Judgment — ECLI:EU:C:2014:2345
Date: 2014-11-06
Language of the case: Italian
Court formation: Tenth Chamber
Subject matter: Competition;Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

summary of the facts in the main proceedings is inaccurate and deficient, it is sufficient to note, as is also apparent from paragraph 29 above, that it is for the national court alone to define the factual parameters of the dispute which gave rise to the questions and it is not the task of the Court of Justice to give a ruling on that court’s assessment of the facts (see, to that effect, judgment in van Delft and Others, C‑345/09, EU:C:2010:610, paragraph 114). 32 Finally, it is apparent from the very wording of the questions referred that the referring court is seeking from the Court of Justice not an examination of that factual background but an interpretation of EU law that will be of assistance in resolving the dispute before it. 33 It follows that the questions referred for a preliminary ruling are admissible. Substance 34 As a preliminary observation, it should be noted, first, that while the referring court does not mention Article 45 of Directive 2004/18 in its questions, it is apparent from the order for reference itself, in particular the introductory paragraph of the questions referred, that that court is unsure whether Article 38(1)(b) and (c) of Legislative Decree No 163/2006 complies with Article 45 of that directive. 35 Second, only the second question refers to failure on the part of an economic operator participating in a tendering procedure to comply with a provision contained in the contract documentation, such as the contract notice or the specifications, relating to the award procedure at issue in the main proceedings. However, the ground for exclusion referred to in both questions is the same and is set out, as is apparent from paragraph 10 above, in Article 8 of the contract specifications. 36 Accordingly, the national court must be regarded as asking by its questions, which it is appropriate to examine together, whether Article 45 of Directive 2004/18 must be interpreted as precluding the exclusion of an economic operator from a tendering procedure on the ground that the operator has failed to comply with a requirement laid down in the contract documentation to annex to the tender, on pain of exclusion, a statement to the effect that the person designated in the tender as the operator’s technical director has not been the subject of criminal proceedings or a conviction, where, at a date after the expiry of the deadline for submitting tenders, such a statement has been provided to the contracting authority or it is shown that the person in question was identified as the technical director in error. 37 As regards the question whether the contract at issue in the main proceedings falls within the scope of Directive 2004/18, the European Commission stated at the hearing that that contract is a public services contract, as defined in Article 1(2)(d) of the directive, and identified more specifically as Category 16 in Annex IIA to the directive. 38 On the other hand, CEM Ambiente is of the view that the object of the contract is an agreement for the sale and purchase of moveable goods or, in view of the requirement to process waste in the contract, that it is, at most, a service concession. Therefore, the contract does not, in any event, fall within the scope of Directive 2004/18. 39 In the first place, on the assumption that the contract at issue in the main proceedings falls within the scope of Directive 2004/18, which is a matter for the referring court to determine, it should be recalled that Article 45(1) and (2) of the directive sets out a series of grounds on which a tenderer may be excluded on the basis of his personal situation. Article 45(3) indicates which documents the contracting authorities are required to accept as sufficient evidence of the fact that none of the cases identified in Article 45(1) and (2) applies to the tenderer in question, with the exception of the situations referred to in Article 45(2)(d) and (g). 40 It is not apparent from the order for reference that the question whether the grounds for exclusion set out in Article 38(1)(b) and (c) of Legislative Decree No 163/2006 and the requirement to submit a ‘sworn statement’ laid down in Article 38(2) of that decree are compatible with those provisions of Directive 2004/18 is in issue in the main proceedings. Nor is it claimed in those proceedings that the exclusion of a tenderer from the contract on the ground that the tenderer has failed to comply with that requirement is, in itself, contrary to the directive. However, the referring court has doubts as to the compatibility with European Union law of the fact that it is impossible for such a tenderer, after submitting his bid, to remedy the fact that he failed to annex such a statement to his bid, whether by submitting such a statement to the contracting authority directly or by showing that the person concerned was identified as the technical director in error. 41 In that regard, it is common ground that it is apparent from the contract documentation in question in the main proceedings, first, that the ‘sworn statement’ referred to in Article 38 of Legislative Decree No 163/2006 concerning the person designated as technical director of the economic undertaking concerned had to be annexed to the bid submitted by the undertaking, on pain of exclusion from the tender procedure and, second, that it was possible to remedy a posteriori merely irregularities which were purely formal and not decisive for the assessment of the bid. 42 The Court has already held that the contracting authority must comply strictly with the criteria which it has itself established, so that it is required to exclude from the contract an economic operator who has failed to provide a document or information which he was required to produce under the terms laid down in the contract documentation, on pain of exclusion (see, to that effect, judgment in Manova, C‑336/12, EU:C:2013:647, paragraph 40). 43 That strict requirement on the part of contracting authorities has its origins in the principle of equal treatment and the obligation of transparency deriving from that principle, to which those authorities are subject in accordance with Article 2 of Directive 2004/18. 44 First, the principle of equal treatment requires tenderers to be afforded equality of opportunity when formulating their bids, which therefore implies that the bids of all tenderers must be subject to the same conditions. Second, the obligation of transparency is intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. It implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or specifications so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, second, the contracting authority is able to ascertain whether the bids submitted satisfy the criteria applying to the contract in question (see, to that effect, judgment in Commission v CAS Succhi di frutta, C‑496/99 P, EU:C:2004:236, paragraphs 108 to 111). 45 It follows that, in circumstances such as those in the main proceedings, Article 45 of Directive 2004/18, read in conjunction with Article 2 of the directive, does not preclude the exclusion of a tenderer on the ground that he has omitted to annex to his bid a sworn statement relating to the person identified in the bid as technical director. In particular, in so far as the contracting authority takes the view that that omission is not a purely formal irregularity, it cannot allow the tenderer subsequently to remedy the omission in any way after the expiry of the deadline for submitting bids. 46 Furthermore, in such circumstances, Article 51 of Directive 2004/18, which provides that the contracting authority may invite operators to supplement or clarify the certificates and documents submitted pursuant to Articles 45 to 50 of the directive, cannot be interpreted as permitting that authority to accept any rectification of omissions which, as expressly provided for in the contract documentation, must result in the exclusion of the bid. 47 In the second place, on the assumption that the contract in question in the proceedings before the national court is a services concession, it should be noted that, if, at the material time, service concession contracts were not governed by any of the directives by which the EU legislature regulated public procurement, the public authorities which concluded such contracts were nevertheless required to comply with the fundamental rules of the FEU Treaty, in particular the principles of equal treatment and transparency (see, to that effect, judgments in Parking Brixen, C‑458/03, EU:C:2005:605, paragraphs 46 to 49, and Wall, C‑91/08, EU:C:2010:182, paragraph 33), where the services concession concerned has a certain cross-border interest in the light, inter alia, of its value and the place where it is carried out (see, to that effect, judgment in Ordine degli Ingegneri della Provincia di Lecce and Others, C‑159/11, EU:C:2012:187, paragraph 23 and the case-law cited). 48 In so far as the contract in question in the main proceedings has such an interest, which is a matter to be verified by the referring court, the principal of equal treatment and the obligation of transparency deriving from that principle require the contracting authority, as is apparent from paragraphs 42 and 44 above, to comply with the criteria which it has itself established, so that it will be required to exclude from the contract an economic operator who has failed to provide a document or information which he was under an obligation to produce under the terms laid down in the contract documentation, on pain of exclusion. 49 Accordingly, the exclusion of a tenderer such as Cartiera dell’Adda from a contract such as that at issue in the main proceedings must be regarded as consistent with the principle of equal treatment and the obligation of transparency, as fundamental rules of the FEU Treaty. 50 In the light of the foregoing, the answer to the questions referred is that Article 45 of Directive 2004/18, read in conjunction with Article 2 of the directive, and the principle of equal treatment and the obligation of transparency must be interpreted as not precluding the exclusion of an economic operator from a procurement procedure on the ground that the operator has failed to comply with the requirement laid down in the contract documentation to annex to his bid, on pain of exclusion, a statement to the effect that the person designated in the bid as the operator’s technical director has not been the subject of criminal proceedings or a conviction, even where, at a date after the expiry of the deadline for submitting bids, such a statement has been provided to the contracting authority or it is shown that the person in question was identified as the technical director in error. Costs 51 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 (Tenth Chamber) hereby rules: Article 45 of 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, as amended by Commission Regulation (EC) No 1177/2009 of 30 November 2009, read in conjunction with Article 2 of the directive, and the principle of equal treatment and the obligation of transparency must be interpreted as not precluding the exclusion of an economic operator from a procurement procedure on the ground that the operator has failed to comply with the requirement laid down in the contract documentation to annex to his bid, on pain of exclusion, a statement to the effect that the person designated in the bid as the operator’s technical director has not been the subject of criminal proceedings or a conviction, even where, at a date after the expiry of the deadline for submitting bids, such a statement has been provided to the contracting authority or it is shown that the person in question was identified as the technical director in error. [Signatures] * Language of the case: Italian.