Opinion of the Advocate General — ECLI:EU:C:2021:295
Date: 2021-04-15
Language of the case: Lithuanian
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Lithuania

Summary C-927/19–1 
Case C-927/19 
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: 
18 December 2019  
Referring court: 
Lietuvos Aukščiausiasis Teismas (Lithuania) 
Date of the decision to refer: 
17 December 2019  
Applicant and respondent on a point of law:  
‘Ecoservice Klaipėda’ UAB 
Defendant and appellant on a point of law:  
‘Klaipėdos regiono atliekų tvarkymo centras’ UAB 
Subject matter of the main proceedings 
The main proceedings concern the interpretation and application of substantive 
rules governing: the protection of confidential information submitted by suppliers 
to contracting authorities during public procurement and review procedures; the 
establishment of tender conditions; and the classification of information submitted 
by suppliers as false. 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation of provisions of Council Directive 89/665/EEC of 21 December 
1989 on the coordination of the laws, regulations and administrative provisions 
relating to the application of review procedures to the award of public supply and 
public works contracts, as amended by Directive 2007/66/EC of the European 
Parliament and of the Council of 11 December 2007 (‘Directive 89/665’), of 
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 
(‘Directive 2014/24’) and of Directive (EU) 2016/943 of the European Parliament 
and of the Council of 8 June 2016 on the protection of undisclosed know-how and 
business information (trade secrets) against their unlawful acquisition, use and 
EN 
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disclosure (‘Directive 2016/943’) that concern tender conditions and various 
aspects of the protection of confidential information in public procurement, as 
well as of the judgments of the Court of Justice of 4 May 2017, Esaprojekt 
(C-387/14), and of 3 October 2019, Delta Antrepriză de Construcţii şi Montaj 93 
(C-267/18); point (b) of the first paragraph and the third paragraph of Article 267 
TFEU. 
Questions referred for a preliminary ruling 
1. Does a tender condition under which suppliers are required to demonstrate a 
certain level of average annual operating income derived from carrying out 
activities relating only to specific services (mixed municipal waste 
management) fall within the scope of Article 58(3) or (4) of Directive 
2014/24? 
2. Does the method of assessment of the supplier’s capacity, which is set out 
by the Court of Justice in its judgment of 4 May 2017, Esaprojekt 
(C-387/14), depend on the answer to the first question? 
3. Does a tender condition under which suppliers are required to demonstrate 
that the vehicles necessary for the provision of [refuse management] services 
comply with the specific technical requirements, including polluting 
emissions (EURO 5), installation of a GPS transmitter, appropriate capacity 
and so forth, fall within the scope of (a) Article 58(4), (b) Article 42 in 
conjunction with the provisions of Annex VII, (c) Article 70 of Directive 
2014/24? 
4. Are the third subparagraph of Article 1(1) of Directive 89/665, which lays 
down the principle of the effectiveness of review procedures, Article 1(3) 
and (5) thereof, Article 21 of Directive 2014/24 and Directive 2016/943, in 
particular recital 18 and the third subparagraph of Article 9(2) thereof 
(together or separately, but without limitation thereto), to be interpreted as 
meaning that, where a binding pre-litigation dispute settlement procedure is 
laid down in the national legal rules governing public procurement: 
(a) the contracting authority has to provide to the supplier who initiated 
the review procedure all details of another supplier’s tender (regardless 
of their confidential nature), if the subject matter of that procedure is 
specifically the lawfulness of the evaluation of the other supplier’s 
tender and the supplier which initiated the procedure had explicitly 
requested the contracting authority prior thereto to provide them; 
(b) irrespective of the answer to the previous question, the contracting 
authority, when rejecting the claim submitted by the supplier regarding 
the lawfulness of the evaluation of his competitor’s tender, must in any 
event give a clear, comprehensive and specific reply, regardless of the 
risk of disclosing confidential tender information entrusted to it? 
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5. Are the third subparagraph of Article 1(1), Article 1(3) and (5) and 
Article 2(1)(b) of Directive 89/665, Article 21 of Directive 2014/24 and 
Directive 2016/943, in particular recital 18 thereof (together or separately, 
but without limitation thereto), to be interpreted as meaning that the 
contracting authority’s decision not to grant a supplier access to the 
confidential details of another participant’s tender is a decision which may 
be challenged separately before the courts? 
6. If the answer to the previous question is in the affirmative, is Article 1(5) of 
Directive 89/665 to be interpreted as meaning that the supplier must file a 
claim with the contracting authority in respect of such a decision by it and, if 
need be, bring an action before the court? 
7. If the answer to the previous question is in the affirmative, are the third 
subparagraph of Article 1(1) and Article 2(1)(b) of Directive 89/665 to be 
interpreted as meaning that, depending on the extent of the information 
available on the content of the other supplier’s tender, the supplier may 
bring an action before the courts concerning exclusively the refusal to 
provide information to him, without separately calling the lawfulness of 
other decisions of the contracting authority into question? 
8. Irrespective of the answers to the previous questions, is the third 
subparagraph of Article 9(2) of Directive 2016/943 to be interpreted as 
meaning that the court, having received the applicant’s request that the other 
party to the dispute be ordered to produce evidence and that the court make 
it available to the applicant, must grant such a request, regardless of the 
actions on the part of the contracting authority during the procurement or 
review procedures? 
9. Is the third subparagraph of Article 9(2) of Directive 2016/943 to be 
interpreted as meaning that, after rejecting the applicant’s claim for 
disclosure of confidential information of the other party to the dispute, the 
court should of its own motion assess the significance of the data whose loss 
of confidentiality is requested and the data’s effects on the lawfulness of the 
public procurement procedure? 
10. May the ground for exclusion of suppliers which is laid down in 
Article 57(4)(h) of Directive 2014/24, regard being had to the judgment of 
the Court of Justice of 3 October 2019, Delta Antrepriză de Construcţii şi 
Montaj 93, be applied in such a way that the court, when examining a 
dispute between a supplier and the contracting authority, may decide of its 
own motion, irrespective of the assessment of the contracting authority, that 
the tenderer concerned, acting intentionally or negligently, submitted 
misleading, factually inaccurate information to the contracting authority and 
therefore had to be excluded from public procurement procedures? 
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11. Is Article 57(4)(h) of Directive 2014/24, applied in conjunction with the 
principle of proportionality set out in Article 18(1) of that directive, to be 
interpreted and applied in such a way that, where national law provides for 
additional penalties (besides exclusion from procurement procedures) in 
respect of the submission of false information, those penalties may be 
applied only on the basis of personal responsibility, in particular where 
factually inaccurate information is submitted only by a proportion of the 
joint participants in the public procurement procedure (for example, one of 
several partners)? 
Provisions of EU law cited 
Third subparagraph of Article 1(1), Article 1(3) and (5) and Article 2(1)(b) of 
Directive 89/665 
Article 18(1), Article 21, Article 42 in conjunction with Annex VII, 
Article 57(4)(h), Article 58(3) and (4) and Article 70 of Directive 2014/24 
Recital 18 and third subparagraph of Article 9(2) of Directive 2016/943 
Provisions of national law cited 
Article 1.116 (Commercial and professional secrecy) of the Lietuvos Respublikos 
civilinis kodeksas (Civil Code of the Republic of Lithuania; ‘the Civil Code’) 
Paragraphs 1 to 4 of Article 10 (Public access to the case file) and paragraphs 1 to 
5 of Article 101 (Specific features of the protection of commercial secrets) of the 
Lietuvos Respublikos civilinio proceso kodeksas (Code of Civil Procedure of the 
Republic of Lithuania; ‘the Code of Civil Procedure’) 
Paragraph 34 of Article 2 (Main terms used in this law), paragraph 1 of Article 17 
(Key principles of procurement), paragraphs 1 to 5 of Article 20 (Confidentiality), 
paragraphs 1, 3 and 4 of Article 37 (Technical specification), paragraphs 1 and 3 
of Article 45 (General principles of evaluation of a supplier and of a request for 
participation and tender submitted by him), paragraphs 4(4) and (5), 5, 7 and 8 of 
Article 46 (Grounds for exclusion of a supplier), paragraphs 1(1) to (3) and 6 of 
Article 47 (Verification of a supplier’s qualifications), paragraphs 1(1) and (2), 2 
and 3 of Article 52 (Withholding of information or submission of false 
information or failure to submit documents), paragraph 9 of Article 55 (Evaluation 
and comparison of tenders), and paragraphs 3 and 5 of Article 58 (Informing of 
the results of the procurement procedure) of the Lietuvos Respublikos viešųjų 
pirkimų įstatymas (Law of the Republic of Lithuania on public procurement; ‘the 
Law on public procurement’) 
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Succinct presentation of the facts and procedure in the main proceedings 
1 On 27 September 2018, the defendant (also ‘the contracting authority’) announced 
an international open procurement procedure for services relating to the collection 
of municipal waste of Neringa municipality and its transport to the treatment 
facilities of the Klaipėda regional landfill (‘the tendering procedure’). 
2 Tenders were submitted by three suppliers: the applicant ‘Ecoservice Klaipėda’ 
UAB (also ‘the applicant’, ‘tenderer A’); ‘Ekonovus’ UAB; and the group of 
economic operators ‘Klaipėdos autobusų parkas’ UAB, ‘Parsekas’ UAB and 
‘Klaipėdos transportas’ UAB operating under a joint-activity agreement (also 
‘tenderer B’). 
3 On 29 November 2018, the contracting authority informed the participants of the 
evaluation of their tenders and the final results of the tendering procedure: 
tenderer B was the successful tenderer, and the applicant was ranked second. 
4 On 10 December 2018, the applicant filed a claim with the contracting authority, 
challenging the results of the tendering procedure by stating that the qualifications 
of tenderer B did not fulfil the requirements. According to the information 
available to the applicant, ‘Parsekas’ UAB could not have performed contracts 
relating to the collection and transport of mixed municipal waste with a total value 
of EUR 200 000 (excluding VAT) over the last three years (as required in the part 
of the tender conditions entitled ‘Financial and economic capacity’), since, in the 
context of other procurement procedures, that company often participates in joint 
activities as the lead partner which receives money for the provision of services, 
but de facto does not carry out mixed municipal waste management activities. 
Moreover, the applicant asserted that tenderer B also does not satisfy the 
requirements regarding technical ability because the vehicle referred to in the 
documents submitted by ‘Parsekas’ UAB in the tendering procedure does not 
meet various mandatory technical parameters set out in the tender conditions 
(technical specifications). 
5 On 17 December 2018, having examined the applicant’s claim, the contracting 
authority rejected it on the ground that tenderer B, confirming compliance with 
the requirement regarding contracts performed, provided, in accordance with the 
tender conditions, evidence of contracts entered into relating to mixed municipal 
waste management, the value of which corresponds to the required amount, as 
well as technical information concerning the declared vehicle. 
6 On 27 December 2018, the applicant brought proceedings before the Klaipėdos 
apygardos teismas (Regional Court, Klaipėda, Lithuania). 
7 By judgment of 15 March 2019, dismissing the applicant’s action, that court of 
first instance found that tenderer B fulfilled the qualification requirements for 
suppliers. 
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8 Following the appeal lodged by the applicant, the Lietuvos apeliacinis teismas 
(Court of Appeal, Lithuania), by judgment of 30 May 2019, set aside the judgment 
of the court of first instance, upheld the applicant’s action, annulled the 
defendant’s decision establishing the ranking of the tenders and ordered the 
contracting authority to repeat the evaluation of the tenders. The court held that 
tenderer B had fulfilled the requirement regarding contracts performed, but had 
failed to demonstrate its technical ability, since not all the vehicles declared at a 
later date had been initially included in the tender. 
9 The defendant brought an appeal on a point of law, and the applicant responded to 
it. 
10 Furthermore, , in the main proceedings, the applicant and the defendant disagree 
as to which details of the successful tender may be made public and which 
constitute confidential information that the applicant cannot be granted access to. 
11 On 4 December 2018, the applicant applied to the contracting authority requesting 
access to the tender of tenderer B and, on 6 December 2018, it consulted the non-
confidential details of that tender. 
12 In the course of the proceedings before the court of first instance, the applicant 
requested the court to order the defendant to produce additional documents and to 
grant access to all the information contained in the tender of tenderer B (excluding 
only commercially sensitive information), as well as to order ‘Parsekas’ UAB to 
provide data about the waste management contracts classified as confidential that 
it had concluded. 
13 Following the submission by it of additional documents to the court, the 
defendant, in turn, requested the court not to grant the applicant access to the 
confidential details submitted of the tender of tenderer B and to classify them as 
non-public material in the case file. 
14 By order of 30 January 2019, the court of first instance granted this application of 
the defendant and, on 14 February and 21 February 2019, it dismissed the 
abovementioned requests submitted by the applicant. 
15 On 26 July 2019, the applicant, prior to lodging its response to the appeal on a 
point of law, requested the court of cassation, the Lietuvos Aukščiausiasis 
Teismas (Supreme Court, Lithuania), to grant access to the confidential 
documents submitted by the defendant to the court of first instance, with 
genuinely commercially sensitive information redacted. 
Succinct presentation of the reasons for the request for a preliminary ruling 
16 In the present case, the dispute between the parties has arisen as to whether the 
qualifications of the group of economic operators which has been declared the 
successful tenderer comply with the requirements set by the contracting authority. 
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17 The court of cassation should in principle have to rule only on the issues raised by 
the defendant in its appeal on a point of law, namely the compliance of tenderer 
B’s technical ability. However, in the present case, the court of cassation 
contemplates going of its own motion beyond the ambit of the appeal and ruling 
on other aspects of the dispute between the parties, not only in reliance upon the 
ground of protection of the public interest, but also in the light of the specific 
situation that has arisen in the present case, where the applicant, at the pre-
litigation stage and in the proceedings, was in essence denied all the information 
to which it requested access. 
18 Irrespective of the fact that the need for the interpretation of EU law has been 
raised by the national court of its own motion, going beyond the ambit of the 
dispute between the parties, the Court of Justice has jurisdiction to give the court 
the interpretation sought (see, for example, judgments of 5 April 2017, Borta, 
C-298/15, EU:C:2017:266, and of 25 October 2018, Roche Lietuva, C-413/17, 
EU:C:2018:865). 
19 In these proceedings, the chamber refers to the Court of Justice questions 
concerning (a) the lawfulness of certain tender conditions; (b) various aspects of 
the protection of confidential information in public procurement procedures, and 
(c) the assessment of possibly false statements of the successful tenderer and the 
consequences of such acts. 
Lawfulness of the actions on the part of the contracting authority in assessing the 
fulfilment of the qualification requirements by tenderer B 
20 According to the court of cassation’s case-law, when deciding disputes between 
contracting authorities and suppliers what matters is, in essence, the content of a 
condition, not the designation given to it by the contracting authority. The proper 
classification of the conditions of procurement documents will result in the proper 
application of the provisions of the Law on public procurement, which cover 
various procurement procedures, and thus in appropriate dispute settlement. 
(a) content and application of the financial and economic capacity requirement 
21 The financial and economic capacity condition concerning the average annual 
income of suppliers derived from carrying out activities relating to mixed 
municipal waste management, as laid down in the tender conditions, corresponds, 
in essence, to Article 58(3) of Directive 2014/24, which provides for the 
possibility of requiring that economic operators have a certain minimum yearly 
turnover, including a certain minimum turnover in the area covered by the 
contract. However, the chamber considers that it could also correspond to the 
professional ability requirements laid down in Article 58(4) of that directive. 
22 It should be pointed out that it follows from the wording of Article 58(3) of 
Directive 2014/24 (namely, from the word ‘including’) that the required yearly 
turnover in the area covered by the contract is not applicable entirely as an 
alternative in the sense that, where a turnover requirement is imposed, first, the 
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overall turnover should be assessed and, second, turnover in a specific area is 
established at the choice of the contracting authority. In other words, such an 
interpretation of the wording of Article 58(3) of Directive 2014/24 leads to the 
conclusion that turnover in a specific area cannot be established independently, 
without, at the same time, setting the overall turnover requirement. 
23 Moreover, the scope of the term ‘area covered by the contract’ is not entirely 
clear. In fact, according to the tender condition at issue, suppliers had to 
demonstrate their capacity specifically with regard to services relating to the 
collection and transport of mixed municipal waste, in respect of which the 
tendering procedure had been announced, and not in the area of waste 
management in general. The chamber is inclined to give a broader (more abstract) 
interpretation to that term: in the dispute before it, the term would mean that under 
Article 58(3) of Directive 2014/24 the defendant, in seeking to impose specifically 
a requirement concerning financial capacity, had to set, first, the overall yearly 
turnover and, secondly, at the same time the proportion of that turnover in the area 
of unspecified waste management services. 
24 The above questions concerning the proper classification of the tender condition, 
which are raised by the court of cassation of its own motion, relate not only to the 
possible lawfulness of this tendering requirement, but also to its proper 
application. It should be noted that the applicant took the view consistently 
throughout the proceedings that ‘Parsekas’ UAB, a member of tenderer B, is not 
permitted to submit to the contracting authority for evaluation contracts, first, a 
share of which was not performed by it alone but together with other partners, 
including the applicant itself, and, second, the subject matter of all of which is not 
limited to mixed municipal waste management. 
25 Contrary to what the courts held, the chamber considers that the mere fact that, 
according to the tender conditions, the financial and economic capacity of 
suppliers had to be demonstrated by free-form declarations of participants does 
not mean that other suppliers cannot call them or the reliability of data declared 
into question. 
26 It should be recalled that the defendant, tenderer B and the courts interpreted the 
qualification requirement for suppliers that is in question as meaning that the 
tender conditions did not require an economic operator demonstrating its 
fulfilment of the qualification requirement to receive income solely in its own 
name and/or on its own behalf (that is to say, not as the lead partner) and only in 
respect of mixed municipal waste management in the case of the performance of a 
complex contract (a variety of waste). The court of cassation is not entirely clear 
as to the method of proving the qualification in question according to the Court of 
Justice’s case-law. 
27 In its judgment of 4 May 2017, Esaprojekt (C-387/14, EU:C:2017:338), the Court 
of Justice stated inter alia that, where an economic operator relies on the 
experience of a group of undertakings in which it has participated, that experience 
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must be assessed in relation to the effective participation of that operator and, 
therefore, to its actual contribution to the performance of an activity required of 
that group in the context of a specific public contract; it follows that an economic 
operator cannot rely on the supplies of goods or services by other members of a 
group of undertakings in which it has not actually and directly participated as 
experience required by the contracting authority. 
28 It should be noted that in that judgment the question and the answer to it were 
related to Article 48(2)(a) of Directive 2004/18 which provides specifically for the 
method of the assessment of the requirement concerning professional ability. 
29 Should the abovementioned tender condition continue to be classified as a 
financial and economic capacity requirement to which the above interpretations 
given by the Court of Justice with regard to the assessment of the fulfilment of the 
professional ability conditions would be relevant, the question would arise as to 
the separation and proper application of these qualification requirements. 
(b) content and application of the technical and professional ability requirement 
30 The court of cassation also expresses doubts as to the classification of the 
requirement relating to the technical ability of suppliers laid down in the tender 
conditions, under which suppliers had to demonstrate their compliance by 
providing vehicles (refuse collection vehicles) having appropriate technical 
characteristics. 
31 According to the case-law of the court of cassation, tenderers have much more 
freedom in adjusting data concerning the qualifications of suppliers than 
information related to the subject matter of the contract, its technical 
characteristics, the price offered, contractual obligations and so forth. The reason 
for such separation of the rights of suppliers to adjust data is the fact that, in the 
view of the court of cassation, the qualifications of suppliers constitute an 
objective category referring to past and present circumstances, and the 
qualifications either exist or do not exist. Under the national rules currently in 
force governing public procurement, the right of suppliers to adjust data 
concerning qualifications and details of a tender varies in extent. 
32 A similar position also follows from the case-law of the Court of Justice. In the 
view of the court of cassation, the strict rules, to be interpreted narrowly, for 
adjusting details of a tender, set out in the judgment of the Court of Justice of 
29 March 2012, SAG ELV Slovensko and Others (C-599/10, EU:C:2012:191), are 
subject to a certain exception with regard to the assessment of data concerning 
qualifications. The Court of Justice stated, in paragraph 39 of its judgment of 
10 October 2013, Manova (C-336/12, EU:C:2013:647), that a contracting 
authority may request the correction or amplification of details of an application, 
on a limited and specific basis, so long as that request relates to particulars or 
information, such as a published balance sheet, which can be objectively shown to 
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pre-date the deadline for applying to take part in the tendering procedure 
concerned. 
33 The court of cassation also has doubts as to the lawfulness of the requirement 
relating to the technical ability of suppliers. Even though in its judgment of 
10 May 2012, Commission v Netherlands (C-368/10, EU:C:2012:284), the Court 
of Justice held that certain requirements may be set both as a technical 
specification and as a contract award criterion or a condition for performance of a 
contract, it is not entirely clear to the court of cassation whether that is also the 
situation in the present case. 
34 It should be recalled that for a long time the Court of Justice took the view that the 
evaluation of the qualifications of suppliers and of their tender were governed by 
different requirements (see judgment of 24 January 2008, Lianakis, C-532/06, 
EU:C:2008:40). According to that case-law, the qualifications of suppliers could 
not be regarded as a contract award criterion. 
35 However, in its interpretation of the relevant provisions of Directive 2004/18, the 
Court of Justice has subsequently tempered that position somewhat by stating that 
the skills and experience of the members of the team assigned to performing the 
public contract may be included as award criteria in the contract notice or in the 
tender specifications, because the quality of the performance of a public contract 
may depend decisively on the ‘professional merit’ of the people entrusted with its 
performance, which is made up of their professional experience and background 
(judgment of 26 March 2015, Ambisig, C-601/13, EU:C:2015:204). 
36 The ratio decidendi in that case, as subsequently explained by the Court of 
Justice, is that the contracting authority in that instance made a real comparison of 
the admissible tenders in order to identify the most economically advantageous 
tender; the experience of the proposed technical team was an intrinsic feature of 
the tender and not merely a criterion for assessing the tenderers’ suitability 
(judgment of 1 March 2018, Tirkkonen, C-9/17, EU:C:2018:142). Ultimately, this 
rule of legal interpretation was also laid down in Article 67(2)(b) of Directive 
2014/24. In any event, besides the exceptional provision in question, the 
regulatory framework still provides for a model of separation of qualification and 
tender (award) criteria. 
37 The view is to be taken that, if the qualifications of suppliers cannot normally be 
used for the purpose of comparing tenders with each other, then the technical 
provisions of the subject matter of the contract should not be set as requirements 
relating to the capacities of suppliers. 
38 According to the tender conditions, the contracting authority required suppliers to 
prove that their vehicles to be used for the provision of services would meet 
specific technical parameters. These provisions are inter alia correlated with the 
relevant condition set in the technical specifications. The view should be taken 
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that such requirements go beyond what should be sought in verifying the technical 
ability of suppliers. 
39 Article 58(4) of Directive 2014/24 provides inter alia that contracting authorities 
may impose requirements ensuring that economic operators possess the necessary 
human and technical resources to perform the contract to an appropriate quality 
standard. In the present case, specific and precise technical requirements for 
vehicles suggest that what was important for the contracting authority was not to 
ascertain in general the ability of suppliers to perform the contract relating to 
refuse management services properly, but to establish a specific way of 
performing the contract which inter alia seeks environmental objectives (EURO 5 
standard), traceability of the fulfilment of contractual obligations (GPS 
equipment) and so forth. 
40 In this area, the case-law of the court of cassation is of a case-by-case nature; it 
does not set out clear rules of law as to when a requirement is to be regarded as a 
technical ability condition and when it is already a provision of technical 
specifications. In the chamber’s view, there should, in principle, be a correlation 
between the comprehensiveness of a tendering condition and the classification of 
its content, that is to say, the more specific technical (formal) criteria need to be 
demonstrated, the more the content of such a requirement moves away from 
technical ability towards technical specifications or contract performance 
conditions. This is also clear from the scope and comprehensiveness of 58(4) of, 
and Annex VII to, Directive 2014/24. 
Balance between the protection of confidential information of one supplier and 
the effectiveness of the defence of the rights of the other supplier 
41 The applicant sought unsuccessfully, both at the pre-litigation stage and in the 
proceedings, to have access to the tender of tenderer B. That is a common 
situation, characteristic of Lithuanian public procurement practice, which the 
court of cassation consistently attempts to limit by the case-law developed by it. 
42 In the context of the present dispute, however, it should be pointed out that the 
contracting authority itself was very active in defending the right of tenderer B to 
the protection of confidential information. 
43 In the chamber’s view, the main negative consequence of this prevailing practice 
in Lithuania is that the defence of rights of applicants is partly not ensured 
because they, as in the case at issue, have at their disposal less information than 
the other parties to the dispute. Moreover, the effectiveness of the defence of 
rights of applicants essentially turns on the court’s decision to recognise the 
relevant information requested by them as confidential (non-public case file). If 
the court does not grant provide the applicant the information requested, the 
possibilities of the satisfaction of its claims are reduced to a minimum, since 
courts usually, as also was the situation in the present case, do not enlarge of their 
own motion upon the compliance of confidential data with the requirements of the 
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public procurement procedure or with legal rules or assess the reliability of that 
data, and so forth. 
44 In this regard, the court of cassation has stated inter alia that, first, the supplier’s 
right, laid down in Article 20 of the Law on public procurement, to protect 
information specified separately in his tender that is not to be disclosed covers 
only such data which is to be classified as a commercial (industrial) secret within 
the meaning of Article 1.116(1) of the Civil Code; the mere fact that in other cases 
certain information related to the supplier and his activities is not freely accessible 
to other economic operators does not mean that it is to be protected in public 
procurement procedures, if it does not qualify as a commercial secret. It should be 
noted that the provisions of Article 1.116 of the Civil Code correspond, in 
essence, to the provisions of Directive 2016/943 on the matter. 
45 Second, a supplier’s right of access to another supplier’s tender is essentially to be 
regarded as an integral part of protection of the infringed rights. Under the 
national rules governing public procurement, the supplier’s right of access to 
another supplier’s tender constitutes an autonomous individual right which is 
enforced separately by judicial remedies, without the applicant being formally 
required, without all the necessary data, to initiate a dispute concerning the results 
of the tendering procedure accompanied by a procedural request to the court that 
evidence be ordered to be produced by the contracting authority and that the court 
make the evidence available to the applicant, and subsequently possibly to 
supplement or clarify the claims in the action. 
46 Nevertheless, in this area, the court of cassation is uncertain as to the specific 
content of the duties of contracting authorities to protect the confidentiality of the 
information entrusted to them by suppliers and the relationship of those duties 
with the duty of contracting authorities to ensure the effectiveness of the defence 
of rights of economic operators which have initiated the review procedure. Even 
though, in its judgment of 14 February 2008, Varec (C-450/06, EU:C:2008:91) — 
almost the only judgment on the subject — the Court of Justice emphasised the 
nature of the fiduciary relationships (relationships of trust) between suppliers and 
the contracting authority, it is, however, clear from the third subparagraph of 
Article 9(2) of Directive 2016/943 (Article 101(3) of the Code of Civil Procedure), 
which was subsequently adopted, that in any event the parties to the proceedings 
cannot have at their disposal different amounts of information, since otherwise the 
principles of an effective remedy and of a fair trial would be infringed. 
47 If under that legal rule the court has to ensure the applicant the right of access to 
the commercial secret of a party to the dispute, it is not clear why this right should 
not be granted to the applicant before judicial proceedings begin, especially as this 
might help him to decide whether to initiate a review procedure. 
48 Apart from recital 18, Directive 2016/943 essentially contains no specific wording 
devoted to public procurement procedures in particular. On the other hand, it is 
questionable whether the protection of information constituting the commercial 
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secret of tenderers should be of a different (higher) level, compared to economic 
entities operating in other legal relationships. Article 21 of Directive 2014/24 and 
the relevant provisions of Directive 89/665 do not bring greater clarity on the 
subject either. 
49 It is constantly noted by the court of cassation that, even though contracting 
authorities are not review bodies, due to a binding pre-litigation dispute settlement 
system they have broad powers to cooperate with suppliers (the requesting and the 
requested suppliers) and in some cases also the duty — arising from the objective 
of the effective protection of the rights of suppliers — to take, in accordance with 
their competence and the measures available to them, the necessary actions 
ensuring that suppliers have the genuine ability to protect any interests that may 
have been infringed. This case-law correlates with Article 1(5) of Directive 
89/665 which provides that Member States may require that the person concerned 
first seek review with the contracting authority. 
50 As the Lithuanian legislature laid down a mandatory procedure for filing and 
examining claims, and the supplier’s right of access to tenders of other tenderers is 
regarded by courts as an integral part of defence of their rights, an interpretation 
of the aforementioned provisions of EU law to the effect that suppliers could have 
access to such information only in the course of judicial proceedings would be 
inconsistent. 
51 On the other hand, the court of cassation is uncertain as to how, in the judicial 
proceedings, the informing of the parties to the proceedings that is provided for in 
the third subparagraph of Article 9(2) of Directive 2016/943 should be 
implemented: whether the applicant’s right of access to the successful tender is 
unconditional; whether, in view of the pre-litigation stage, the applicant should 
not first apply to the contracting authority with that request; whether the nature of 
the dispute arising out of the results of the tendering procedure is relevant for the 
granting of that request; whether disagreement between the parties regarding the 
results of the tendering procedure is necessary at all, or whether it would be 
sufficient simply for one supplier to exercise his right of access to information 
and, in the event of an infringement of that right, he would be able to apply to the 
court separately, as stated in the case-law of the court of cassation. 
52 It should be noted that in the present case the applicant initially applied to the 
contracting authority requesting access to the tender of tenderer B. Having 
received only a small part of the documents, it did not rely on that fact and did not 
contest the contracting authority’s decision separately, but submitted a procedural 
request to the court for an order that the defendant produce evidence and the court 
make it available to the applicant. Having regard to the course of the dispute at the 
pre-litigation stage, it is not fully clear whether the court of first instance should 
have decided at all on the classification of the data of tenderer B as confidential 
information. On the other hand, the court of first instance and the appellate court, 
after not disclosing the data requested to the applicant, clearly did not themselves 
express a view on its content and significance either. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING OF 17. 12. 2019 — CASE C-927/19 
 
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Submission of possibly false information and powers of the court in that regard 
53 In the present case, the chamber inter alia raises of its own motion the question of 
the assessment under Article 57(4)(h) of Directive 2014/24 of the actions of 
tenderer B, that is to say, whether tenderer B (some of its members) has not in fact 
supplied false information to the contracting authority about the compliance of its 
capacities with the requirements imposed. Moreover, there is uncertainty as to the 
effect of the possibly unlawful behaviour of some partners on the other 
participants in joint activities. 
54 It was noted in the judgment of the Court of Justice in Esaprojekt (C-387/14), 
which concerned the interpretation of a similar provision contained in 
Article 45(2)(g) of Directive 2004/18, that, first, the establishment of intentional 
behaviour by the economic operator cannot be regarded as being an element 
necessary for its exclusion from participating in a public contract, it being 
sufficient if it is guilty of some degree of negligence which may have a decisive 
effect on decisions concerning exclusion, selection or award of a public contract; 
secondly, where the information provided by the economic operator did affect the 
outcome of the contract award procedure, the operator which has negligently 
submitted the relevant information may be regarded as being guilty of serious 
misrepresentation within the meaning of Article 45(2)(g) of Directive 2004/18, 
and such conduct on its part, therefore, is able to justify the decision of the 
contracting authority to exclude that operator from the public contract concerned. 
55 In its latest judgment in that regard (judgment of 3 October 2019, Delta 
Antrepriză de Construcţii şi Montaj 93, C-267/18, EU:C:2019:826), the Court of 
Justice pointed out that Article 57(4)(h) of Directive 2014/24 indeed encompasses 
both active conduct, such as falsification, and an omission, since the 
communication of false information is, in the same way as the concealment of true 
information, likely to have a bearing on the decision adopted by the contracting 
authority. 
56 On the basis of those explanations, the information submitted by ‘Parsekas’ UAB 
on the income obtained from the contracts — which either were concluded and 
executed together with other economic operators that performed specifically the 
part of mixed waste management services that was required to be proven, or were 
concluded and executed without partners, but here, in addition to mixed waste, 
other waste was also handled (in both cases mixed waste accounting for a smaller 
proportion of all waste handled) — could in principle, on the basis of the 
circumstances considered by the Court of Justice in Esaprojekt, correspond to the 
situation of negligent information provision, which affected the results of the 
tendering procedure. 
57 It is not a matter for the court of cassation to examine the facts. However, it has 
jurisdiction to raise of its own motion points of law, including as to the 
classification of information as false, as well as to the assessment of evidence 
carried out by the courts. 
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58 On the other hand, the Court of Justice has begun in its case-law, in respect of the 
provisions of Article 57(4) of Directive 2014/24 laying down exclusion grounds, 
to emphasise the special relationship based on mutual trust between the 
contracting authority and the supplier in question (see judgment of 3 October 
2019, Delta Antrepriză de Construcţii şi Montaj 93, C-267/18, EU:C:2019:826, 
paragraphs 25 to 27 and 37). The court of cassation therefore has doubts as to 
whether, in cases where the contracting authority makes a different assessment, 
the court may decide for it that it was provided with false, misleading information. 
In that context, it should be noted that the applicant clearly expressed the view 
both in the claim and in the action that ‘Parsekas’ UAB submitted misleading 
information to the defendant; however, the defendant took a different position and 
considered that the information submitted to it substantiates that tenderer B fulfils 
the qualification requirements. 
59 As regards the points at issue, the chamber inter alia is uncertain as to the 
consequences that the actions of economic operators which have submitted 
possibly false information potentially have for their partners which together 
submitted a joint tender. Under the national rules governing public procurement 
(Articles 46(4)(4) and 52 of the Law on public procurement), economic operators 
that have submitted false information must be entered in the list of suppliers who 
have submitted false information, resulting in restrictions on taking part in calls 
for tenders of other contracting authorities for a specified period (one year). The 
court of cassation’s doubts as to the reliability of the information submitted do not 
concern all members (partners) of tenderer B. 
60 Under Article 52(1) of the Law on public procurement, the list of suppliers who 
have submitted false information must include suppliers within the meaning of 
Article 2(36) of the Law on public procurement (a supplier is defined as an 
economic operator being a natural person, a private or public legal person, another 
organisation and divisions thereof or a group of such persons, including any 
temporary association of economic entities, which offers the execution of works 
or the supply of goods or services on the market). The view is to be taken, 
however, that the negative measure (consequence) at issue in respect of unlawful 
actions prohibited by law in principle entails the personal responsibility of the 
entity (sanction). It should therefore be applied without exception only to those 
entities which participate in any manner in public procurement procedures and 
submitted information to the contracting authority about themselves, in their own 
name. 
61 Against this background, it is not clear whether unlawful actions on the part of 
some partners of a joint supplier in providing false information about themselves 
entail negative consequences only for them or for all partners together. The latter 
position could be supported by the commonality (joint nature) of interests and 
responsibility of all partners. On the other hand, it is questionable whether such a 
model of joint responsibility is disproportionate bearing in mind that economic 
operators entered in the list of suppliers who have submitted false information are 
excluded from participation in subsequent procurement procedures for one year. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING OF 17. 12. 2019 — CASE C-927/19 
 
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62 It is common ground that additional risks arise for economic operators 
participating jointly in a public procurement procedure, including risks related to 
the need to exclude some partners or to their inability to continue to participate in 
procedures (for instance, due to insolvency) (see judgment of 24 May 2016, MT 
Højgaard and Züblin, C-396/14, EU:C:2016:347); however, such a risk and its 
possible negative consequences relate only to a specific public procurement 
procedure, and not to a prohibition on taking part in other procurement procedures 
for a specified period.