Opinion of the Advocate General — ECLI:EU:C:2009:434
Date: 2009-07-09
Language of the case: Greek
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Freedom to provide services
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Greece

Summary of the Judgment 1. Approximation of laws – Procedure for awarding public contracts in the water, energy, transport and telecommunications sectors – Directive 93/38 – Principle of non-discrimination between tenderers (Council Directive 93/38, Art. 4(2)) 2. Approximation of laws – Procedure for awarding public contracts in the water, energy, transport and telecommunications sectors – Directive 93/38 – Award of contracts (Council Directive 93/38, Art. 34(1)(a)) 1. The fact that a contracting entity excludes, by virtue of a clause in a contract notice, foreign consultancy firms or consultants who had submitted an expression of interest in tendering procedures launched by the same contracting entity in the six months preceding the date of their expression of interest in the current competition and who had declared qualifications corresponding to certificate categories different from those required for the current competition constitutes a failure by the Member State concerned to fulfil its obligations under Article 4(2) of Directive 93/38 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors. Such a clause, which clearly induces foreign consultancy firms or consultants to think that any difference between the qualifications declared in an earlier procedure launched by the same contracting body and the qualifications required for the procedure to which the contract notice in question relates, has the automatic effect of excluding them from participating in that contract and is likely to have a dissuasive effect on them. Even if that clause has always been applied to the effect that any interested operator in doubt as to its scope can request clarification from the contracting entity concerned and is entitled to submit evidence, by any appropriate means, that it meets the conditions for participation in the procedure in question, potential tenderers must be in a position of equality as regards the scope of the information in a contract notice. It is not consistent with the principles of equal treatment and transparency for one category of those concerned to have to request clarification and additional information from the contracting entity as to the actual meaning of the content of a contract notice, where its formulation would leave no room for doubt in the mind of a reasonably well-informed and diligent potential tenderer. In that regard, Article 4(2) of Directive 93/38, in prohibiting any discrimination between tenderers, also protects those who were discouraged from tendering because they were placed at a disadvantage by the procedure followed by a contracting entity. (see paras 36-41, 58, operative part) 2. Where a contract notice relating to the carrying out of a study concerning the construction of a railway station, uses as ‘award criteria’ qualitative selection criteria, the Member State concerned fails to fulfil its obligations under Article 34(1)(a) of Directive 93/38 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors. Although it is true that, with regard to the award of a contract, Article 34(1) of Directive 93/38 does not set out an exhaustive list of the criteria which may be chosen by the contracting authorities, and therefore leaves it open to the authorities awarding contracts to select the criteria on which they propose to base their award of the contract, their choice is nevertheless limited to criteria aimed at identifying the tender which is economically the most advantageous. Therefore, ‘award criteria’ do not include qualitative selection criteria that are essentially linked to the evaluation of the tenderers’ ability to perform the contract in question. (see paras 54-55, operative part)