be awarded a contract (a lot award limitation clause)? |
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1.

Does Directive 2004/17/EC (1) of the European Parliament and of the Council coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (‘Directive 2004/17’) preclude an interpretation according to which, in a situation in which a tender can be submitted for several or all of the lots of a contract, a contracting authority can limit, by means of a clause included in the invitation to tender, the number of lots for which a single tenderer can be awarded a contract (a lot award limitation clause)?

| 2. | Pursuant to the lot award limitation clause included in the call for competition for bus transport at issue, if the components of the subject matter of a contract that are won by a tenderer exceed the maximum number of vehicle days laid down in the clause, then the subject matter of the contract for which the points difference between the best and the second-best tender, multiplied by the number of vehicles of that subject matter of the contract, is the smallest is transferred to the tenderer that submitted the second-best tender. The use of the lot award limitation clause can mean that, on the basis of the call for competition, the tenderer that submitted the best tender for the subject matter of the contract in question is awarded a contract for fewer vehicle days in total than the tenderer that submitted the second-best tender for the subject matter of the contract.






  a) | Can the specific outcome to which the inclusion of the lot award limitation clause in the call for competition could lead be taken into account when assessing the permissibility of the lot award limitation clause, or must this be assessed on an abstract basis, so that the inclusion of a lot award limitation clause such as that in question in the main proceedings is either permissible or not permissible pursuant to Directive 2004/17? |
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2.

Pursuant to the lot award limitation clause included in the call for competition for bus transport at issue, if the components of the subject matter of a contract that are won by a tenderer exceed the maximum number of vehicle days laid down in the clause, then the subject matter of the contract for which the points difference between the best and the second-best tender, multiplied by the number of vehicles of that subject matter of the contract, is the smallest is transferred to the tenderer that submitted the second-best tender. The use of the lot award limitation clause can mean that, on the basis of the call for competition, the tenderer that submitted the best tender for the subject matter of the contract in question is awarded a contract for fewer vehicle days in total than the tenderer that submitted the second-best tender for the subject matter of the contract.

a)

Can the specific outcome to which the inclusion of the lot award limitation clause in the call for competition could lead be taken into account when assessing the permissibility of the lot award limitation clause, or must this be assessed on an abstract basis, so that the inclusion of a lot award limitation clause such as that in question in the main proceedings is either permissible or not permissible pursuant to Directive 2004/17?

| b) | Are the circumstances specified in the invitation to tender as justification for the clause — which are related to the preservation of the competitive situation in public bus transport in the Helsinki region and the reduction of the operational risk that the assumption of responsibility for a high volume of transport and the establishment of transport on changed lines entail for the quality of the transport service — relevant to the assessment of the permissibility of a lot award limitation clause such as that at issue in the main proceedings? |
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b)

Are the circumstances specified in the invitation to tender as justification for the clause — which are related to the preservation of the competitive situation in public bus transport in the Helsinki region and the reduction of the operational risk that the assumption of responsibility for a high volume of transport and the establishment of transport on changed lines entail for the quality of the transport service — relevant to the assessment of the permissibility of a lot award limitation clause such as that at issue in the main proceedings?

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

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