Judgment — ECLI:EU:C:2026:305
Date: 2026-04-16
Language of the case: Romanian

Translation C-568/24 – 1 
Case C-568/24 
Request for a preliminary ruling 
Date lodged: 
23 August 2024 
Referring court: 
Curtea de Apel Cluj (Romania) 
Date of the decision to refer: 
17 June 2024 
Appellant and applicant at first instance: 
Sof Medica SA 
Respondent and defendant at first instance: 
Spitalul Clinic Județean de Urgență Cluj-Napoca 
  
[…] ROMANIA 
CURTEA DE APEL CLUJ (Court of Appeal, Cluj, Romania) 
SECȚIA À III-A CONTENCIOS ADMINISTRATIV ȘI FISCAL (THIRD 
DIVISION FOR ADMINISTRATIVE AND TAX MATTERS) 
[…] ORDER 
Public hearing of 17 June 2024 
[…] The decision on the appeal brought by [appellant and applicant at first 
instance, ‘the appellant’] SOF Medica SA against the civil judgment […] of 
22 March 2024 […] of the Tribunalul Cluj (Regional Court, Cluj, Romania) 
against the [respondent and defendant at first instance, ‘the respondent’], Spitalul 
Clinic Județean de urgență Cluj-Napoca (the provincial emergency hospital, Cluj-
Napoca), seeking judicial review of a procedure for the award of a public contract. 
[…] The Court [of Appeal, Cluj] 
Following the examination of the request for referral to the Court of Justice of the 
European Union, notes the following: 
EN 
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The circumstances of the procedure. Procedural context. Background to the 
dispute 
1 The contracting authority (the provincial emergency hospital, Cluj-Napoca) 
organised an open tender procedure, by publishing in the Sistemul Electronic al 
Achizițiilor Publice (electronic public procurement system, ‘SEAP’) contract 
notice CN1065628/23.02.2024 for the award of the public contract ‘Supply, 
installation and commissioning of surgical robot 2’, with an estimated value of 
RON 25 400 000. 
2 The procurement procedure was organised by the contracting authority following 
the cancellation of the previous procurement procedure, launched by the 
publication of contract notice CN1062179/29.11.2023. 
3 Prior to the opening of the two procedures, the contracting authority had launched 
a market consultation procedure by publishing contract notice MC1026541 of 
5 October 2023 concerning the surgical robot. 
4 Two robotic surgery technologies are present on the relevant market in Romania, 
with similar functionalities: 
– the monobloc system (where the robot arms are arranged as one unit) – the Da 
Vinci device; 
– the modular system (where the robot arms are individually arranged) – the 
Versius device. 
5 In the tender specifications, on page 4, chapter ‘A. General characteristics’ in the 
table, the contracting authority presented the technical specifications of the 
surgical robot as follows: ‘Robot-assisted surgery equipment, modular and 
mobile, comprising at least four modules with independent robotic arms and 
certified applicability for at least the following specialisations: general surgery, 
gynaecology, urology and thoracic surgery. The equipment must be capable of 
being placed in the Operating Block without any special measures being required, 
allowing for a hybrid approach to the [surgical] procedure with a rapid changeover 
from classic laparascopic surgery to robot-assisted surgery and vice versa, 
whenever this is necessary in the course of a [surgical] procedure. The equipment 
must be capable of continuous use.’ 
6 By its action registered at the registry of the Regional Court, Cluj, ‘the court of 
first instance’, the appellant Sof Medica SA requested that the contracting 
authority be ordered to remove from the tender documentation the technical 
specifications which, in its view, are discriminatory, and to set certain minimum 
requirements ensuring a transparent procedure based on effective competition and, 
if it is not possible to correct the documentation, to cancel the procurement 
procedure. 
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7 The civil judgment [of] 22 March 2024 of the Regional Court, Cluj dismissed in 
part – as having become devoid of purpose and, moreover, as unfounded – the 
action brought by the appellant Sof Medica SA against the respondent, the 
provincial emergency hospital, Cluj-Napoca, in respect of the corrective measures 
ordered by the contracting authority. 
8 The grounds of the judgment concluded that, in the course of the proceedings, [the 
respondent] has implemented the corrective measures […], published in the 
SEAP, so that, to that extent, the action had become devoid of purpose. 
Similarly, measures were taken to avoid the award of the contract ‘especially 
designed for a Russian oligarch’; compliance with the requirement not to award 
the contract to a company or entity linked to Russia will be analysed at the time of 
the submission of tenders in the procedure and cannot be considered from the 
outset as a ground for cancellation of the procedure. 
9 In light of the provisions of Articles 2, 50 [and] 155(1), (5) and (6) of Law 
No 98/2016 [on public contracts, ‘Law No 98/2016’], [the court of first instance] 
held that it is the contracting authority that is best placed to determine its own 
needs, assess the relevance of a technical specification or the benefits of imposing 
certain specifications, in light, in particular, of the principle of accountability 
enshrined in Article 2(2)(f) of Law No 98/2016. Under that principle, the 
contracting authority is responsible for the decisions and actions carried out in the 
procurement procedure, as any contract that does not fully meet its needs 
constitutes an inefficient use of the funds. 
10 Having regard to the provisions of Article 156(2) of Law No 98/2016 and [those] 
of Article 20(10) of the [Normele metodologice de aplicare a prevederilor 
referitoare la atribuirea contractului de achiziție publică/acordului-cadru din Legea 
nr. 98/2016 privind achizițiile publice (detailed methodological rules for the 
implementation of the provisions relating to the award of public 
contracts/framework contracts of Law No 98/2016 on public contracts), approved 
by] HG [hotărârea guvernului (Government Decision)] No 395/2016 [‘the 
methodological rules’], [the court of first instance] held that the necessity and 
appropriateness of procuring products able to deliver a specific performance, and 
the technical characteristics required of such products, are determined by each 
contracting authority, depending on the objective needs and priorities 
communicated by the departments of the contracting authority, and that the 
involvement of the participants in the procurement procedure cannot be permitted 
on that point, also taking into account the rules, laid down in Article 2(2)(f) of 
Law No 98/2016, of the principle of accountability. 
11 The appellant referred to Case C-296/15, but the present case differs from the 
situation in that case, since the contracting authority did not impose a requirement 
as to the origin of the goods to be procured, did not draw up the technical 
specifications by referring to or making reference to a specific model, and the 
arrangement of the arms is based on the contracting authority’s logistical 
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constraints, that is to say, to allow easy integration into the existing operating 
theatres, which have [a] small surface area of between 20 and 30 m². 
12 The appellant starts from the conclusion that, as the technical specifications are 
formulated, one piece of medical equipment only would be favoured, namely the 
Versius equipment, manufactured by CMR Surgical (in which the [arms] are 
individually arranged), whereas the equipment produced by Intuitive, the Da Vinci 
equipment, is a monobloc system, with the arms being arranged as one unit. 
13 [The court of first instance], however, found that, in the first procedure initiated 
by the [respondent], the manufacturer of the Versius equipment had not submitted 
a tender (contrary to the appellant’s claim) and that the procedure had been 
annulled on the ground that the only tender submitted was that of the appellant 
company, which did not comply with the requirements of the tender 
specifications. 
14 [The respondent] stated in its counterclaim that at least three manufacturers of 
modular type robotic surgery equipment (four independent modules with robotic 
arms) were identified: Medtronic, CMR Surgical and Asensus Surgical US. 
Consequently, contrary to the appellant’s claim, it cannot be considered that the 
technical specifications were drafted in such a way that only one producer has a 
product corresponding to the tender documentation. 
15 [The appellant’s] claims that none of the devices placed on the market by those 
three manufacturers meets the contracting authority’s requirements cannot be 
regarded as well founded, without there being actual bids from the manufacturers, 
in the absence of a comparative analysis of the technical specifications of the 
products, of the different models, if any (the appellant itself claims that it 
produces two models of Da Vinci robots, X and Xi; it is therefore possible that 
other manufacturers also have different equipment models; whether or not tenders 
comply with the conditions of the tender documentation is a matter to be assessed 
when they are submitted). 
16 Paragraph A of the appeal concerns the amendment of the technical specifications, 
in so far as the appellant claims that the words ‘modular and mobile equipment 
with at least four modules with independent robotic arms’ should be replaced with 
the wording ‘modular equipment/system with at least four mobile robotic arms’. 
17 The appellant essentially explains the advantages of the Da Vinci robot over the 
Versius robot, by submitting to that effect an expert opinion from the Spitalul 
Clinic Județean de Urgență «Pius Brînzeu» (provincial emergency hospital, Pius 
Brînzeu). 
18 [The court of first instance considers that] it is not possible to accept and confirm 
in the present procedure the appellant’s opinion that the equipment which it placed 
on the market represents a technology superior to the Versius system, on the basis 
that the Da Vinci robot has been used in a greater number of operations, having 
been on the market for a longer period. To do so would be to prevent new 
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technologies from being placed on the market, which be given the opportunity to 
be used, since only then can effective competition be respected. 
19 Similarly, it cannot be held that the device needed by the respondent is the Da 
Vinci robot, since to rule in that way would entail the court substituting itself for 
the contracting authority and intervening in questions relating to the 
appropriateness of procuring a particular product. 
20 The appellant’s proposals seek to substantially amend the tender documentation 
on the ground that several tenders could be submitted, for different types of 
robots, but [the court of first instance held] that reformulating it as proposed by 
the appellant (essentially replacing the term ‘module’ with ‘four-arm system on a 
single support’) would make it very difficult to select the winning tender, 
precisely because, although the aim was to submit a tender for a surgical robot, the 
characteristics of the two systems are different. It would thus be difficult to choose 
between the possible tenders if, hypothetically, a tender were to be submitted both 
for the modular equipment, with individually arranged arms, and for the system 
with arms arranged as one unit. That is because it would again be necessary to 
analyse one by one the advantages/disadvantages of each system, and it would 
then be for the [contracting] authority to state why it had chosen one of the 
tenders. 
21 However, in the [court of first instance’s] view, the decision to procure a specific 
type of equipment [had] been correctly taken by the contracting authority before 
the opening of the procurement procedure, especially since it had previously 
initiated a market consultation procedure. 
22 The appellant also requested that the tender documentation be amended so as to 
remove the statement that all modules must be able to be powered simultaneously 
from the console, namely that the 2D display monitor be placed on any other 
component of the system, but the Regional Court, [Cluj] found that those 
specifications did not constitute unjustified restrictions. 
23 The appellant also requested the removal of the requirements relating to the area 
occupied, or the maximum weight of the equipment. However, in [the court of 
first instance’s] view, such a requirement, although it could be considered 
restrictive, does not appear unjustified. 
24 In its counterclaim [the respondent] carried out a comparative analysis of the 
characteristics relating to the weight/height of the Da Vinci Xi robot, which has a 
total weight of 1 340 kg, that is to say, a significant difference compared to the 
115 kg provided for in the tender specifications. 
25 The appellant argues that the Da Vinci robot is a monobloc device and is 
motorised, easily transportable from one room to another, unlike the transport of 
four modules. It maintains that the model it also proposed in the annulled 
procedure was the Da Vinci X model, the arms of which weighed 545 kg. 
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26 Taking into account [the respondent’s] arguments relating to the specific 
conditions concerning the size of the operating theatres, [the court of first 
instance] held that the removal of this criterion (as requested by the appellant) was 
not necessary, since it was clear that, if equipment which was too large for the 
location where it was to be placed and used had been purchased, the purchase 
would have been useless. Even though they do not relate to the medical relevance 
of the robot, those characteristics are aspects that cannot be ignored even at the 
pre-tender stage. 
27 In that regard, account must be taken of the provisions of Article 20(10) [of the 
methodological rules], Article 3(1)(rr) of Law No 98/2016 [and] Article 155(1) of 
that law. 
28 In paragraph B of the appeal, the appellant criticised the technical performance 
criteria and requested the award of scores differing from those chosen by the 
contracting authority. Specifically, the appellant seeks the reversal of the scores 
for criteria 2 and 3 (certified applicability in other medical specialisations, for 
more than four specialisations, and monitoring and control devices – for operation 
only with the upper limbs – respectively). 
29 [The court of first instance] held that the assessment factors were linked to the 
subject-matter of the contract and were not such as to provide unlimited 
discretion. The assessment factors apply to all the tenders to be submitted, concern 
the technical and functional advantages of the subject-matter of the public contract 
and the fact that [the respondent] intends to procure a robot that can be operated 
with only the upper limbs may be inferred from the fact that the score is awarded 
only for that specification. [In the view of the court of first instance], however, [it 
cannot] be assumed that tenders for robots which are operated with the lower 
limbs as well will be rejected. 
30 On the other hand, [the court of first instance held that] the ‘solution’ proposed by 
the appellant was diametrically opposed, namely awarding points only to devices 
that must be operated with all the limbs and not awarding points to those that must 
be operated with the upper limbs only. That would amount to replacing the 
contracting authority’s decision with the decision of the appellant company, which 
is favourable to the latter; the appellant did not propose, for example, that 
different scores should be awarded, with 10 points if the robot were operated only 
with the upper limbs, and 20 points if it were operated with all limbs, which could 
have been objective in nature. 
31 [The court of first instance] also held that there was no need to amend the 
additional score provided for by the contracting authority in the event that the 
equipment could be used for specialisations in addition to the minimum required 
number, since there were no indications that such a method of awarding scores 
favoured a particular supplier/producer. 
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32 Since the contracting authority’s subjective assessment was as set out, [the first 
court did not replace it] with the subjective assessment of the appellant company, 
taking the view that the principle of proportionality and the principle of 
accountability referred to above had been abided by. 
33 The appeal brought by Sof Medica SA against that judgment was brought before 
the Court of Appeal, Cluj, ruling at final instance. 
34 By its appeal, the [appellant] Sof Medica SA submits (in so far as is relevant in 
the present case) that the contracting authority did not define the ‘objective need’ 
to include restrictive specifications either in the tender specifications or in the 
public consultation procedure, since that documentation does not contain even the 
slightest reference to the arguments that set out only at the stage of the judicial 
proceedings, namely: the logistical capacities of the operating theatres 
(dimensions of the rooms); the need to move the medical equipment from one 
operating theatre to another; and the number of operating theatres and their 
distribution. 
35 The appellant argues that the court of first instance upheld the contracting 
authority’s arguments as to the lawfulness of the restriction of competition in the 
procurement process, and failed to examine whether the purchaser had complied 
with its legal obligations to establish objective need in a transparent manner. 
36 In light of the case-law of the Court of Justice, in the appellant’s view the court of 
first instance should have observed that the contracting authority’s failure to 
define the objective need through the tender documentation does not comply with 
the requirement of transparency, nullifying one of the fundamental principles 
governing the matter. 
37 The judgment under appeal is unlawful, the appellant submits, in so far as it was 
delivered in breach of Articles 2(2)(f) and 154(1) of Law No 98/2016 and of 
Article 20(10) of [the methodological rules], read in conjunction [with] 
Articles 18 and 42 of Directive 2014/24/EU. 
38 The appellant also alleges infringement of Articles 2(2)(b), 50(1) and (2), 155(6) 
and 156 of Law No 98/2016, read in conjunction with Articles 18 and 42(2) [and] 
(3) of Directive 2014/24/EU, in that the contracting authority unjustifiably limited 
competition by means of the tender documentation, in breach of the principle of 
equal treatment. 
39 In the present case, the appellant argues that it must be held that the restriction of 
competition is achieved by laying down certain design or functionality criteria, 
which are of no technical relevance and make no scientific contribution, departing 
from the purpose of the procurement. 
40 The contracting authority has, it claims, established design criteria which, 
assessed cumulatively, exclude any medical equipment other than the Versius 
modular equipment from the procurement procedure. 
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41 Contrary to the view taken by the court of first instance, the criterion of the 
arrangement of the arms, or the criterion of the area occupied or the weight of the 
equipment, indirectly excludes other modular equipment which does not 
cumulatively satisfy the specific conditions (qualification for the surgical 
discipline) of the tender specifications. 
42 Article 50(1) [and] (2) of Law No 98/2016, read in conjunction with Articles 18 
and 42(2) of Directive 2014/24/EU, requires the contracting authority to ensure 
that the technical specifications do not restrict competition to the point of 
excluding it, that is to say, to ensure that the tender documents contain the words 
‘or equivalent’. 
43 The reference to the Versius modular equipment reinforces the restrictive 
requirements through the award criteria. What [was] emphasised in the appeal is 
that the reversal of the scores for criteria 2 and 3 is necessary because criterion 3 
favours a particular technology and does not respond to a real need on the part of 
the contracting authority. 
44 As is apparent from Article 42(4) of Directive 2014/24, by way of exception and 
where a sufficiently precise and intelligible description of the subject-matter of the 
public contract is not possible, reference may be made to a specific make or 
source, or a particular process which characterises the products or services 
provided by a specific economic operator, or to trade marks or patents, provided 
that that is justified by the subject-matter of the contract and the conditions laid 
down for that purpose by Directive 2014/24 are complied with. In particular, such 
a statement is to be accompanied, in the documents relating to the public 
procurement contract, by the words ‘or equivalent’. 
45 Thus, the failure to add the words ‘or equivalent’ after the designation, in the 
tender specifications, of a particular product may not only deter economic 
operators using systems similar to that product from taking part in the tendering 
procedure, but may also impede the flow of imports in cross-border trade within 
the EU, by reserving the contract exclusively to suppliers intending to use the 
product specifically indicated (see, to that effect, order of 3 December 2001, 
Vestergaard, C-59/00, EU:C:2001:654, paragraph 22 and case-law cited). 
46 Similarly, it is necessary that the level of detail of the technical specifications 
complies with the principle of proportionality, which means, in particular, that it is 
necessary to analyse whether that degree of detail is necessary to attain the 
objectives pursued. 
47 In those circumstances, [the appellant argues] that it is especially important to 
apply the principle of proportionality in the sensitive area of public health. 
48 The respondent, the provincial emergency hospital, Cluj, notes in its counterclaim 
that, as regards the requirements relating to the modularity of the surgical robot, 
those do not constitute design requirements, as the appellant incorrectly and 
tendentiously claims, but have numerous clinical, technical and economic 
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benefits. The requirements relating to the modularity of the surgical robot were 
established following a rigorous comparative examination between monobloc and 
modular systems, in order to procure a system offering significant benefits for 
both the hospital and patients. 
49 [The respondent argues] that, according to the tender specifications, the equipment 
to be procured must be both modular and mobile, to enable it to be easily moved 
between different operating rooms in the operating block. 
50 Mobility is essential for the efficient use of equipment in different locations within 
the operating block. The equipment must have at least four modules with 
independent robotic arms, resulting in the ability to perform different and 
simultaneous interventions, while ensuring flexibility of use. 
51 At the same time, the equipment must be certified for use in specialisations such 
as general surgery, gynaecology, urology and thoracic surgery, highlighting the 
versatility required to cover a wide range of surgical procedures. 
52 Similarly, it must be able to be placed in the operating block without any special 
arrangements being necessary, indicating that it is compatible with the existing 
infrastructure of normal operating theatres, thereby avoiding additional costs and 
time taken in making adaptations. 
53 The equipment must make it possible to switch rapidly from classical laparoscopic 
surgery to robot-assisted surgery, suggesting the need for a versatile and effective 
solution for different types of interventions. 
54 The requirement for continuous use of the equipment underlines the importance of 
reliability and consistent performance, which are essential for the continuous 
support of surgical interventions. 
55 Those requirements demonstrate that the contracting authority needs advanced, 
mobile surgical equipment, covering multiple surgical specialisations, enabling it 
to be used in a wide range of [surgical] procedures. The equipment must be 
efficient and easy to integrate, and it must be possible to instal it in existing 
operating theatres without significant modifications, facilitating rapid switching 
between different operating modes. Similarly, it must be reliable and durable, able 
to withstand continuous use without interruption, while providing consistent 
performance and reliability. 
56 During the preliminary stage of the procedure for the award of a public contract, 
as the court hearing the case also pointed out, the respondent carried out an in-
depth market survey. The survey included an analysis of the information from 
meetings between specialists and consultations with experts in the field, providing 
a complete and up-to-date overview of the market. 
57 That analysis revealed the presence of at least three major manufacturers of 
modular robotic surgery equipment, contrary to the appellant’s claim. 
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58 Second, the respondent submits that there has been no infringement of the 
provisions of Directive 2014/24/EU as referred to in paragraph 26 of the present 
document, since the words ‘or equivalent’ were expressly included in the tender 
documentation. 
59 In particular, the following passage appears on page 17 of the tender 
specifications: ‘Any reference in the technical documentation relating to certain 
technical specifications indicating an origin, source, production, special process, 
trade mark, invention patent or manufacturing licence is by way of exception and 
is used only to describe in a sufficiently precise and comprehensible manner the 
subject-matter of the contract, and the contracting authority considers that it is 
always accompanied by the words ‘or equivalent’. The data sheet, Section VI.3 
‘Additional information’, provides: ‘The technical requirements set out in the 
contract data sheet, in the participation criteria, in the tender specifications or in 
other additional documents, referring to standards, a specific manufacturer, trade 
marks, patents, types, an origin or a specific production/method of 
manufacture/service/performance, shall be understood as being accompanied by 
the words ‘or equivalent’.’ 
Law 
60 The Court of Appeal, Cluj considers that the question of law before the court 
reviewing legality concerns the margin of discretion enjoyed by the contracting 
authority of a Member State in defining the technical specifications and in 
justifying the ‘objective need’ for them. 
61 On the basis of the foregoing, the Court of Appeal, Cluj has concluded that it was 
necessary, for a proper resolution of the dispute, to refer to the Court of Justice of 
the European Union questions of principle which arise in the context of the 
requests [for a preliminary ruling set out in the operative part], formulated in the 
light of the particular features of the dispute and offering the possibility of 
resolving it in a relevant and useful manner. 
62 […] 
[…] Relevant legal provisions and case-law 
I. The provisions of national law which are applicable in the present case 
Article 2(2) of Law No 98/2016: 
‘(2) The principles underlying the award of public procurement contracts and the 
organisation of competitions are: (a) non-discrimination; (b) equal treatment; (c) 
mutual recognition; (d) transparency; (e) proportionality; and (f) accountability’. 
Article 50 of Law No 98/2016: 
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‘(1) Contracting authorities shall not design either the structure of the contracts or 
their elements with the aim of avoiding the application of the provisions of this 
Law or artificially restricting competition. 
(2) Pursuant to paragraph (1), an artificial restriction of competition is deemed to 
exist if the contract or its elements are designed or structured so as to unjustifiably 
favour or disadvantage certain economic operators.’ 
Article 155(1), (2) and (6) of Law No 98/2016: 
‘(1) The technical specifications shall be set out in the procurement 
documentation and shall lay down the characteristics required for the work, 
service or supplies which are the subject of the contract. 
(2) The characteristics referred to in paragraph (1) may also relate to the specific 
process or method of execution of the works, manufacture of the products or 
provision of the services requested, or to a specific process for another stage of 
their life cycle, even if those elements do not form part of the physical content of 
the supplies, works or services to be procured, provided that those characteristics 
are linked to the subject-matter of the public contract/framework agreement and 
are proportionate to its value and objectives. […] 
(6) The technical specifications must afford all economic operators equal access 
to the procurement procedure and must not have the effect of creating unjustified 
obstacles to ensuring effective competition between economic operators’. 
Article 156(2), (3) and (4) of Law No 98/2016: 
‘(2) Unless justified by the subject-matter of the contract, technical specifications 
shall not refer to a specific make or source, or a particular process which 
characterises the products or services provided by a specific economic operator, or 
to trade marks, patents, types or a specific origin or production with the effect of 
favouring or eliminating certain economic operators or certain products. 
(3) Notwithstanding the provisions of paragraph (2), in exceptional 
circumstances it is permitted to lay down technical specifications that specify the 
elements referred to in paragraph (2), where a sufficiently precise and intelligible 
description of the subject-matter of the contract pursuant to paragraph (1) is not 
possible. In that event, the specification of the elements referred to in 
paragraph (2) shall be accompanied by the words ‘or equivalent’. 
(4) Where the contracting authority establishes the technical specifications in 
accordance with paragraph (1)(b), it shall not reject a tender on the grounds that 
the works, products or services tendered for do not comply with the technical 
specifications to which reference is made, if the tenderer demonstrates in its 
tender by any appropriate means that the solutions proposed satisfy in an 
equivalent manner the requirements defined by the technical specifications.’ 
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Article 187(4) and (5) of Law No 98/2016: 
‘(4) Pursuant to points (c) and (d) of paragraph (3), the best quality-price ratio or 
quality-cost ratio shall be determined on the basis of certain assessment factors 
which include qualitative, environmental and/or social aspects linked to the 
subject-matter of the public contract/framework agreement. 
(5) The assessment factors referred to in paragraph (4) may include: 
(a) quality, including technical merit, aesthetic and functional 
characteristics, accessibility, design for all users, social, environmental 
and innovative characteristics, and marketing and the associated 
conditions; 
(b) organisation, qualifications and experience of staff assigned to 
performing the contract, where the quality of the staff assigned may 
have a significant impact on the quality level of contract performance; 
(c) after-sales service, technical assistance, delivery conditions such as 
delivery date, delivery process and delivery period, or period of 
delivery or completion’. 
Article 189 of Law No 98/2016: 
‘(1) The contracting authority is not entitled to use assessment factors involving 
an unlimited margin of discretion. 
(2) Pursuant to paragraph (1), the assessment factors used by the contracting 
authority must ensure effective competition between economic operators and must 
be accompanied by provisions that allow the information provided by the 
tenderers to be effectively verified for the purposes of the application of the 
assessment factors. 
(3) If it considers it necessary, the contracting authority shall verify the accuracy 
of the information and proof provided by the tenderers’. 
Article 1 of [the methodological rules]:  
‘(1) In the performance of a public contract, any situation in respect of which 
there is no express regulation shall be interpreted in the light of the principles laid 
down in Article 2(2) of [Law No 98/2016]. 
(2) When applying the procurement procedure, the contracting authority shall 
take all necessary measures to avoid situations liable to give rise to conflicts of 
interest and/or to prevent, limit or distort competition. 
(3) If it finds that a situation referred to in paragraph (2) has arisen, the 
contracting authority shall eliminate the effects resulting from such a situation by 
taking, in accordance with its powers, and where necessary, corrective measures 
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to amend, terminate, revoke or cancel acts which have affected the proper 
application of the procurement procedure or related activities.’ 
Article 12(3) of [the methodological rules]: 
‘(3) When establishing the initial form of the annual public procurement 
programme, the contracting authority shall take into account: 
(a) the objective needs for supplies, service and works; 
(b) the degree of priority of the needs referred to in point (a); 
(c) expectations as to the sources of funding to be identified.’ 
Article 20(10) of [the methodological rules]: 
‘(10) The tender specifications shall contain technical specifications that represent 
requirements, prescriptions, characteristics of a technical nature which enable 
each supply and each service or work to be described objectively in a manner 
corresponding to the needs of the contracting authority.’ 
II. European Union law 
Directive 2014/24/EU: 
Article 18 
‘Principles of procurement 
1. Contracting authorities shall treat economic operators equally and without 
discrimination and shall act in a transparent and proportionate manner. 
The design of the procurement shall not be made with the intention of excluding it 
from the scope of this Directive or of artificially narrowing competition. 
Competition shall be considered to be artificially narrowed where the design of 
the procurement is made with the intention of unduly favouring or disadvantaging 
certain economic operators. 
[…]’. 
Article 42 
Technical specifications 
1. The technical specifications as defined in point 1 of Annex VII shall be set 
out in the procurement documents. The technical specification shall lay down the 
characteristics required of a works, service or supply. 
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Those characteristics may also refer to the specific process or method of 
production or provision of the requested works, supplies or services or to a 
specific process for another stage of its life cycle even where such factors do not 
form part of their material substance provided that they are linked to the subject-
matter of the contract and proportionate to its value and its objectives. 
[…] 
2. Technical specifications shall afford equal access of economic operators to 
the procurement procedure and shall not have the effect of creating unjustified 
obstacles to the opening up of public procurement to competition. 
3. Without prejudice to mandatory national technical rules, to the extent that 
they are compatible with Union law, the technical specifications shall be 
formulated in one of the following ways: 
(a) in terms of performance or functional requirements, including 
environmental characteristics, provided that the parameters are 
sufficiently precise to allow tenderers to determine the subject-matter 
of the contract and to allow contracting authorities to award the 
contract; 
(b) by reference to technical specifications and, in order of preference, to 
national standards transposing European standards, European 
Technical Assessments, common technical specifications, international 
standards, other technical reference systems established by the 
European standardisation bodies or – when any of those do not exist – 
national standards, national technical approvals or national technical 
specifications relating to the design, calculation and execution of the 
works and use of the supplies; each reference shall be accompanied by 
the words ‘or equivalent’; 
(c) in terms of performance or functional requirements as referred to in 
point (a), with reference to the technical specifications referred to in 
point (b) as a means of presuming conformity with such performance 
or functional requirements; 
(d) by reference to the technical specifications referred to in point (b) for 
certain characteristics, and by reference to the performance or 
functional requirements referred to in point (a) for other 
characteristics. 
4. Unless justified by the subject-matter of the contract, technical specifications 
shall not refer to a specific make or source, or to a particular process which 
characterises the products or services provided by a specific economic operator, or 
to trade marks, patents, types or a specific origin or production with the effect of 
favouring or eliminating certain undertakings or certain products. Such reference 
shall be permitted, on an exceptional basis, where a sufficiently precise and 
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intelligible description of the subject-matter of the contract pursuant to 
paragraph 3 is not possible. Such reference shall be accompanied by the words ‘or 
equivalent’. 
5. Where a contracting authority uses the option of referring to the technical 
specifications referred to in point (b) of paragraph 3, it shall not reject a tender on 
the grounds that the works, supplies or services tendered for do not comply with 
the technical specifications to which it has referred, once the tenderer proves in its 
tender by any appropriate means, including the means of proof referred to in 
Article 44, that the solutions proposed satisfy in an equivalent manner the 
requirements defined by the technical specifications. 
6. Where a contracting authority uses the option laid down in point (a) of 
paragraph 3 to formulate technical specifications in terms of performance or 
functional requirements, it shall not reject a tender for works, supplies or services 
which comply with a national standard transposing a European standard, a 
European technical approval, a common technical specification, an international 
standard or a technical reference system established by a European standardisation 
body, where those specifications address the performance or functional 
requirements which it has laid down. 
In its tender, the tenderer shall prove by any appropriate means, including those 
referred to in Article 44, that the work, supply or service in compliance with the 
standard meets the performance or functional requirements of the contracting 
authority. 
Reasons leading the referring court to make a reference for a preliminary 
ruling 
63 The Court of Appeal, Cluj concluded that it is necessary to refer to the Court of 
Justice of the European Union the questions for preliminary ruling [set out in the 
operative part], in so far as, in the present case, it is called upon to determine 
definitively whether the contracting authority complied with its margin of 
discretion in laying down the technical specifications and the award criteria. 
Furthermore, the Court of Appeal seeks to know whether the ‘objective need’ for 
establishing such specifications and criteria must be justified when the 
procurement documentation is drawn up. 
64 In concrete terms, it is a question of justifying the contracting authority’s decision 
to procure a certain type of robotic surgery equipment, to include technical 
specifications relating to the area occupied and to the maximum weight of the 
equipment, and to establish award criteria concerning the technical aspects of the 
equipment to be procured. 
65 Both the contracting authority and the court of first instance took the view that 
‘objective need’ may also be explained after the publication of the procurement 
documentation, to justify the technical specifications required. 
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16  
66 The appellant submits that the technical specifications of the procurement 
documentation limit tenderers’ access to only one type of equipment, based on 
certain design requirements (arrangement of the robot arms) and area 
occupied/weight of the equipment, without the words ‘or equivalent’. 
67 There is a reference to the Versius modular equipment, which reinforces the 
technical specifications through the award criteria. The technical specifications 
relating to the arrangement of the arms, the area occupied or the weight of the 
equipment indirectly provide for the exclusion of other modular type equipment 
that does not meet all the specific requirements of the tender specifications. The 
award criteria also seem to favour modular equipment. 
68 The contracting authority, on the other hand, points out that the requirements 
relating to the modularity of the surgical robot do not constitute design 
requirements and were established following a rigorous comparative examination 
between monobloc systems and modular systems, in order to procure a system 
offering significant benefits for both the hospital and patients. Similarly, 
arguments were submitted during the proceedings to establish the area occupied 
and the weight of the equipment. 
69 As regards the award criteria, the respondent supports the assessments of the court 
of first instance set out in [paragraphs] 28 to 32. 
70 Consequently, the appeal court is called upon to give a ruling on whether the 
procurement documentation complies with the principle of transparency governed 
by Article 18(1) of Directive 2014/24/EU, read in conjunction with Article 49 of 
Directive 2014/24/EU, in circumstances in which the need to procure a particular 
piece of robotic surgery equipment has been clarified during the procedure. 
71 Directive 2014/24/EU on public procurement provides a clear and detailed legal 
framework for public procurement procedures, including the principles of 
transparency and equal treatment. Article 18(1) underlines the obligation imposed 
on contracting authorities to treat economic operators equally and without 
discrimination, while ensuring the transparency of procurement procedures. 
72 Article [42] of Directive 2014/24/EU provides that technical specifications must 
be clear, afford equal access to economic operators and not create unjustified 
obstacles to the opening up of public procurement to competition. 
73 As the Court of Justice has previously held, the principles of equal treatment, non-
discrimination and transparency are of crucial importance with regard to the 
technical specifications, in the light of the risks of discrimination linked to the 
choice of those or the manner in which they are formulated (see, as regards 
Directive 2004/18, judgment of 10 May 2012, Commission v Netherlands, 
C-368/10, paragraph 62). 
74 In its judgment in Case C-413/17, the Court of Justice held that Articles 18 and 42 
of Directive 2014/24/EU must be interpreted as not imposing on the contracting 
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authority, in establishing the technical specifications of a contract notice in a 
procedure concerning the procurement of medical supplies, prioritising, as a 
matter of principle, either the importance of the individual characteristics of the 
medical supplies or the importance of the result of their functioning, but as 
requiring that the technical specifications, as a whole, comply with the principles 
of equality of treatment and proportionality. 
75 Consequently, the resolution of the present dispute by the national court depends 
on the determination of the meaning of certain provisions of EU law. If the Court 
of Justice of the [European] Union decides in principle that: 
i. justifying the contracting authority’s ‘objective need’ only at the stage when 
the tender documentation is challenged is not compatible with the principle 
of transparency; 
ii. justifying the contracting authority’s ‘objective need’ is subject to 
compliance with the principles of non-discrimination and equal treatment; 
iii. the restrictive nature of a technical specification will be assessed in the light 
of all the requirements contained in the tender documentation – technical 
specifications and award criteria; 
each of those conclusions would have a significant bearing on the 
assessment before the national court ruling in the final instance. 
76 The appeal court considers that, in the circumstances referred to above and in 
view of the fact that the Court of Justice of the European Union has not yet ruled 
on the question at issue, it is necessary, pursuant to Article 267 TFEU, to refer the 
questions [set out in the operative part] to the Court of Justice of the European 
Union for a preliminary ruling. 
Justification of the request for a preliminary ruling by the expedited procedure 
77 Pursuant to Article 105(1) of the Rules of Procedure of the Court, ‘at the request 
of the referring court or tribunal or, exceptionally, of his own motion, the 
President of the Court may, where the nature of the case requires that it be dealt 
with within a short time, after hearing the Judge-Rapporteur and the Advocate 
General, decide that a reference for a preliminary ruling is to be determined 
pursuant to an expedited procedure derogating from the provisions of these 
Rules’. 
78 The present procedure constitutes [a] public procurement dispute and, by its 
nature, it is justified to deal with the reference for a preliminary ruling within a 
short time, under an expedited procedure. 
79 Similarly, the subject-matter of the contract falls within the field of public health, 
since the contracting authority (the provincial emergency hospital, Cluj-Napoca) 
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18  
is seeking to supply, install and commission a surgical robot, which is necessary 
for the performance of activities there. 
80 Those special circumstances justify the Court giving a swift ruling on the 
questions referred. 
[…] ON THOSE GROUNDS 
IN THE NAME OF THE LAW 
ORDERS: 
Pursuant to Article 276 TFEU, refers the following questions to the Court of 
Justice of the European Union for a preliminary ruling: 
1. Must the principle of transparency governed by Article 18(1) of 
Directive 2014/24/EU, in conjunction with Articles 49 and 2(1)(13) of 
Directive 2014/24/EU, be interpreted as precluding the exclusion of a 
tenderer on the basis of certain technical specifications, justified by ‘objective 
need’, where that need is defined by the contracting authority only after 
publication of the contract notice and the procurement documents? 
2. May the provisions of Article 42(1), (3)(b) and (4) of Directive 
2014/24/EU be interpreted as meaning that the assessment of the restrictive 
nature of the technical specifications, which requires the words ‘or 
equivalent’ in the procurement documentation, is also carried out by means 
of a cumulative analysis of all the requirements of the procurement 
documentation? 
3. If the answer to the first two questions is in the affirmative, can the 
principle of equal treatment and the principle of non-discrimination, laid 
down in Article 18(1) of Directive 2014/24/EU, be interpreted as meaning that 
the assessment of the restrictive nature of the technical specifications must be 
linked to the contracting authority’s ‘objective need’ prior to the publication 
of the contract notice and the procurement documentation? 
The Court of Justice of the European Union is requested to apply, on the basis of 
Article 105 of the Rules of Procedure of the Court of Justice of the European 
Union, the expedited procedure to the present request for a preliminary ruling. 
[…]