Judgment — ECLI:EU:C:2017:784
Date: 2017-10-19
Language of the case: Italian
Court formation: Fifth Chamber
Subject matter: Provisions governing the Institutions;Freedom to provide services;Public procurement in the European Union
Procedure: Appeal - unfounded;Appeal - inadmissible;Action for damages
Origin: Italy

Summary — Judgment of the Court (Fifth Chamber), 19 October 2017 1. Appeal — Grounds — Mistaken assessment of the facts — Inadmissibility — Review by the Court of the findings of fact — Possible only where the clear sense of the evidence has been distorted — Review by the Court of whether the obligation to state reasons has been observed — Included (Art. 256(1), second para., TFEU; Statute of the Court of Justice, Art. 58, first para. ) 2. European Union public contracts — Tender procedure — Obligation to comply with the principle of equal treatment of tenderers — Scope — Different treatment of a tender as a result of doubts about it being abnormally low — No infringement — Obligation on the contracting authority to examine the abnormally low nature of the tender — Scope — Identification of the prima facie abnormally low nature of the tender following a comparison of all the tenders in the estimated budget in the tender specifications — Lawfulness (Commission Regulation No 2342/2002, Arts 139(1), and 146(4)) 3. Non-contractual liability — Conditions — Unlawfulness — Harm — Causal link — One of the conditions not satisfied — Claim for compensation dismissed in its entirety (Art. 340, second para., TFEU) 1. See the text of the decision. (see paras 30, 31, 34, 35, 64, 69) 2. The principle of equal treatment requires tenderers for a public contract 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. With regard to the different treatment of tenders linked to the issue of identifying abnormally low tenders, Article 139(1) of Regulation No 2342/2002 laying down detailed rules for the implementation of Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, means that the contracting authority is under a duty, first, to identify suspect tenders, secondly to allow the tenderers concerned to demonstrate their genuineness by asking them to provide the details which it considers appropriate, thirdly to assess the merits of the explanations provided by the persons concerned and, fourthly to take a decision as to whether to admit or reject those tenders. It is only on condition that the reliability of a tender is, a priori, doubtful that the obligations arising out of that provision are imposed on the contracting authority, including that of verifying in detail the seriousness of the prices offered using the reference economic parameters. Therefore, since the evaluation committee identifies a tenderer’s bid as being, prima facie, abnormally low, and considers that the bid of another tenderer does not, a priori, present any abnormality, it may, without infringing the principle of equal treatment between tenderers, initiate the adversarial procedure provided for in Article 139(1) of Regulation No 2342/2002 against the first tenderer and verify in detail its prices using the reference economic parameters without applying the same treatment to the second. That conclusion is not called into question by the argument that the price of a tender does not, in itself, lead to the conclusion that that tender is abnormally low. In the absence of a definition of the notion of an ‘abnormally low tender’ or of rules making it possible to identify such a tender under Article 139(1) or Article 146(4) of Regulation No 2342/2002, it falls to the contracting authority to determine the method used to identify abnormally low tenders, provided that that method is objective and non-discriminatory. In that regard, nothing prevents the contracting authority from comparing tenders with the estimated budget in the tender specifications and from identifying one of them as being, prima facie, abnormally low where the amount of that tender is considerably lower than the estimated budget. (see paras 47, 49-55, 57) 3. See the text of the decision. (see para. 77)