Opinion of the Advocate General — ECLI:EU:C:2017:883
Date: 2017-11-22
Language of the case: Lithuanian
Subject matter: Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Lithuania

Summary — Judgment of the Court (Fourth Chamber), 17 May 2018 1. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Submission of tenders — Submission of separate tenders by related undertakings — Lawfulness (European Parliament and Council Directive 2004/18, Art. 2) 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 — Selection and award criteria — Obligation to provide a clear definition in advance — Requirement imposed on tenderers not provided for in national legislation or the tender specifications — Unlawful (European Parliament and Council Directive 2004/18) 3. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Submission of tenders — Submission of separate tenders by related undertakings — No requirement for undertakings to declare those links if there is no obligation to that effect provided for in national legislation or the tender specifications — Possibility for the contracting authority to verify whether the offers are autonomous and independent — Conditions (European Parliament and Council Directive 2004/18, Art. 2) 4. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directives 89/665 and 2004/18 — Member States' duty to provide for a review procedure — Rules of evidence — Member States' discretion — Limits — Respect for the principles of equivalence and effectiveness — Assessment of the standard of proof required to establish that the offers submitted by related undertakings are not autonomous and independent (European Parliament and Council Directive 2004/18, Art. 2; Council Directive 89/665, Arts 1(1)(3) and 2(1)(b)) 1. See the text of the decision. (see paras 21, 22) 2. See the text of the decision. (see para. 23) 3. Article 2 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 meaning that: – failing any express legislative provision or specific condition in the call for tenders or in the tender specifications governing the conditions for the award of a public contract, related tenderers submitting separate offers in the same procedure are not obliged to disclose, on their own initiative, the links between them to the contracting authority; – the contracting authority, when it has evidence that calls into question the autonomous and independent character of the tenders submitted by certain tenderers, is obliged to verify, requesting, where appropriate, additional information from those tenderers, whether their offers are in fact autonomous and independent. If the offers prove not to be autonomous and independent, Article 2 of Directive 2004/18 precludes the award of the contract to the tenderers having submitted those tenders. (see paras 26, 40, operative part) 4. See the text of the decision. (see paras 36-38)