Judgment — ECLI:EU:C:2015:228
Date: 2015-04-16
Language of the case: Romanian
Court formation: Fifth Chamber
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Romania

summary of the facts on which the questions are based and the connection, inter alia, between those facts and the questions. Therefore, the findings necessary to verify the existence of certain cross-border interest, and more generally all the findings to be made by the national courts and on which the applicability of an act of secondary and primary legislation of the European Union depends, must be made before the questions are referred to the Court (see judgment in Azienda sanitaria locale n. 5 ‘Spezzino’ and Others, C‑113/13, EU:C:2014:2440, paragraph 47). 19 However, because of the spirit of cooperation in relations between the national courts and the Court of Justice in the context of the preliminary ruling procedure, the lack of such preliminary findings by the referring court relating to the existence of certain cross-border interest does not necessarily lead to the request being inadmissible if the Court, having regard to the information available from the file, considers that it is in a position to give a useful answer to the referring court. That is the case, in particular, where the order for reference contains sufficient relevant information for the existence of such an interest to be determined. Nevertheless, the Court’s answer is given subject to the proviso that, on the basis of a detailed assessment of all the relevant facts in the case in the main proceedings, certain cross-border interest in the case in the main proceedings is established by the referring court (see, to that effect, judgment in Azienda sanitaria locale n. 5 ‘Spezzino’ and Others, C‑113/13, EU:C:2014:2440, paragraph 48 and the case-law cited). 20 As regards the objective criteria that may indicate the existence of certain cross-border interest, the Court has already held that such criteria may be, in particular, that the contract in question is for a significant amount, in conjunction with the place where the work is to be carried out or the technical characteristics of the contract. The referring court may, in its overall assessment of the existence of certain cross-border interest also take account of the existence of complaints brought by operators situated in other Member States, provided that it is determined that those complaints are real and not fictitious (see judgment in Azienda sanitaria locale n. 5 ‘Spezzino’ and Others, C‑113/13, EU:C:2014:2440, paragraph 49 and the case-law cited). 21 In the present case, despite the low value of the contract and the lack of any explanation by the referring court, it must be held that the contract at issue in the main proceedings could have certain cross-border interest in the light of the facts of the case in the main proceedings, particularly the fact that that case concerns the supply of computing systems and equipment with the reference processor being that of an international brand. 22 It is therefore for the referring court to make a detailed assessment, taking into account all the relevant information characterising the context of the case brought before it, as to whether the contract at issue in the main proceedings does indeed have certain cross-border interest. The following considerations are subject to that reservation. 23 The question referred must accordingly be understood as relating — in the context of a contract that is not subject to Directive 2004/18 but which has certain cross-border interest — to the implications of the fundamental rules and general principles of the Treaty and, in particular, of the principles of equal treatment and of non-discrimination and of the consequent obligation of transparency. 24 It should also be pointed out that, in the case in the main proceedings, the fact that the product is no longer in production but continues to be available on the market applies not to the product put forward by a tenderer but to the product referred to in the technical specification at issue. Consequently, the relevant question is not whether, in addition to any detailed information in that respect in the tender documentation at issue in the main proceedings, the contracting authority can require that the product offered by a tenderer be one that is still in production, but whether a contracting authority which has defined a technical specification by reference to a product of a particular brand may, where that product is no longer in production, modify that specification by referring to a comparable product of the same brand which is now in production but which has different characteristics. 25 As regards the principles of equal treatment and of non-discrimination and the obligation of transparency, the Member States must be recognised as having a certain amount of discretion for the purpose of adopting measures intended to ensure compliance with those principles, which are binding on contracting authorities in any procedure for the award of a public contract (see judgment in Serrantoni and Consorzio stabile edili, C‑376/08, EU:C:2009:808, paragraphs 31 and 32). 26 The obligation of transparency is in particular intended to preclude any risk of arbitrariness on the part of the contracting authority (see, with regard to Article 2 of Directive 2004/18, judgment in SAG ELV Slovensko and Others, C‑599/10, EU:C:2012:191, paragraph 25 and the case-law cited). 27 That objective would not be achieved if the contracting authority were able to disregard the conditions it had itself imposed. Accordingly, it is prohibited from amending the award criteria during the award procedure. The principles of equal treatment and of non-discrimination and the obligation of transparency have the same effect in that respect with regard to the technical specifications. 28 Consequently, the principle of equal treatment and the obligation of transparency prohibit the contracting authority from rejecting a tender which satisfies the requirements of the invitation to tender on grounds which are not set out in the tender specifications (judgment in Medipac — Kazantzidis, C‑6/05, EU:C:2007:337, paragraph 54). 29 The contracting authority cannot, therefore, after publication of a contract notice, amend the technical specification in respect of an element of the contract in breach of the principles of equal treatment and of non-discrimination and the obligation of transparency. It is irrelevant, in that regard, whether or not the element to which that specification refers is still in production or available on the market. 30 The answer to the question referred is, therefore, that Article 23(8) of Directive 2004/18 is not applicable to a public contract with a value below the threshold for application laid down by that directive. In the context of a public contract not subject to that directive but which has certain cross-border interest, which it is for the referring court to ascertain, the fundamental rules and general principles of the FEU Treaty, in particular the principles of equal treatment and of non-discrimination and the consequent obligation of transparency, must be interpreted as meaning that the contracting authority cannot reject a tender which satisfies the requirements of the contract notice on grounds which are not set out in that notice. Costs 31 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Fifth Chamber) hereby rules: Article 23(8) 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, as amended by Commission Regulation (EU) No 1251/2011 of 30 November 2011, is not applicable to a public contract with a value below the threshold for application laid down by that directive. In the context of a public contract not subject to that directive but which has certain cross-border interest, which it is for the referring court to ascertain, the fundamental rules and general principles of the FEU Treaty, in particular the principles of equal treatment and of non-discrimination and the consequent obligation of transparency, must be interpreted as meaning that the contracting authority cannot reject a tender which satisfies the requirements of the contract notice on grounds which are not set out in that notice. [Signatures] * Language of the case: Romanian.