Opinion of the Advocate General — ECLI:EU:C:2018:493
Date: 2018-06-26
Language of the case: Spanish
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary — Judgment of the Court (Fourth Chamber), 20 September 2018 1. Questions referred for a preliminary ruling — Reference to the Court — National court or tribunal for the purposes of Article 267 TFEU — Concept/Meaning/Definition — Órgano Administrativo de Recursos Contractuales de la Comunidad Autónoma de Euskadi (Administrative Board of Contract Appeals of the Autonomous Community of the Basque Country) — Included (Art. 267 TFEU) 2. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2014/24 — Award of contracts — Open procedure — Award criteria — National legislation allowing contracting authorities to exclude, as a first step, tenders not reaching the minimum score threshold required in the tender specifications with regard to the technical evaluation — Lawfulness (European Parliament and Council Directive 2014/24, Art. 67) 3. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2014/24 — Award of contracts — Open procedure — Award criteria — Option for the contracting authority of reducing the number of tenders to be negotiated or solutions to be discussed — National legislation allowing contracting authorities to exclude, as a first step, tenders not reaching the minimum score threshold required in the tender specifications with regard to the technical evaluation — Lawfulness (European Parliament and Council Directive 2014/24, Arts 29(6), 30(4), and 66) 1. See the text of the decision. (see paras 21-25) 2. Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which allows contracting authorities to lay down, in the documents governing an open procurement procedure, minimum requirements as regards the technical evaluation, so that the tenders submitted which do not reach a predetermined minimum score threshold at the end of that evaluation are excluded from the subsequent evaluation based on both technical criteria and price. To that end, as was argued by the Commission in its written observations, Article 67 of Directive 2014/24 does not preclude the possibility, at the contract award stage, of excluding, as a first step, submitted tenders which do not reach a predetermined minimum score threshold as regards the technical evaluation. In that regard, it appears that a tender which does not reach such a threshold does not correspond, in principle, to the needs of the contracting authority and must not be taken into account for the determination of the most economically advantageous tender. The contracting authority is thus not required, in such a case, to determine whether the price of such a tender is lower than the prices of tenders not eliminated which reach that threshold and thus correspond to the needs of the contracting authority. In that context, it should also be specified that if the contract is awarded after the technical evaluation, the contracting authority will necessarily have to take account of the price of tenders which reach the minimum threshold from a technical point of view. (see paras 32, 33, 39, operative part 1) 3. Article 66 of Directive 2014/24 must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which allows contracting authorities to lay down, in the documents governing an open procurement procedure, minimum requirements as regards the technical evaluation, so that the tenders submitted which do not reach a predetermined minimum score threshold at the end of that evaluation are excluded from the subsequent stages of the procurement procedure, regardless of the number of tenderers remaining. In that regard, provided that, in the case at hand, the conditions laid down by Directive 2014/24, in particular in Articles 18 and 67 thereof, have been applied correctly, it must be held that the contracting authority has ensured that there is effective competition. In addition, it must be stated from the outset that even if, following the technical evaluation, there is only one tender left for the contracting authority to consider, that authority is in no way required to accept that tender (see, by analogy, judgment of 16 September 1999, Fracasso and Leitschutz, C‑27/98, EU:C:1999:420, paragraphs 32 to 34). In such circumstances, if the contracting authority considers that the procurement procedure is, in view of the specificities and the subject matter of the contract concerned, characterised by a lack of effective competition, it is open to that authority to terminate that procedure and, if necessary, to launch a new procedure with different award criteria. It is true that, under Article 66 of Directive 2014/24, contracting authorities, where they exercise the option of reducing the number of tenders to be negotiated as provided for in Article 29(6) of that directive, or that of reducing the number of solutions to be discussed as provided for in Article 30(4) thereof, must do so by applying the award criteria stated in the procurement documents, so that the number of tenders selected in the final stage makes for genuine competition in so far as there are enough tenders that meet the necessary requirements. Nevertheless, for the reasons stated in paragraph 37 of this judgment, the case in the main proceedings concerns a different situation from those referred to in Article 29(6) and Article 30(4) of Directive 2014/24, so that it is not covered by Article 66 of that directive. Accordingly, the need to ensure genuine competition until the final stage of the procedure referred to in that article does not concern open procedures such as that at issue in the main proceedings. (see paras 41-44, operative part 2)