Order;Summary — ECLI:EU:C:2020:388
Date: 2020-05-25
Language of the case: Portuguese
Court formation: Ninth Chamber
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Portugal

Summary C-643/19 — 1 
Case C-643/19 
Summary of the request for a preliminary ruling under Article 98(1) of the 
Rules of Procedure of the Court of Justice 
Date lodged:  
30 August 2019 
Referring court:  
Tribunal Central Administrativo Norte (North Central 
Administrative Court, Portugal) 
Date of the decision to refer:  
26 July 2019 
Applicant:  
Resopre — Sociedade Revendedora de Aparelhos de Precisão SA 
Defendants:  
Município de Peso da Régua 
Data Rede — Sistemas de Dados e Comunicações, SA 
Subject matter of the main proceedings 
1 Annulment of the decision awarding the concession for the exploitation of plots of 
land to install and operate parking meters, in the public procurement procedure 
launched by the Município do Peso da Régua (Municipality of Peso da Régua, 
Portugal) on 18 January 2018. 
Subject matter and legal basis of the request for a preliminary ruling 
2 Article 267 of the Treaty on the Functioning of the European Union. 
The question referred 
3 In a pre-contractual public procurement procedure relating to a concession for the 
exploitation of plots of land to install and operate parking meters and control 
compliance with the provisions laid down in the municipal regulation on short-
stay paid parking zones in force in the municipality, does EU law (in particular, 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-643/19 
 
2  
Articles 56(1) and 60(4) of Directive 2014/24/[EU] and the principle of 
competition) allow the instructions for tenderers to establish that tenderers must 
submit the software and equipment (the parking meter) to be supplied, in order to 
demonstrate both that the tenderer complies with the terms and conditions in the 
contract documents and the characteristics of the tenders, and to establish an 
award criterion related to the ‘technical and functional suitability of the solution’ 
factor, to be assessed on the basis of that demonstration (see paragraphs 16 and 17 
of the Instructions for Tenderers)? 
Provisions of EU law relied upon 
4 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 
2004 L 94, p. 65) — Article 56(1)(b), Article 58(1)(c), Article 60(4) and Article 
67(2).  
Provisions of national law relied upon 
5 Article 80(4) of the Constituição da República Portuguesa (Constitution of the 
Portuguese Republic). 
Código dos Contratos Públicos (Public Procurement Code, ‘CCP’), approved by 
Decree Law No 18/2008 of 29 January 2008 — Article 42(4), Article 55, Article 
57, Article 75, Article 132(4) and 165(1). 
Order No 72/2018 of 9 March 2018, defining the conditions under which the 
contracting authority can require labels, test reports from a conformity assessment 
body, certificates issued by such bodies and other means of proof — Article 3(1). 
Brief description of the facts and the main proceedings 
6 On 19 January 2018, a public procurement procedure, launched by the 
Municipality of Peso da Régua (Portugal), was published in the Diário da 
República, for the award of a concession for exploitation of the plots identified on 
the plans and list of streets contained in Annex I to the contract documents, to 
install and operate parking meters and control compliance with the provisions 
laid down in the municipal regulation in force on short-stay paid parking zones.  
7 According to paragraph 16.1 of the Instructions for Tenderers, ‘the contract will 
be awarded on the basis of the criterion of the most economically advantageous 
tender, having regard to the following factors: 
Factor 1 — Technical and functional suitability of the solution 
(FATFS)……………………….……………………………………40% 
Factor 2 — Price (FP) ………….….………………………………50% 
RESOPRE — SOCIEDADE REVENDEDORA DE APARELHOS DE PRECISÃO 
 
3 
Factor 3 — Timescale for installing parking meters in the zones specified in 
Annex I to the contract documents (FPZ) ……………………….10% 
All the factors on which the award criterion is based will be evaluated according 
to a points score on a scale of 0 to 100, on in the terms set out below: 
Factor 1 — Technical and functional suitability of the solution (FATFS) — 40% 
Under the Technical and functional suitability of the solution factor, the subfactors 
will be assessed and evaluated on the basis of the following evaluation 
parameters: 
Description Value 
Unsatisfactory/Is not compliant or does not show any of the 
characteristics required in the subfactor 
1 
Satisfies what is required and laid down in the paragraph in 
question, corresponds in practice to the characteristics required 
in the subfactor  
10 
 
When completing the following table, the answers in the field “Technical and 
functional description of how the solution corresponds to the characteristic” must 
be as detailed and exhaustive as possible, and may otherwise be regarded as non-
existent or inadequate, or as non-compliant or not corresponding to any of the 
fundamental characteristics required in the subfactor in question’. 
8 According to paragraph 17 of the Instructions for Tenderers: 
‘17. Validation of the terms, conditions and characteristics of tenders 
17.1. In the phase of analysing and evaluating the tenders submitted, both the 
terms and conditions of the tenders, and their characteristics will undergo a 
validation process by means of face-to-face sessions to demonstrate the 
corresponding parking management software, the terminals to be allocated to 
inspectors and the proposed parking meter. 
17.2. Tenderers must therefore be prepared during the tender analysis and 
evaluation phase to submit the software, the terminals to be allocated to inspectors 
and the corresponding parking meter at the premises of the municipality, on a date 
to be agreed between the parties, no later than 10 days after the opening of 
tenders, in order to demonstrate compliance with the terms and conditions laid 
down in the contract documents, and also the characteristics of the tenders 
submitted. If agreement on that date is not reached, the contracting authority will 
set it unilaterally. 
17.3. The session referred to in the preceding paragraphs, at which the members of 
the procurement panel will be present, may also be attended by experts or 
assessors appointed by the body competent to make the award decision, in 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-643/19 
 
4  
accordance with Article 68(5) CCP, in order to provide support in evaluating the 
platform proposed. The demonstration will take place in accordance with 
Annex VIII to these Instructions for Tenderers. 
17.4. The procurement panel may adjourn the session for reasons beyond the 
control of the contracting authority and the tenderer. The session will resume on 
the date established by the procurement panel. 
17.5. The face-to-face demonstration will be a constituent element of the analysis 
of tenders and will form part of the tender evaluation process in accordance with 
these Instructions for Tenderers. 
17.6. Both a finding that the terms and conditions laid down in the contract 
documents have not been complied with and the corresponding face-to-face 
demonstration will be taken into consideration for the purposes of excluding a 
tenderer, under Article 19. 
17.7. In the event of a discrepancy between the tenderers’ replies in the contract 
documents and the corresponding face-to-face demonstration, the face-to-face 
demonstration will prevail for the purposes of scoring. 
17.8. A representative of each tenderer may attend the face-to-face demonstration 
sessions, and must provide accreditation issued by the authorised representative of 
the relevant undertaking. …’. 
9 Under Article 57(1)(b) CCP, tenderers had to indicate in the tenders, inter alia, the 
characteristics of each subfactor of the ‘technical and functional suitability of the 
solution’ factor, and had to set out in detail the technical specifications of the 
items (parking meters and software) to be used in operating and inspecting 
parking in the short-stay paid parking zones. 
10 Data Rede — Sistemas de Dados e Comunicações, SA, (‘Data Rede’) 
demonstrated the functionalities of its proposed parking meters and software at the 
face-to-face demonstration session held. 
11 Resopre — Sociedade Revendedora de Aparelhos de Precisão, SA (‘Resopre’), 
despite having been put on notice to do so, did not show the functionalities of the 
proposed parking meters and software at the face-to-face demonstration session. 
12 As a result of applying the procurement rules laid down, the tenders proposed 
were given the following final scores: 
Tenderer 40% 
FATFS 
50% 
FP 
10% 
FPZ 
Total score 
B — Resopre — 
Sociedade 
    
RESOPRE — SOCIEDADE REVENDEDORA DE APARELHOS DE PRECISÃO 
 
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Revendedora de 
Aparelhos de 
Precisão, SA 
2.00 40.00 10.00 52.00 
C — Alexandre 
Barbosa Borges, 
SA 
2.00 20.00 10.00 32.00 
D — Data 
Rede — 
Sistemas de 
Dados e 
Comunicações, 
SA 
 
38.32 
 
40.00 
 
10.00 
 
88.32 
 
 
13 By a resolution of the Peso da Régua municipal council of 29 March 2018, the 
contract was awarded to the tender submitted by Data Rede. The ‘contract 
awarding the concession to exploit land to install parking meters’ was concluded 
on 26 April 2018. 
14 After being served with the award notice referred to in the preceding paragraph on 
29 March 2018, Resopre brought urgent proceedings relating to public 
procurement before the Tribunal Administrativo e Fiscal de Mirandela 
(Administrative and Fiscal Court, Mirandela, Portugal) against both the 
Municipality of Peso da Régua and Data Rede and two other companies. By that 
action Resopre applied for annulment of the decision awarding the contract to 
Data Rede. 
15 The urgent proceedings relating to public procurement having been dismissed, 
Resopre appealed against the judgment of the Tribunal Administrativo e Fiscal de 
Mirandela (Administrative and Fiscal Court, Mirandela) to the Tribunal Central 
Administrativo Norte (North Central Administrative Court, Portugal, ‘TCAN’). 
16 The TCAN now makes this request for a preliminary ruling to the Court of 
Justice. 
Fundamental arguments of the parties in the main proceedings 
17 Resopre, the applicant in these proceedings, bases its arguments in essence on 
pleas in law alleging that the provisions of the procurement procedure were 
unlawful and that the principles of proportionality and free competition were 
infringed. 
18 As regards the unlawfulness of the documents in the procurement procedure, 
Resopre refers to the requirements concerning the need to demonstrate the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-643/19 
 
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software and equipment that tenderers had to provide. According to Resopre, 
minimum technical ability requirements were unlawfully laid down, which were 
not subject to competition under the contract documents, and that this is 
unacceptable in a public procurement procedure, since that procedure does not 
have a candidate prequalification phase. 
19 Indeed, according to Resopre, under Article 60(4) of Directive 2014/24/EU and 
Part II of Annex XII thereto, and by virtue of the principle that national law must 
be interpreted in conformity with EU law, this constitutes a provision of samples 
that equates to setting a minimum technical ability requirement, which can only be 
done when pre-contractual procedures are established that include a qualification 
phase. 
20 The ‘technical and functional suitability of the solution’ award criterion indicated 
in the procurement procedure is thus unlawful because it is based on a means of 
proof of the tenderers’ technical ability that is intended to ‘bring forward’ 
verification of the general technical characteristics of the software and equipment 
they are required to provide, rather than to identify the most economically 
advantageous tender. 
21 As regards infringement of the principles of proportionality and free competition, 
Resopre contends that the investment needed to participate in the face-to-face 
demonstration session was excessively burdensome, and thereby unjustifiably 
restricted competition. Although it submitted a tender, the applicant in these 
proceedings did not demonstrate the equipment face-to-face because of the high 
cost and because the holding of the face-to-face demonstration session was 
fundamentally disproportionate. 
22 Data Rede, the defendant in these proceedings, claims, for its part, that the 
requirement to show the functioning of the equipment is completely lawful since it 
is permitted by Article 132(4) CCP, according to which ‘the instructions for 
tenderers may also include any specific rules on the public procurement procedure 
which the contracting body sees fit, provided they do not hinder, restrict or distort 
competition’. 
23 Data Rede argues that the purpose of the face-to-face session to demonstrate 
functionalities is to evaluate the tenders rather than the tenderers. According to its 
interpretation of Order No 9/2018 of 9 March 2018, a sample of an item can 
always be required (although, in its view, this is not strictly the subject matter of 
this case), and the holding of a session can be required in order to demonstrate 
how it functions, in order to evaluate the characteristics of the tender or its terms 
and conditions.  
24 Accordingly, the rule in the Instructions for Tenderers that envisages the holding 
of a face-to-face session to demonstrate functionalities is a praeter legem 
provision rather than a contra legem provision, that is to say, it goes ‘beyond’ 
what is strictly laid down by the CCP but is not contrary to it, since it is the only 
RESOPRE — SOCIEDADE REVENDEDORA DE APARELHOS DE PRECISÃO 
 
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way that the contracting body can possibly check the functionalities of the parking 
meters and software indicated in the tenders. It is therefore a suitable and 
necessary solution and is neither excessive nor disproportionate. 
25 As regards the claim relating to excessive cost, Data Rede submits that the first 
instance judgment correctly found that the costs arising from the face-to-face 
demonstration are ‘inherent business risks’. 
Brief description of the grounds for the request for a preliminary ruling 
26 Under Article 8(4) of the Constitution of the Portuguese Republic, EU law is 
directly applicable in the internal legal order. That principle of the primacy of EU 
law means that national law that is incompatible with EU law is disapplied, and it 
also leads to the principle of the direct effect of provisions of EU law and the 
principle that national law must be interpreted in accordance with EU law. 
27 According to the case-law of the Court of Justice, under the principle that national 
law must be interpreted in accordance with EU law, the court applying national 
law must ‘attribute to national provisions a meaning in accordance or compatible 
with the European provisions’ (judgments of 13 November 1990, Marleasing, 
C-106/89, EU:C:1990:395 and of 4 July 2006, Adeneler, C-212/04, 
EU:C:2006:443). 
28 Citing settled case-law, the [TCAN] notes that the Court of Justice ‘has no 
jurisdiction to rule either on the interpretation of provisions of national laws or 
regulations … . It may, however, supply the national court with an interpretation 
of Community law that will enable that court to resolve the legal problem before 
it’ (judgments of 18 November 1999, Teckal, C-107/98, EU:C:1999:562, and of 
23 January 2003, Makedoniko Metro and Michaniki, C-57/01, EU:C:2003:47). 
29 The TCAN also refers to the settled case-law of the Court of Justice according to 
which ‘it is solely for the national court before which the dispute has been 
brought, and which must assume responsibility for the subsequent judicial 
decision, to determine in the light of the particular circumstances of the case both 
the need for a preliminary ruling in order to enable it to deliver judgment and the 
relevance of the questions which it submits to the Court’ (judgments of 13 March 
2001, PreussenElektra, C-379/98, EU:C:2001:160 and of 23 April 2009, Rüffler, 
C-544/07, EU:C:2009:258).  
30 The TCAN is of the view that, in the present case, the correct application of the 
legislative framework in question is not so obvious as to leave no room for 
reasonable doubt, and that the question relating to the interpretation of the legal 
framework of EU law is therefore necessary in order to give a ruling in this case.