Judgment — ECLI:EU:C:2015:166
Date: 2015-03-12
Language of the case: Lithuanian
Court formation: Fifth Chamber
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Lithuania

Summary — Judgment of the Court (Fifth Chamber), 12 March 2015 1. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directives 89/665 and 2004/18 — Award of contracts — Principles of transparency and of equal treatment of tenderers — Scope — Connection between the successful tenderer and the experts appointed by the contracting authority — Element sufficient for a finding that the evaluation of the tenders is unlawful– Burden of proof (Directive 2004/18 of the European Parliament and of the Council, Arts 2, 44(1) and 53(1)(a); Council Directive 89/665, as amended by Directive 2007/66, Art. 1(1), third subpara.) 2. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directives 89/665 and 2004/18 — Time-limit for instituting proceedings — Action for a declaration that the conditions of a call for tenders are unlawful — Point from which time begins to run — Date on which those conditions were comprehended by well-informed and diligent tenderers, where appropriate, until the communication of the award of the contract (Directive 2004/18 of the European Parliament and of the Council, Arts 2, 44(1) and 53(1)(a); Council Directive 89/665, as amended by Directive 2007/66, Art. 1(1), third subpara.) 3. Approximation of laws — Procedure for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Conduct of the procedure — Award of contracts — Criteria for evaluating tenderers — Degree of conformity of the tenders submitted with the requirements included in the tender documentation — Lawfulness (Directive 2004/18 of the European Parliament and of the Council, Arts 2, 53(1)(a)) 1. The third subparagraph of Article 1(1) of Directive 89/665 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 2007/66, and Articles 2, 44(1) and 53(1)(a) of Directive 2004/18 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 a finding that the evaluation of the tenders is unlawful solely on the grounds that the tenderer has had significant connections with experts appointed by the contracting authority who evaluated the tenders. The contracting authority is, at all events, required to determine the existence of possible conflicts of interests and to take appropriate measures in order to prevent and detect conflicts of interests and remedy them. In the context of the examination of an action for annulment of an award decision on the ground that the experts were biased, the unsuccessful tenderer may not be required to provide tangible proof of the experts’ bias. It is, in principle, a matter of national law to determine whether, and if so to what extent, the competent administrative and judicial control authorities must take account of the fact that possible bias on the part of experts has had an effect on the decision to award the contract. A conflict of interests entails the risk that the contracting authority may choose to be guided by considerations unrelated to the contract in question and that on account of that fact alone preference may be given to a tenderer. Such a conflict of interests is thus liable to constitute an infringement of Article 2 of Directive 2004/18. In that regard, the fact that the contracting authority appointed experts acting on its mandate in order to evaluate the tenders submitted does not relieve that authority of its responsibility to comply with the requirements of EU law. The finding of bias on the part of an expert requires in particular the assessment of facts and evidence that comes within the competence of the contracting authorities and the administrative or judicial control authorities. Concerning the rules on evidence in that regard, in accordance with Article 2 of Directive 2004/18, the contracting authorities are to treat economic operators equally and non-discriminatorily and to act in a transparent way. It follows that they are assigned an active role in the application of those principles of public procurement. Thus, if the unsuccessful tenderer presents objective evidence calling into question the impartiality of one of the contracting authority’s experts, it is for that contracting authority to examine all the relevant circumstances having led to the adoption of the decision relating to the award of the contract in order to prevent and detect conflicts of interests and remedy them, including, where appropriate, requesting the parties to provide certain information and evidence. (see paras 35-37, 42, 44, 47 operative part 1) 2. The third subparagraph of Article 1(1) of Directive 89/665 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 2007/66, and Articles 2, 44(1) and 53(1)(a) of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as requiring a right to bring an action relating to the lawfulness of the tender procedure to be open, after the expiry of the period prescribed by national law, to reasonably well-informed and normally diligent tenderers who could understand the tender conditions only when the contracting authority, after evaluating the tenders, provided exhaustive information relating to the reasons for its decision. Such a right to bring an action may be exercised until the period prescribed for bringing proceedings against the decision to award the contract has expired. (see para. 58, operative part 1) 3. Articles 2 and 53(1)(a) of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as allowing, in principle, a contracting authority to use, as an evaluation criterion of tenders submitted by the tenderers for a public contract, the degree to which they are consistent with the requirements in the tender documentation. Since the list of tender evaluation criteria in Article 53(1)(a) thereof is non-exhaustive, the contracting authority has the power to establish other award criteria, in so far as they are connected with the purpose of the contract and respect the principles set out in Article 2 of Directive 2004/18. (see paras 60-62, 65, operative part 2)