Opinion of the Advocate General — ECLI:EU:C:2024:749
Date: 2024-09-12
Language of the case: Dutch
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary  C-424/23 – 1 
Case C-424/23 
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:  
11 July 2023 
Referring court:  
Ondernemingsrechtbank Gent, afdeling Gent (Belgium) 
Date of the decision to refer:  
28 June 2023 
Applicant:  
DYKA Plastics NV 
Defendant:  
Fluvius System Operator CV 
 
Subject matter of the main proceedings 
The main proceedings concern the claim brought by the applicant before the 
Ondernemingsrechtbank (Business Court), which essentially seeks to establish 
that the defendant’s procurement policy on sewage works, which stipulates in the 
contract documents that, as a rule, the sewage pipes be made of vitrified clay and 
concrete, infringes public procurement legislation, to require the defendant, in 
light of this, to amend its contract documents, in particular the technical 
specifications, and also to order it to pay damages. 
Subject matter and legal basis of the request for a preliminary ruling 
The request for a preliminary ruling pursuant to Article 267 TFEU concerns the 
question of how Article 42 of Directive 2014/24 is to be interpreted. In particular, 
the referring court questions whether the enumeration of the ways in which 
technical specifications must be drawn up, as set out in paragraph 3 of that 
provision, is exhaustive, whether it is permissible under paragraph 4 of that 
provision to refer in technical specifications to sewage pipes made of vitrified clay 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-424/23 
 
2  
and concrete, and whether such a reference to a single product by definition 
favours or eliminates certain undertakings or products, despite the fact that several 
undertakings are able to offer the aforementioned product in competition with one 
another, or whether this requires that only one undertaking be able to offer the 
product in question on the market and, finally, whether an infringement of 
Article 42(3) and/or (4) also constitutes an infringement of Article 42(2) and 
Article 18(1) of Directive 2014/24. 
Questions referred for a preliminary ruling 
1. Must Article 42(3) of Directive 2014/24/EU be interpreted as meaning that 
the list of ways in which the technical specifications must be formulated is of an 
exhaustive nature and that, a contracting authority consequently is obliged to 
formulate the technical specifications of its public contracts in one of the ways 
listed in that provision? 
2. Must Article 42(4) of Directive 2014/24/EU be interpreted as meaning that 
references to sewage pipes made of vitrified clay and concrete (depending on the 
specific type of sewage system) in the technical specifications of calls for tender 
are to be regarded as falling within one or more of the references listed in that 
provision, for example, as references to specific types, or to specific productions 
of pipes? 
3. Must Article 42(4) of Directive 2014/24/EU be interpreted as meaning that 
references in the technical specifications of calls for tender to a single product, for 
example, to sewage pipes made of vitrified clay and concrete (depending on the 
specific type of sewage system) as constituting specific technical solutions, 
already produce the effect required by that provision (namely ‘favouring or 
eliminating certain undertakings or certain products’) since they have the effect of 
excluding a priori and thus disadvantaging, undertakings which offer alternative 
solutions to the specified product, despite the fact that different undertakings in 
competition with each other are able to offer the prescribed specified product, or is 
it necessary that there be no competition whatsoever with regard to the product in 
question, for example, sewage pipes made of vitrified clay and concrete 
(depending on the specific type of sewage system) and that the effect referred to 
can therefore be said to exist only if the product in question is characteristic of one 
particular undertaking which alone offers it on the market? 
4. Must Article 42(2) of Directive 2014/24/EU be interpreted as meaning that 
an established infringement of Article 42(3) of Directive 2014/24/EU and/or of 
Article 42(4) of Directive 2014/24/EU, by virtue of the unlawful use of references 
in the technical specifications of calls for tender, for example, to sewage pipes 
made of vitrified clay and concrete (depending on the specific type of sewage 
system), also at the outset implies an infringement of Article 42(2) of Directive 
2014/24/EU, as well as of the related Article 18(1) of Directive 2014/24/EU? 
DYKA PLASTICS 
 
3 
Provisions of EU law and national 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, 
Articles 18 and 42, recital 74. 
Wet van 17 juni 2016 inzake overheidsopdrachten (Law of 17 June 2016 on 
Public Procurement), Articles 4, 5 and 53. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The dispute concerns the award of public contracts for sewage works. The 
defendant is a contracting authority which stipulates in the contract documents 
relating to those contracts that the pipes in question must, as a rule, be made of 
vitrified clay and concrete (only). The applicant is a manufacturer and supplier of 
plastic sewage pipes, which prevents it from offering its products in the context of 
the aforementioned contracts. 
2 The applicant therefore considers that the defendant’s procurement policy is 
unlawful. In recent years, it has unsuccessfully requested the defendant to change 
its approach. Thus, it has already put the defendant on notice and invited it to 
clarify its policy in this regard. Against that background, the applicant brought the 
present proceedings before the referring court. 
The essential arguments of the parties in the main proceedings 
3 The applicant submits that, as a supplier of plastic pipes, it is systematically 
discriminated against and does not have a fair opportunity to participate in the 
public contracts put out to tender by the defendant. The references in the contract 
documents to vitrified clay and concrete pipes, which constitute technical 
specifications within the meaning of public procurement legislation, exclude 
plastic pipes without any justification, which impedes competition and infringes 
public procurement legislation. 
In particular, the applicant claims that the defendant infringes Article 53(3) of the 
Overheidsopdrachtenwet (Law on Public Procurement), since the technical 
specifications in question were not formulated in accordance with one of the ways 
exhaustively defined in that provision. The defendant also infringes Article 53(4) 
of that law, since those specifications refer only to a single technical solution, 
thereby favouring or eliminating certain undertakings or products. The prohibition 
laid down in that provision is not limited to the situation where a contracting 
authority specifies one unique product that can only be offered by one company. 
Furthermore, an infringement of Article 53(3) and (4) of the 
Overheidsopdrachtenwet also implies an infringement of Article 4, Article 5 and 
Article 53(2) of that law. In essence, Article 53(2) of the Overheidsopdrachtenwet 
constitutes a special application of the fundamental obligations laid down in 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-424/23 
 
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Articles 4 (principle of equality) and 5 (principle of competition) incumbent on a 
contracting authority such as the defendant. These require that a diversity of 
solutions be allowed, whereas undertakings which, like the applicant, offer an 
alternative solution, are excluded in the present case. Finally, the defendant also 
infringed the principle of the duty of care, the principle of proportionality and the 
principle of fair play. 
In view of the foregoing, the defendant should adjust its approach in future. Since 
the applicant has in the past already lost several opportunities to participate in and 
be awarded the contracts in question, it has suffered damage which must be 
compensated by the defendant. 
4 The defendant argues that it has discretionary powers of judgment and thus may 
choose, without further justification, which material, namely vitrified clay and 
concrete, its sewage pipes should normally be made of. 
This approach does not violate Article 53(4) of the Wet overheidsopdrachten. 
Indeed, that provision does not apply in the present case, as its specifications do 
not prescribe a ‘unique product’. After all, there are several producers and 
suppliers of vitrified clay and concrete pipes. Furthermore, there are sound 
reasons for choosing vitrified clay pipes when laying a DWA sewage line and 
concrete pipes when laying a RWA sewage line. So, for example, vitrified clay 
pipes last at least 100 years, while plastic pipes have a lifespan of 50 years. Plastic 
pipes also have more defects and failures than vitrified clay pipes, which increases 
the maintenance costs of plastic pipes. From both a financial and customer 
perspective, the choice of vitrified clay pipes is reasonably justified. Moreover, 
from an environmental point of view, there are also good reasons not to choose 
plastic sewage pipes. Plastic pipes are therefore only acceptable when justified in 
the light of the specific circumstances of the project. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
5 According to the referring court, the question is whether the description of the 
required pipes set out in the contract documents meets the requirements of 
Article 53 of the Overheidsopdrachtenwet, read in the light of Article 42 of 
Directive 2014/24. 
This description does not specify any standards with which such pipes must 
comply. This denies companies the opportunity to offer alternative technical 
options that comply with those standards. Nor does it lay down any performance 
or functional requirements that allow for other technical solutions. In light of this, 
the defendant’s contention that there are several manufacturers of vitrified clay 
and concrete pipes, so that it is not prescribing a unique product, is irrelevant. 
6 The referring court also questions whether the enumeration of the ways in which 
technical specifications must be drawn up, as set out in Article 42(3) of Directive 
2014/24, is exhaustive or merely illustrative. 
DYKA PLASTICS 
 
5 
The referring court finds that sewage pipes are the ‘product’ and that the 
‘requirement’ is that they must be made of vitrified clay or concrete. It is therefore 
necessary to examine whether the way in which the defendant described the 
technical specification in question is compatible with the way in which it should 
be done under Article 53 of the Overheidsopdrachtenwet, read in the light of 
Directive 2014/24. 
7 Furthermore, the referring court questions whether the reference to sewage pipes 
made of vitrified clay and concrete in the defendant’s technical specifications 
should be considered as one or more of the references listed in Article 42(4) of 
Directive 2014/24, for example, as references to certain types or to certain 
productions of pipes.