Opinion of the Advocate General — ECLI:EU:C:2026:274
Date: 2026-03-26
Language of the case: Portuguese

Summary C-888/24 – 1 
Case C-888/24 
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: 
20 December 2024 
Referring court: 
Supremo Tribunal Administrativo (Portugal) 
Date of the decision to refer: 
28 November 2024 
Appellant: 
Adão da Fonseca – Engenheiros Consultores, Lda. 
Respondents: 
Metro do Porto, S.A. 
Betar Consultores, Lda. 
… 
Subject matter of the main proceedings 
Declaration that the decisions (final report) of the contest jury and the final 
decision of Metro do Porto, S.A., as the contracting authority, to award the 
contract to the interested parties and not to the company Adão da Fonseca, Lda, in 
the international public tender ‘Design [contest] for the development of the 
implementation project for the bridge over the River Douro and accesses between 
Porto (Campo Alegre) and Vila Nova de Gaia (Candal)’ are null and void or 
voidable, with the consequent declaration that the contract concluded between 
Metro do Porto, S.A. and some of the interested parties is null and void. 
Subject matter and legal basis of the request 
Application lodged under Article 267 of the Treaty on the Functioning of the 
European Union. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-888/24 
 
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Question referred for a preliminary ruling 
In ‘design contests’, in view of the rule requiring anonymity of candidates laid 
down in Article 82(4) of Directive 2014/24/EU, but considering the possibility, 
provided for by law, that dialogue may take place between the jury and the 
candidates in order to obtain clarification about the designs submitted 
(Article 82(5) of that directive), for which dialogue, complete minutes must be 
drawn up (Article 82(6) of that directive), and considering also the reference made 
in Article 80(1) of that directive to the provisions of Title I, the following question 
arises: 
Should the rule requiring anonymity of candidates laid down in Article 82(4) of 
Directive 2014/24/EU, in conjunction with the possibility of dialogue between the 
jury and the candidates in order to obtain clarification about the designs 
submitted, as provided for in Article 82(5) and (6), and with the reference in 
Article 80(1) of that directive to the provisions of Title I, be interpreted as 
precluding a prior hearing of the interested parties as a compulsory step in the 
procedure? 
Provisions of European Union law relied on 
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 (OJ 
2014 L 94, p. 65), in particular Articles 80 and 82. 
Provisions of national law relied on 
Código dos Contratos Públicos (Public Procurement Code; ‘the CCP’), Diário da 
República No 20/2008, Series I, of 29 January 2008: Articles 16, 18, 19, 20, 21, 
23, 24, 27, 42, 123, 147, 219 to 223 and 283. 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 10 March 2021, by means of notices published in the Portuguese Diário da 
República and in the Official Journal of the European Union (No 2021/S-055), 
the Board of Directors of Metro do Porto, S.A. (‘the Board of Directors’) issued a 
call for tenders for the ‘International public design contest for the development of 
the implementation project for the bridge over the River Douro and accesses 
between Porto (Campo Alegre) and Vila Nova de Gaia (Candal)’. That design 
contest took the form of a public call for tenders in accordance with Article 219-A 
et seq. of the CCP. 
2 The rules for the contest included a procedure to select three designs for the 
development of the implementation project for the construction of the bridge over 
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the River Douro. The total amount of the awards to be granted to the first three 
candidates in the design contest was EUR 300 000. 
3 The designs were to be selected with a view to the subsequent performance of a 
direct award procedure to conclude a contract for the provision of services for the 
development of an implementation project, in accordance with Article 27(1)(g) of 
the CCP, and in line with the rules and requirements laid down in the tender 
specifications (technical conditions). 
4 In accordance with Article 12 of the rules for the contest, the jury was responsible 
for evaluating, grading and ranking the designs submitted, and for preparing a 
final report. 
5 Under Article 13(1) of the rules for the contest, the jury was responsible for 
sending a final report on the designs to the Board of Directors so that a selection 
decision could be taken as referred to in Article 219-I of the CCP. 
6 In accordance with Article 13(2) of the rules for the contest, the deliberations 
contained in the final report from the jury were binding on the Board of Directors. 
7 Article 20 of those rules stipulated that the three highest scoring bidders would be 
invited to submit tenders in the subsequent direct award procedure, in accordance 
with Article 27(1)(g) of the CCP. 
8 The Board of Directors met on 18 October 2021. The minutes of that meeting 
show that the Board of Directors acknowledged and analysed the final report on 
the evaluation, grading and ranking of the designs submitted in the design contest. 
9 Those minutes also show that the Board of Directors took into account, in 
particular, the fact that the design contest had been undertaken using a special 
procedure intended to ensure that the anonymity of the bidders was scrupulously 
protected, in order to contribute to compliance with the principles of equality, 
impartiality, competition and non-discrimination in the selection of the designs. 
10 The minutes from the meeting of the Board of Directors state, in particular, that 
‘unlike in other public procurement procedures, the jury’s deliberations in the 
report submitted to the body taking the decision to award the contract are binding 
and cannot be reformulated or superseded by other deliberations’ and that ‘[it is] a 
binary decision approving or rejecting the report, depending on whether it 
complies with the applicable legislation, without any assessment being made of 
the substance or the appropriateness of its content’. 
11 The company Adão da Fonseca – Engenheiros Consultores, Lda., the appellant in 
the present case (‘Adão da Fonseca’ or ‘the appellant’), was not among the three 
highest scoring bidders. On 25 October 2021, it challenged the preliminary report 
before the president of the contest jury. On 27 October 2021, it again challenged 
the preliminary report and asked to make technical modifications to its design. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-888/24 
 
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12 As the appellant had lodged an administrative complaint, the Board of Directors 
met on 2 November 2021 to decide on that complaint. The Board of Directors 
concluded that it could not legally re-evaluate any design. 
13 On 21 March 2022, the company Metro do Porto, S.A. (‘Metro do Porto’ or ‘the 
respondent’) concluded a contract for the procurement of the service for the 
development of the implementation project for the bridge over the River Douro 
and the accesses between Oporto (Campo Alegre) and Vila Nova de Gaia 
(Candal). 
14 The appellant then brought a pre-contractual administrative action against Metro 
do Porto before the Tribunal Administrativo e Fiscal do Porto – Juízo de 
Contratos Públicos (Administrative and Tax Court, Porto – Public Procurement 
Court; ‘Porto TAF’), in which it named Edgar Cardoso – Engenharia, Laboratório 
de Estruturas, Lda., COBA – Consultores de Engenharia e Ambiente, S.A., and 
BETAR – Consultores, Lda as interested parties. 
15 In that action, the appellant sought, in particular, (i) a declaration that the 
decisions (final report) of the contest jury and the final decision of Metro do 
Porto, as the contracting authority that rejected its complaint, were null and void 
or voidable; (ii) a declaration that the contract concluded between the respondent 
and one of the interested parties was null and void; (iii) an order requiring the 
respondent to select the appellant’s bid as being first and to select that bid for the 
direct award phase; (iv) an order requiring the respondent to implement the 
necessary measures to restore the rights and interests infringed; and (v) an order 
requiring the respondent to pay the appellant compensation in the amount of 
EUR 150 000. 
16 By a judgment of 21 September 2023, the Porto TAF dismissed the action in its 
entirety. 
17 The appellant then lodged an appeal with the Tribunal Central Administrativo 
Norte (Northern Central Administrative Court, Portugal), which, by a judgment of 
15 December 2023, dismissed the appeal and upheld the judgment at first 
instance. 
18  Disagreeing with that judgment, the appellant lodged an appeal on a point of law 
with the Supremo Tribunal Administrativo (Supreme Administrative Court, 
Portugal; ‘the STA’). 
The essential arguments of the parties in the main proceedings 
19 One of the grounds of appeal is based on non-compliance with the type of 
tendering procedure required by law. Adão da Fonseca argues that, despite the 
name given to it by the contracting authority, it is clear from the wording, the 
subject matter and the documents relating to the tendering procedure that this is a 
public procurement procedure for the provision of services for a basic value of 
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EUR 2 800 000 in the field of civil structural engineering and is subject to a 
hearing of the interested parties. 
20 The appellant submits that the procedure followed by the respondent, along with 
the contested acts and the contested contract, did not comply with the law, 
infringed the obligations relating to competition, transparency, legality and 
equality and, inter alia, infringed Article 27(1)(g)(3) and (4) of the CCP, and are 
not in accordance with the principles, law and case-law of the European Union. 
The choice of an open or restricted procedure, or even of a direct award, does not 
imply the exercise of a discretionary power by the contracting authority, but rather 
a non-discretionary power. The appellant relies in particular on Articles 16, 18, 
19, 20, 21, 23, 24 and 27 of the CCP to support this argument. 
21 More specifically, Adão da Fonseca considers this to be a mixed procedure, 
whereby, like a call for tenders by pre-qualification, there is a first phase of 
selection of three design proposals, in which an initial part of the project is 
submitted, and then, in a second phase, one of those proposals is contracted for the 
performance of an implementation project. 
22 The appellant relies in that regard on the case-law of the Court of Justice, 
according to which the rules and principles of the EC Treaty apply to public 
procurement contracts in so far as those contracts have a sufficient connection 
with the functioning of the internal market, in which case the award procedure 
must comply with those rules. It follows that pre-award procedures must 
necessarily comply with the same rules (judgment of 20 May 2010, Germany v 
Commission, T-258/06, paragraph 5). 
23 Another ground of appeal alleges infringement of the right to a prior hearing. The 
appellant submits that a prior hearing was mandatory and that the failure to hold 
such a hearing constitutes a failure to take an essential step which renders the 
proceedings and the respondent’s decisions null and void or voidable. The 
appellant argues that, pursuant to Articles 219 to 223 of the CCP, and by virtue of 
Article 219-A(6) of that same text, the public tendering regime must be followed 
and that, consequently, the obligation to hold a prior hearing applies. According to 
the appellant, Articles 219 to 223 of the CCP do not support the conclusion that a 
prior hearing should not be held in the procedure in question. 
24 Indeed, a prior hearing functions as a filter, and thus as a guarantee that the best 
offer will be chosen, in so far as it allows the jury to better understand certain 
issues and to correct possible errors in the evaluation proposal. In the present case, 
the scale and technical complexity of the project and of the offers required – even 
more than in other cases – that a prior hearing be conducted. According to the 
appellant, if the prior hearing had been held, as was necessary, all the issues 
would have been re-examined by the jury, which would then have been able to 
correct its errors. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-888/24 
 
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25 Thus, in the appellant’s view, the procedure, the decision adopted in the final 
report and the decision adopted by the respondent, including as regards the 
conclusion of the contract and the decision to award the contract, are null and void 
or voidable on the ground that the prior hearing, a necessary and essential step, 
was omitted. 
26 For its part, as regards the ground of appeal alleging failure to comply with the 
type of tendering procedure required by law, Metro do Porto submits that the 
tendering procedure in question is in fact a design contest. It argues that all 
interested parties were aware from the outset, in the context of an internationally 
publicised call for tenders, of the content of the future contract to be concluded 
following the direct award, since that is the function (draft contract) of the tender 
documents in any such procedure. 
27 Like the Porto TAF, Metro do Porto believes that it is clear that the procedure in 
question is a design contest. 
28 As regards the second ground, concerning the holding of a prior hearing, the 
respondent argues that, since this is a design contest, there is no obligation to hold 
a prior hearing. 
29 According to Metro do Porto, the suggestion that a prior hearing should be held in 
the context of a design contest would simply mean introducing an exception to the 
applicable law, which establishes a special procedure that has no parallel with any 
other pre-contractual procedure and which is individually designed to avoid the 
mere possibility – not even the certainty, but the mere possibility – that the 
anonymity of the creators of the designs might be compromised. 
30 The respondent states that it complied with the rules conferring on the jury the 
power to issue a single report (and not two reports, before and after a hearing of 
the interested parties, whose identity could not be known), which is absolutely 
binding on the contracting authority and which cannot be modified at any time 
during the procedure. 
31 The respondent argues that the law treats as non-negotiable the idea that the jury – 
far from merely submitting proposals for decisions subject to re-evaluation and 
substitution – meets to indicate in a single report its deliberations on ‘the ranking 
of the projects submitted, in accordance with the selection criteria laid down in the 
rules for the contest’, as well as the ‘exclusion of designs submitted in breach of 
any rules relating to the submission of designs’. Consequently, the decision-
making body merely takes note of and accepts the binding deliberations with 
which it has been provided. 
32 That is the respondent’s submission in relation Article 219-B of the CCP, 
according to which ‘the identity of the tenderers who are the creators of the 
designs submitted may be known and disclosed only after the report referred to in 
Article 219-I(1) has been drafted’. 
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33 Thus, the respondent submits that the contracting authority is required to comply 
with Articles 267 et seq. of the CCP and to admit and resolve any administrative 
complaints brought by potentially affected persons, and that that is what it has 
done in the context of the present procedure. 
34 For the sake of completeness, the respondent emphasises what the legal 
consequence would be in the hypothetical case that this approach were not 
followed. The procurement contract in question was concluded with the relevant 
successful bidder on 21 March 2022, and the implementation of the contract has 
been completed. There is no alternative to the contract already implemented in 
order to obtain the external financing necessary for the investment in question, 
and the conclusion of a new contract with any other successful bidder simply does 
not constitute a real alternative, since the respondent and the Portuguese State 
would not find any other source to compensate for the loss of the corresponding 
financing, which the respondent quantifies at EUR 299 000 000. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
35 The STA is ruling in the present case as the court of last instance and is not aware 
of any case-law of the Court of Justice of the European Union that has addressed, 
at least directly, the question of a prior hearing of the interested parties in ‘design 
contests’, which it considers to be a decisive issue. The STA therefore considers 
that it is appropriate to ask the Court of Justice to rule on that question and, more 
specifically, on whether or not the abovementioned rules of Directive 
2014/24/EU – transposed at national level into the CCP (in its post-2017 
version) – require the interested parties to be heard, while safeguarding the rule of 
anonymity, on similar terms to the dialogue, required by law, between the jury and 
the candidates to obtain clarification on the designs submitted.