Opinion of the Advocate General — ECLI:EU:C:2017:365
Date: 2017-05-11
Language of the case: Italian
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary — Judgment of the Court (First Chamber), 14 September 2017 1. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2014/24 — Temporal application — Decision of the contracting authority choosing the type of procedure to be followed for the award of a contract which is adopted before the transposition deadline of that directive — Inapplicability of the directive — Interpretation of the provisions of Directive 2004/18 in the light of those of Directive 2014/24 — Conditions (European Parliament and Council Directives 2004/18, Art. 48(3) and 2014/24, Art. 63(1)) 2. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Award of contracts — Principles of equal treatment of tenderers and transparency — Scope — Acceptance by the contracting authority, after the opening of the bids, of a tenderer’s request to substantially change its tender — Unlawful (European Parliament and Council Directive 2004/18, Art. 2) 3. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Award of contracts — Criteria for qualitative selection — Economic and financial standing, technical and/or professional ability — Possibility to rely on the capacities of other entities — National legislation precluding the replacement of such an entity in case of loss of the qualifications required and thus resulting in the exclusion of the tenderer concerned from the procurement procedure — Lawfulness (European Parliament and Council Directive 2004/18, Arts 47(2) and 48(3)) 1. See the text of the decision. (see paras 21, 26-28) 2. See the text of the decision. (see paras 34, 35) 3. Articles 47(2) and 48(3) 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 must be interpreted as not precluding national legislation which excludes the possibility for an economic operator taking part in a tendering procedure to replace an auxiliary undertaking that has lost required qualifications after the submission of its tender and which results in the automatic exclusion of that operator. In the main proceedings, as the Advocate General observed in point 47 of his Opinion, the possibility afforded, unpredictably, exclusively to a consortium of undertakings to replace a third-party undertaking which belongs to that consortium and has lost a qualification that is required in order not to be excluded would amount to a substantial change of the tender and the very identity of the consortium. Indeed, such a change of the tender would compel the contracting authority to carry out new checks whilst at the same time granting a competitive advantage to that consortium which might attempt to optimise its tender in order to deal better with its competitors’ tenders in the procurement procedure at issue. Such a situation would be contrary to the principle of equal treatment which requires that tenderers be afforded equality of opportunity when formulating their bids and which implies that the bids of all tenderers must be subject to the same conditions, and would amount to a distortion of healthy and effective competition between undertakings participating in a public procurement procedure. (see paras 39, 40, 42, operative part)