Judgment;Summary — ECLI:EU:C:2021:232
Date: 2021-03-24
Language of the case: Greek
Court formation: Tenth Chamber
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Greece

Summary C-771/19 - 1 
Case C-771/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
21 October 2019 
Referring court: 
Symvoulio tis Epikrateias (Council of State, Greece) 
Date of the decision to refer: 
12 September 2019 
Applicants:  
NAMA SΥΜVΟULΟΙ ΜICHΑΝΙΚΟΙ ΚΑΙ ΜΕLΕΤIΤΕS S.A. — 
LDK SΥΜVΟULΟΙ ΜICHΑΝΙΚΟΙ S.A. 
NAMA SΥΜVΟULΟΙ ΜICHΑΝΙΚΟΙ ΚΑΙ ΜΕLΕΤIΤΕS S.A. 
LDK SΥΜVΟULΟΙ ΜICHΑΝΙΚΟΙ S.A. 
Defendant:  
Αrchi Εxetasis Prodikastikon Prosfygon (ΑΕPP) 
ΑΤΤΙΚΟ ΜΕΤRΟ S.A. 
Interveners: 
SΑLFO & SΥΝΕRGΑΤΕS S.Α. ΜΕLΕΤIΤΙΚOΝ ΥPIRΕSΙOΝ 
ΤΕCHΝΙΚOΝ ΕRGOΝ-GRΑFΕΙΟ DΟXΙΑDΗ SΥΜVΟULΟΙ GΙΑ 
ΑΝΑPΤΥXI ΚΑΙ ΟΙΚΙSΤΙΚI S.A.-TPF GETINSA 
EUROESTUDIOS S.L. 
SΑLFO ΚΑΙ SΥΝΕRGΑΤΕS ΑΝOΝΥΜI ΕΤΑΙRΙΑ 
ΜΕLΕΤIΤΙΚOΝ ΥPIRΕSΙOΝ ΤΕCHΝΙΚOΝ ERGON 
GRΑFΕΙΟ DΟXΙΑDΗ SΥΜVΟULΟΙ GΙΑ ΑΝΑPΤΥXI ΚΑΙ 
ΟΙΚΙSΤΙΚI ANONYMOS ETAIREIA 
TPF GETINSA EUROESTUDIOS SOCIEDAD LIMITADA 
EN 
REQUEST FOR A PRELIMINARY RULING – CASE C-771/19 
 
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Subject matter of the main proceedings 
Application for suspension of enforcement of: 1. Decision No 541, 542/2019 of 
the Αrchi Εxetasis Prodikastikon Prosfygon (‘ΑΕPP’); 2. Decision 
No  1498(e)/06.03.2019 of the Board of Directors of ΑΤΤΙΚΟ ΜΕΤRΟ S.A., 
whereby the first applicant was excluded from participation in a public 
procurement procedure, and any other related act or omission of the administrative 
authority. 
Subject matter and legal basis of the reference for a preliminary ruling 
Interpretation of Articles 1(3), 2(1)(a) and (b) and 2a(2) of Directive 92/13/ΕEC, 
in particular in light of the case-law of the Court in Fastweb (C-100/12), PFE 
(C-689/13), Bietergemeinschaft Technische Gebäudebetreuung und Caverion 
Österreich (‘BTG’)(C-355/15), Archus and Gama (C-131/16) and Lombardi 
(C-333/18); Article 267 TFEU. 
Questions referred 
1. a) Do Articles 1(3), 2(1)(a) and (b) and 2a(2) of Council Directive 
92/13/ΕEC of 25 February 1992 coordinating the laws, regulations and 
administrative provisions relating to the application of Community rules on the 
procurement procedures of entities operating in the water, energy, transport and 
telecommunications sectors (OJ 1992 L 76, p. 14), interpreted in light of the 
judgments in Fastweb (C-100/12), PFE (C-689/13), Archus and Gama (C-131/16) 
and Lombardi (C-333/18), conflict with national judicial practice whereby if, by 
decision of the contracting authority, one competitor is excluded from, and 
another interested party (competitor) is admitted to, a stage of the procurement 
procedure prior to the final contract award stage (for example the stage for the 
examination of technical bids) and the court with jurisdiction dismisses the part of 
its application for suspension contesting its exclusion, the excluded competitor 
retains a legal interest in contesting the admission of the other competitor, by the 
same application for suspension, only if the other competitor was admitted in 
breach of the same criterion? 
b) If the answer to Question 1a is in the affirmative, do the above provisions mean 
that the tenderer excluded as described above may, by its application for 
suspension, raise any complaint against the participation of its competitor in the 
procurement procedure; in other words, it may also complain of other, separate, 
shortcomings in the competitor’s bid which have no bearing on the shortcomings 
for which its bid was excluded, in order to obtain suspension of the competition 
and of the award of the contract to its competitor in a decision to be adopted at a 
later stage of the procedure, so that if the main remedy (application for annulment) 
is subsequently upheld, its competitor will be excluded, the contract award will be 
cancelled and the only remaining possibility will be to launch a new contract 
award procedure in which the excluded applicant will participate? 
NAMA AND OTHERS. 
 
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2. In light of judgment in Bietergemeinscaft Technische Gebäudebetreuung 
und Caverion Österreich (C-355/15), is the answer to the previous question 
affected by the fact that provisional (but not final) judicial protection depends on 
an application for review having previously been dismissed by an independent 
national review board? 
3. Is the answer to the first question affected by (a) the finding that, if the 
excluded tenderer’s complaints against its competitor’s participation in the 
competition are upheld, it will not be possible to issue a new notice of competition 
or (b) the fact that the reason the applicant was excluded will make it impossible 
for it to participate if a new competition is announced? 
Provisions of EU law and case-law of the Court of Justice relied on 
Articles 1(1) and (3), 2(1)(a) and (b) and 2a(1) and (2) of Council Directive 
92/13/EEC of 25 February 1992 coordinating the laws, regulations and 
administrative provisions relating to the application of Community rules on the 
procurement procedures of entities operating in the water, energy, transport and 
telecommunications sectors (OJ 1992 L 76, p. 14), as amended. 
Judgments of 4 July 2013, Fastweb, C-100/12, EU:C:2013:448; of 5 April 2016, 
PFE, C-689/13, EU:C:2016:199; of 21 December 2016, Bietergemeinschaft 
Technische Gebäudebetreuung und Caverion Österreich, C-355/15, 
EU:C:2016:988 (‘BTG’); of 11 May 2017, Archus and Gama, C-131/16, 
EU:C:2017:358; and of 5 September 2019, Lombardi, C-333/18, EU:C:2019:675.  
Provisions of national law cited 
Law 4412/2016, Public Works, Supply and Service Contracts (Government 
Gazette I/147, corrected version Government Gazette I/200).  
The system for providing judicial protection during the stage leading up to the 
conclusion of public contracts was reorganised under Law 4412/2016 
(Articles 345-374) by establishing a central independent administrative authority 
(AEPP) responsible for the preliminary review of decisions adopted by 
contracting authorities and contracting entities and by providing the possibility of 
lodging an application for suspension and an application for annulment of 
decisions adopted by that authority.  
In terms of judicial protection at this stage, Article 372 provides in respect of 
contracts that fall within the scope of Directive 2014/25/EU that anyone with a 
legitimate interest may seek suspension of enforcement and annulment of a 
decision of the AEPP by the Council of State. It also sets out the preconditions to, 
the deadlines for and the effects of those remedies.  
Article 372 also provides as follows:  
REQUEST FOR A PRELIMINARY RULING – CASE C-771/19 
 
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‘4. An application for suspension may be lodged whether or not an application 
for annulment has been lodged. …Applications for suspension are admitted where 
there is strong prima facie evidence that a rule of EU law or of national law has 
been infringed and the suspension is necessary in order to remedy the adverse 
effects of the infringement or prevent harm to the applicant’s interests. However, 
applications may be dismissed if, having considered the harm to the applicant, 
third party interests and overriding grounds of general public interest, the court 
finds that the adverse effects of admitting the application would outweigh the 
benefit to the applicant. …An application for suspension prevents the conclusion 
of the contract, unless the competent court grants a provisional order to the 
contrary …. 7. If the court annuls an act or omission of the contracting authority 
after the contract concerned has been awarded, the contract is not affected unless 
the award procedure was suspended by decision of the AEPP or in a decision on 
an application for suspension or by provisional order before it was awarded. In 
that case, the interested party shall be entitled to claim damages …’ 
Brief summary of the facts and proceedings 
1 The second defendant (ATTIKO METRO S.A.) announced an international, 
online. open procedure for ‘Technical Consultancy Services for Athens Metro 
Projects’. The total budget was EUR 21 639 924.90 plus VAT and the award 
criterion was the most financially advantageous bid based on an optimum 
quality/price ratio. The purpose of the competition was to obtain the additional 
expertise needed by ATTIKO METRO S.A. in order to implement its projects (to 
extend the Athens Metro lines).  
2 According to the notice, the competition is being held in two phases: in the first 
phase, competitors’ supporting documents and technical bids are examined and 
the following tenderers are excluded: a) those which do not fulfil the 
preconditions and requirements governing supporting documents; b) those whose 
technical bid is rejected following technical evaluation.  
3 Technical evaluation takes place in two stages: in the first stage, compliance of the 
proposed technical staff with the minimum requirements of the notice is examined 
based on a pass/fail system. In the second stage of the technical bid evaluation 
process, the technical bids not rejected in the first stage are compared and graded. 
Once the supporting documents and technical bids have been examined and the 
grades of the technical bids have been finalised, the competition committee 
finalises its Phase 1 Evaluation Report. 
4 Tenderers which fulfil the preconditions of the first phase participate in the second 
phase, that is in the procedure for unsealing financial bids and conducting an 
overall evaluation of the financial bids. 
5 Four economic operators (including the first applicant and the first intervener) 
participated in the competition concerned. It was found on examination of its 
supporting documents that the consortium of ADT OMEGA SYMVOULOI 
NAMA AND OTHERS. 
 
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MICHANIKOI A.T.E. and others did not fulfil the terms of the notice; therefore, 
the Competition Committee recommended in the first stage of the examination of 
technical bids that the bids of the applicant consortium and of the consortium 
AECOM Ltd-Hill International N.V.-Rina Consulting S.p.A. be rejected.  
6 The Competition Committee’s conclusions from its examination and evaluation of 
the supporting documents were approved by decision no 1498(e) adopted by the 
Board of Directors of ATTIKO METRO on 6 March 2019. The bids of the three 
aforesaid consortia of companies were accepted and the consortium ADT 
OMEGA SYMVOULOI MICHANIKOI A.T.E. and others was excluded. By that 
decision, it was decided with regard to the first stage of the evaluation of technical 
bids that, of the three consortia remaining at that stage, only the intervener in these 
proceedings met all the criteria and minimum requirements laid down in the notice 
and that the other two consortia, namely (1) the consortium AECOM Ltd and 
others and (2) the applicant, were excluded from further participation in the 
competition. With specific regard to the applicant, ATTIKO METRO found that 
three senior members of its project team did not have the necessary experience 
stipulated in the notice. By the same decision, the intervener was permitted, 
following completion of the second stage of the evaluation (and grading) of 
technical bids, to participate in the second phase of the competition (unsealing of 
its financial bid). 
7 The applicant consortium lodged an application for preliminary review by the 
AEPP of the decision adopted by the contracting entity’s board of directors, by 
which it raised complaints in respect of the rejection of its technical bid and its 
exclusion from the procurement procedure and in respect the acceptance of the 
intervening consortium’s technical bid. By its decision no 541, 542 adopted on 
21 May 2019, the AEPP upheld the part of the applicant’s application for 
preliminary review contesting the contracting entity’s decision regarding proof of 
experience of one of the senior members of its project team; the rest of the 
application was dismissed.  
8 The applicant then lodged the application for suspension under consideration with 
the referring court’s Suspension Chamber.  
Brief summary of the basis for the reference 
9 The applicant made a series of allegations before the referring court’s Suspension 
Chamber in connection with the rejection of its bid. It argued, first, that its 
exclusion from the competition was unlawful (specifically that the experience of 
some of its senior staff was wrongly evaluated) and, second, that it infringed the 
principle of a level playing field (specifically that the same shortcomings in 
competitors’ bids were evaluated differently).  
10 In its order for reference, the Suspension Chamber examines in detail and 
ultimately rejects these allegations, finding either that they cannot be reliably 
REQUEST FOR A PRELIMINARY RULING – CASE C-771/19 
 
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regarded as well-founded or that they are inadmissible, irrelevant or have been 
brought without any legal interest. 
11 It was until recently the settled case-law of the Council of State Suspension 
Chamber that if, as above, the unlawful exclusion of the applicant or infringement 
of the principle of a level playing field cannot be reliably established, the 
applicant has no legal interest in challenging the acceptance of the intervener’s bid 
and its participation in the next phase of the competition, given that its exclusion 
renders it a third party in respect of the competition. 
12 However, according to the applicant, the above settled case-law of the Council of 
State does not apply in this case in light of the case-law already established by the 
Court of Justice of the European Union. It argues in particular that, based on the 
case-law of the Court and on recent decisions by the Council of State Suspension 
Chamber, an excluded tenderer which has unsuccessfully challenged its exclusion 
has a legal interest in initiating court proceedings to have its competitors excluded 
and the contract award cancelled, irrespective of the stage of the competition in 
which it was excluded under national law, provided that the excluded tenderer has 
not been ‘definitively excluded’. Therefore, the applicant claims that it retains its 
legal interest in challenging the intervening association’s bid and it puts forward a 
number of reasons why acceptance of the intervener’s technical bid was unlawful. 
13 The referring court analyses the relevant case-law of the Court as follows. 
14 The Court deduced a generally applicable principle of case-law from its initial 
interpretation of Directive 89/665/ΕEC and its subsequent interpretation of 
Directive 92/13/ΕEC, according to which every competitor in a public 
procurement procedure has a legal interest in having the other competitors’ bids 
excluded with the aim of obtaining the public contract (judgment in BTG, 
C-355/15, paragraph 29). According to the Court, where the validity of the bid 
submitted by each of the competitors is challenged, each competitor can claim a 
legitimate interest in the exclusion of the other competitors, which may lead to a 
finding that the contracting authority is unable to select a lawful bid (judgment in 
Fastweb, C-100/12, paragraph 33), irrespective of the number of participants in 
the procedure and the number of participants which instigate review (judgment in 
PFE, C-689/13, paragraph 29). The Court starts from the premise that the 
exclusion of one tenderer may lead to the other being awarded the contract 
directly in the same procedure or, if both tenderers are excluded and a new public 
procurement procedure is launched, the excluded competitor may participate in 
the new procedure and thus obtain the contract indirectly (judgment in PFE, 
C-689/13, paragraph 27). According to the Court, Directive 89/665/EC ensures 
effective review of unlawful decisions adopted in the context of a public 
procurement procedure by enabling any excluded tenderer to challenge not only 
the exclusion decision, but also, as long as that challenge has not been resolved, 
the subsequent decisions which would harm it if its exclusion were annulled 
(judgment in BTG, C-355/15, paragraph 34). 
NAMA AND OTHERS. 
 
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15 In the judgment Archus and Gama (C-131/16), the Court fleshed out the general 
principle of case-law previously established by taking account of the 
circumstances of the case in point, in which a competitor had challenged both the 
decision excluding it and the simultaneous decision awarding the contract to the 
other and only remaining competitor. The Court found (paragraphs 51 to 56) that, 
where the public procurement procedure results in the submission of two tenders 
and the adoption of two simultaneous decisions by the contracting authority, the 
first rejecting the tender of one of the tenderers and the second awarding the 
public contract to the other tenderer, the excluded tenderer has a legitimate 
interest in challenging both the decision excluding it and the decision awarding 
the contract, given that, if that part of its challenge is upheld, it may even lead to a 
finding that the contracting authority is unable to select a lawful bid and, by 
extension, to the launch of a new procedure to award the contract in which it can 
participate and thus obtain the contract indirectly. In such a situation, the concept 
of ‘a particular contract’ within the meaning of Article 1(3) of Directive 92/13 
may, where appropriate, apply to the possible initiation of a new public 
procurement procedure (paragraph 58). For the avoidance of confusion, the Court 
compared the case of Archus and Gama (C-131/16) with the case of BTG 
(C-355/15). It held that, whereas in the second case the decision to exclude that 
tenderer had been confirmed by a decision that had the force of res judicata before 
the national court hearing the challenge of the contract award decision had 
delivered judgment, so that that tenderer had to be regarded as definitively 
excluded from the public procurement procedure (and, therefore, as having no 
legal interest in challenging the award decision), Archus and Gama had ‘brought 
an action against the decision excluding their tender and against the decision 
awarding the contract, which were adopted simultaneously, and cannot therefore 
be considered to be definitively excluded from the public procurement procedure’ 
(judgment in Archus and Gama, C-131/16, paragraphs 57 and 58). 
16 By the recent judgment of 5 September 2019 in Lombardi (C-333/18), the Court 
upheld the aforesaid principle established in the judgments in Fastweb and PFE 
that the interests pursued in actions by tenderers, in the context of reciprocal 
‘excluding’ actions, are to be regarded as equivalent in principle (paragraph 25). 
According to the Court, the tenderer ranked in third place, which brought the main 
action, has a legal interest in the exclusion of the bids submitted by the successful 
tenderer and the second-placed tenderer, because even if its bid were declared 
invalid in a counterclaim by the contractor, it is conceivable that the contracting 
authority ultimately would find that it could not select another valid bid which 
adequately met its expectations and would subsequently organise a new 
procedure. Under those circumstances, the admissibility of the main action cannot 
be contingent on a prior finding that all the bids ranked lower than that of the 
tenderer which brought the action are invalid. That admissibility cannot, 
moreover, be made subject to the condition that the tenderer adduces evidence that 
the contracting authority will have to restart the public procurement procedure. 
The mere existence of such a possibility suffices (paragraph 27 et seq.).  
REQUEST FOR A PRELIMINARY RULING – CASE C-771/19 
 
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17 Until recently, it was settled case-law of the Council of State Suspension Chamber 
that a tenderer legally excluded from the next stage of the competition does not 
have a legal interest in challenging the legality of another tenderer’s participation 
other than on grounds alleging infringement of the principle of a level playing 
field. The question has been raised as to whether the findings made by the Court 
in the judgments set out above, especially in Archus and Gama, also apply in 
litigation initiated by an application for suspension during a stage of the public 
procurement procedure prior to the final award stage (for example during 
examination of supporting documents or examination and evaluation of technical 
bids). That question is not addressed by the above judgments of the Court, which 
concern the contract award stage. This has been held in a number of decisions of 
the Suspension Chamber. However, other decisions hold the opposite.  
18 According to the majority opinion of the Suspension Chamber in this case, it 
follows from a combined reading of the provisions of Articles 346(1) and (2) and 
360(1) of Law 4412/2016, which reflect the spirit of the corresponding provisions 
of Directives 89/665/EEC and 92/13/EEC (Articles 1(3) and 2a(2)), interpreted in 
light of the findings of the aforesaid judgments of the Court, that a tenderer which 
either did not challenge the decision excluding it (or subsequently withdrew any 
preliminary action brought or legal remedy lodged) or which did challenge it, but 
whose exclusion was made definitive on delivery of the decision dismissing the 
application for annulment, which thus had the force of res judicata, is regarded as 
definitively excluded. However, a tenderer whose preliminary action was 
dismissed by decision of the AEPP is not regarded as definitively excluded until 
the deadline for lodging an application for annulment or suspension of the 
decision under Article 372 of Law 4412/2016 has expired. Furthermore, a tenderer 
whose application for suspension of the decision of the AEPP dismissing its 
preliminary action is dismissed is not regarded as definitively excluded until such 
time as it has lost the right to lodge an application for annulment of that decision 
and a final decision dismissing any application for annulment lodged has been 
pronounced. 
19 In order, moreover, for a tenderer not definitively excluded to be recognised as 
having a legal interest in effective review of the decision accepting the bids of the 
other tenderers and awarding the contract to one of them, any admission of that 
part of its action must not bring about the definitive cancellation of the 
competition, that is the impossibility of re-announcing it (for example because the 
period of time to which the contract related has passed); on the contrary, it must 
allow for the possibility of a new procedure being initiated to award the contract. 
Thus, an excluded tenderer which challenged in good time its exclusion but whose 
challenge was unsuccessful is recognised as having a legal interest in initiating 
court proceedings seeking the exclusion of its competitors and, by extension, 
annulment of the award of the contract to one of them. That also means that the 
contract in which any launching of a new procurement procedure culminates, 
provided that the subject matter of the second contract is substantially identical to 
that of the first contract and the excluded tenderer could meet the required 
conditions for participating in that new procurement procedure. 
NAMA AND OTHERS. 
 
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20 In addition, it is not necessary for the procurement procedure to be conducted in a 
single stage resulting in the adoption of a single (award) decision by the 
contracting authority in order to recognise the legal interest of a tenderer which is 
not definitively excluded. The stage at which the tenderer was excluded under 
national legislation is also irrelevant, as the same justification substantiating a 
legal interest, that is the interested party’s expectation of being able to take on the 
subject matter of the contract rather than of specifically being awarded the 
contract based on the contested procedure, applies in all stages of public 
procurement procedures. That argument in support of that opinion follows, 
moreover, from judgment in BTG (C-355/15, paragraph 34).  
21 According to the dissenting opinion of one member of the referring court, the 
simple expectation of cancellation and relaunch of the competition then only 
suffices to substantiate a legal interest on the part of the legally excluded tenderer 
in invalidating the participation of the other competitors where its bid was 
excluded due to formal defects or failure to submit supporting documents in due 
form. A change to the substantive content of its bid or to the terms of the 
procedure is not understood as a precondition to its participation in the new 
procedure, as that would mitigate the competitive pressure to submit the best 
possible bid and would pave the way for participation in competitions in bad faith 
and would cause delay. 
22 According to the minority opinion, the case-law of the Court only concerns cases 
in which the decision actually awarding the contract is contested and which 
therefore differ substantially from this case. Excluded tenderers have a right in the 
award stage to effective review of the decision excluding them and even, as long 
as that challenge has not been resolved, of subsequent decisions adopted in the 
procurement procedure. However, EU law does not recognise a direct legal 
interest of a ‘tenderer’ in a public procurement procedure that reflects, directly 
and regardless of the circumstances, its aim of having the competition in which it 
is participating cancelled. To take the opposite view would go beyond the 
protective purpose of Directive 92/13/EEC and would conflict with the public 
interest objective of completing public procurement procedures within a 
reasonable period of time, thereby upsetting the fair balance between effective 
judicial protection and the practical effectiveness of the Directive. 
23 The referring court requests that this reference for a preliminary ruling be 
determined pursuant to an expedited procedure in accordance with Article 105 of 
the Rules of Procedure of the Court of Justice. It emphasises in particular the need 
for full and fast protection at the current stage of preliminary judicial protection. It 
further notes that the questions of legal interest addressed in the questions referred 
have arisen in other cases pending before the competent national courts. It 
considers that, by their very nature and importance, they will certainly arise in 
current or future public procurement procedures.