Opinion of the Advocate General — ECLI:EU:C:2020:728
Date: 2020-09-17
Language of the case: Dutch
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary  C-387/19 — 1 
Case C-387/19 
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:  
17 May 2019 
Referring court:  
Raad van State (Belgium) 
Date of the decision to refer:  
7 May 2019 
Applicants:  
RTS infra BVBA  
Aannemingsbedrijf Norré-Behaegel 
Defendant:  
Vlaams Gewest 
  
Subject of the action in the main proceedings 
Action for the annulment of the decision of 29 November 2016 of the afdeling 
Wegen en Verkeer Oost-Vlaanderen (Department of Roads and Traffic of East 
Flanders) of the agentschap Wegen en Verkeer (Agency for Roads and Traffic) of 
the Flemish Region by which a public contract for roadworks was awarded to a 
competitor of the applicants.  
Subject and legal basis of the request for a preliminary ruling 
Legal basis 267 TFEU 
The reference for a preliminary ruling concerns the question whether a tenderer 
which has been excluded by the contracting authority on account of ‘grave 
professional misconduct’ should be expected, on its own initiative, to report 
possible grave professional misconduct and any self-cleaning measures it has 
taken in that regard, or whether the contracting authority should still make 
EN 
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provision for an adversarial procedure after it has established that, in its own 
opinion, there is grave misconduct that may result in exclusion and before being 
able to effectively make a decision with regard to exclusion.  
Questions referred 
1. Should the provisions of Article 57(4)(c) and (g), in conjunction with 
paragraphs 6 and 7 of that article, 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 be interpreted as precluding an application 
whereby the economic operator is required to provide evidence on its own 
initiative of the measures that the economic operator has taken to demonstrate its 
reliability?  
2. If so, do the provisions of Article 57(4)(c) and (g), in conjunction with 
paragraphs 6 and 7 of that article, of [Directive 2014/24] therefore have direct 
effect? 
Provisions of European Union law cited 
– Article 57(4)(c) and (g), and paragraphs 6 and 7 of that article; Article 69(1); 
Article 90 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 (OJ 2014 L 94, p. 65) 
– General legal principle of audi et alteram partem 
– Commission Implementing Regulation (EU) 2016/7 of 5 January 2016 
establishing the standard form for the European Single Procurement Document 
(OJ 2016 L 3, p. 16)  
Provisions of national law cited 
– Articles 23 and 24 of the wet van 15 juni 2006 overheidsopdrachten en 
bepaalde opdrachten voor werken, leveringen en diensten (Law of 15 June 
2006 on public procurement and certain contracts for works, supplies and 
services) 
– Articles 2 and 3 of the wet van 29 juli 1991 betreffende de uitdrukkelijke 
motivering van de bestuurshandelingen (Law of 29 July 1991 on the formal 
notification of the reasons for administrative acts) 
– Article 70 of the wet van 17 juni 2016 inzake overheidsopdrachten (Law of 
17 June 2016 on public procurement) 
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– Article 61, § 1 and § 2, of the koninklijk besluit van 15 juli 2011 plaatsing 
overheidsopdrachten klassieke sectoren (Royal Decree of 15 July 2011 on 
public procurement in the classic sectors) 
– Article 20 of the algemene aannemingsvoorwaarden voor de 
overheidsopdrachten voor aanneming van werken, leveringen en diensten en 
voor de concessies voor openbare werken (General contracting conditions for 
public contracts for works, supplies and services and for public works 
concessions), attached as an annex to the Koninklijk besluit van 26 september 
1996 (Royal Decree of 26 September 1996) 
– General principles of law relating to sound administration: the principles of 
equality, competition, due diligence, and transparency, and the principle of 
providing substantive reasons  
Brief summary of the facts and the procedure in the main proceedings 
1 The agentschap Wegen en Verkeer issued a public works contract notice for the 
award of roadworks. The contract is awarded by open tender. The notice expressly 
points out that the contracting authority may exclude a tenderer if it is guilty of 
grave professional misconduct.  
2 The tender submitted by the applicants, who together form a temporary company, 
is excluded from the contract award decision due to grave professional 
misconduct. The statement of reasons in the contract award report, which is 
included in the contract award decision, explains the facts that are considered to 
constitute grave professional misconduct for each of the applicants. This relates, 
among other things, to breaches of health and safety regulations on site, 
inadequate road signs and (technical) shortcomings in the execution of earlier 
works.  
3 In response to that contract award decision, the applicants have brought an action 
for annulment before the referring court. 
4 The latter finds that the resolution of the dispute requires the interpretation of 
European Union law, in particular, Article 57 of Directive 2014/24.  
Main submissions of the parties to the main proceedings  
5 The applicants allege infringement of Articles 23 and 24 of the aforementioned 
wet van 15 juni 2006, of Article 57(4), (6) and (7) of Directive 2014/24, of the 
principle of audi et alteram partem contained in the Directive, of Articles 2 and 3 
of the wet van 29 juli 1991 (‘formelemotiveringswet’) (‘Law on the formal 
provision of reasons’) and of several general principles of sound administration.  
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6 They consider that, before being excluded on grounds of alleged grave 
professional misconduct, they must be given the opportunity to put forward a 
defence in which they can show that they have remedied the problems. The 
aforementioned provisions of the Directive provide for an adversarial procedure 
by which the tenderer may provide evidence that past errors have been corrected 
or superseded and, moreover, provide that facts such as those at issue here may be 
used for a maximum of three years to exclude a tenderer, even if it does not show 
that it has solved the problems in the meantime.  
7 The applicants rely on the direct effect of the aforementioned provisions of that 
Directive. 
They may invoke that Directive, which was not transposed into the Belgian legal 
order in time, against the defendant as a regional administration, in view of the 
broad interpretation by the Court of Justice of the concept of ‘State’.  
They are of the view that those provisions are unconditional, clear and precise. 
The statement that a Member State ‘shall put in place the necessary measures’ and 
the mere mention in the preamble that the exact procedural and substantive 
conditions should be worked out by the Member State — conditions which, 
according to the applicants, relate only to the procedure — do not in themselves 
mean that the introduction of every economic operator’s right to provide evidence 
of its self-clearance would be conditional.  
The applicants refer, inter alia, to the structure of the Directive, which, in their 
view, should be read in the sense that every economic operator should have the 
possibility of showing that it has put measures in place if the contracting authority 
considers that its integrity has been rendered questionable by misconduct. After 
all, the tenderer can only know what the public authorities consider to be grave 
misconduct if this is communicated to it. Consequently, ‘the ratio legis of the 
defended action ... [implies] that the person who is allowed to defend an action 
knows what he can defend’. It is therefore not the case that a candidate or tenderer 
should provide evidence ‘on its own initiative’ that it has taken corrective 
measures. According to the applicants, that obligation, which was imposed by a 
future law, is not applicable to the contract at issue here and, moreover, it is 
contrary to the essence and the purpose of Article 57 of the Directive, which, as in 
the case of abnormal prices, makes provision for an adversarial verification 
procedure.  
In addition, the legal principle audi et alteram partem, which is explicitly included 
in the Directive, has also been infringed. Furthermore, the defendant has been 
careless and has acted contrary to the principle of transparency, the principle of 
fair competition and the principle of equality, since the applicants have been 
treated unequally in comparison with their ‘European colleagues’.  
8 The defendant disputes primarily that Article 57 of Directive 2014/24 has direct 
effect. It disputes the unconditional, clear and precise nature of Article 57(6) of 
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that Directive. At least as far as the corrective measures are concerned, the 
defendant maintains that that requirement has not been met, since Article 57(7) 
provides that ‘[b]y law, regulation or administrative provision and having regard 
to Union law, Member States shall specify the implementing conditions for this 
Article’. In that context, it also refers to recital 102 of that Directive. The concise 
manner in which the Directive ‘works out’ the system of corrective measures also 
implies that Member States have a wide discretion in implementing the Directive 
in that regard. For example, the Directive does not specify when the candidate or 
tenderer must report that corrective measures were taken, or how this should be 
done. That the Member States themselves have wide powers to draw up a regime 
of corrective measures is also clear from the fact that the Directive leaves the 
Member States free to determine which body — the contracting authority or 
another body — is competent to evaluate the corrective measures. A further 
indication of this is the fact that the Belgian legislature added or clarified 
fundamental issues to what was still a piece of future legislation at the time the 
contract was awarded (Article 70 of the wet van 17 juni 2016, which transposes 
Article 57 of Directive 2014/24) with regard to the regime relating to corrective 
measures. 
9 In the alternative, the defendant argues that the contested decision does not 
infringe the self-cleaning regime laid down by the Directive. Since the Directive 
only describes in very general terms how the system of corrective action is to be 
implemented, it is difficult for a contracting authority to determine, on the basis of 
Article 57(6), how it should apply self-cleaning. According to the defendant, it is 
therefore logical that, in such circumstances, a connection be sought to the wet 
van 17 juni 2016, which imposes the obligation to provide evidence on one’s own 
initiative of the concrete measures taken, even if that law has not yet entered into 
force. According to the defendant, nothing prevented the applicants from reporting 
the corrective measures concerned when submitting their tender.  
According to the defendant, such an interpretation of the system of corrective 
measures is not contrary to Article 57 of the Directive. After all, the tenderer is 
best placed to assess whether it is covered by one of the optional grounds for 
exclusion and should therefore take corrective measures. In the present case, the 
seriousness of the shortcomings evidenced in earlier works contracts was obvious, 
all the more since those contracts also originated from the defendant.  
As regards the comparison with the adversarial verification procedure in the case 
of abnormal prices, the defendant replies that it appears from Article 57(6) itself 
and from its comparison with Article 69(1) of the Directive that there is a 
fundamental difference between those provisions.  
It also refers to Implementing Regulation (EU) 2016/7, where the model form 
contained in the annex offers the possibility of indicating whether self-cleaning 
measures have been taken with regard to any optional grounds for exclusion, 
including grave professional misconduct which is at issue in the present case. It 
concludes from this that the European Commission is also of the view that it 
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follows from Directive 2014/24 that it is up to the candidate or tenderer to take the 
initiative and to bring any corrective measures to the attention of the contracting 
authority.  
The defendant further disputes the contention that the self-cleaning procedure 
would differ depending on the applicable ground for exclusion. Since the 
Directive aims at a significant administrative simplification of the public 
procurement procedure, it cannot be construed as indicating that it was the 
intention of the European legislature to provide for different procedures in relation 
to self-cleaning.  
In the further alternative, the defendant claims that the principles of sound 
administration have not been infringed. Finally, referring to the settled case-law of 
the Raad van State (Council of State) on the right to be heard, it states that a 
contracting authority wishing to make an exclusion decision is in principle not 
subject to the obligation to give effect to the right to be heard since it is not 
removing a previously granted advantage or imposing a penalty, but is simply not 
granting a requested benefit.  
Brief summary of the reasons for the referral 
10 First of all, the referring court finds that the contract notice was published on 11 
and 13 May 2016, that is to say, after the deadline for transposition of the 
Directive, namely, 18 April 2016. From that date onwards, the standard form 
referred to in Implementing Regulation 2016/7 must also be used for the 
preparation of the European Single Procurement Document. Under ‘Exclusion 
grounds’ that form mentions the possibility of reporting whether the economic 
operator has taken self-cleaning measures and to describe these measures where 
appropriate.  
Article 61, § 2, 4 °, of the koninklijk besluit van 2011, applicable to the main 
proceedings, on the basis of which the applicants were excluded, provided that the 
candidate or tenderer which is guilty of grave professional misconduct must be 
excluded from every stage of the contract award procedure.  
The referring court then points out that the wet van 17 juni 2016 — which 
provides for a procedure whereby the candidate or tenderer which can be excluded 
on the grounds of serious shortcomings, may on its own initiative provide 
evidence that it has taken ‘corrective measures’ — had not yet entered into force 
on the date of the contested decision.  
The referring court considers that, for the purpose of assessing the action for 
annulment, the question to be answered is whether or not Article 57(4)(c) and (g), 
in conjunction with paragraphs 6 and 7 of that article, of Directive 2014/24 
precludes the interpretation that an economic operator which, as in the present 
case, according to the contracting authority is guilty of grave professional 
misconduct and did not, on its own initiative, report any corrective action, is to be 
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excluded without — expressly within the framework of an intended exclusion by 
the contracting authority — being given the opportunity to provide evidence of 
any measures taken to nevertheless prove its reliability, or being invited to do so 
in the notice or tender documents.  
If the answer to the aforementioned question is that the Directive permits the 
interpretation concerned, the question of whether the relevant provisions of the 
Directive have direct effect should not be examined further.  
However, the referring court finds no clear answer to that question in the wording 
of the provisions concerned or in the case-law of the Court of Justice.  
In fact, previous case-law of the Court of Justice, in particular the judgment of 
24 October 2018, C-124/17, Vossloh Laeis GmbH (paragraphs 20 to 23 and the 
operative part) concerning the self-cleaning regime, does not deal with the 
question at issue here, in particular, whether Article 57(6) of the Directive may be 
interpreted as meaning that an economic operator should adopt self-cleaning 
measures on its own initiative, or whether, before a decision can be taken to 
exclude it, it should be invited to do so.  
The wording of the relevant provision of the Directive is not conclusive since it 
merely states that ‘[a]ny economic operator that is in one of the situations referred 
to in paragraphs 1 and 4 may provide evidence to the effect that measures taken 
by the economic operator are sufficient to demonstrate its reliability despite the 
existence of a relevant ground for exclusion.’ Recital 102 of the Directive also 
merely states in general terms that ‘[e]conomic operators should have the 
possibility to request that compliance measures taken with a view to possible 
admission to the procurement procedure be examined.’  
The standard form included in Implementing Regulation 2016/7 makes provision 
under ‘Exclusion grounds’ for the possibility of reporting whether the economic 
operator has taken self-cleaning measures and of describing those measures, if 
necessary.  
However, the possible grounds for exclusion relate to various situations. In some 
cases it will be clearly foreseeable for the economic operator concerned whether 
or not an applicable ground for exclusion exists. In the case of other grounds for 
exclusion, it may be less obvious. There are mandatory and optional grounds for 
exclusion. To the extent that there may be ‘grave professional misconduct’, such 
as that at issue here, it is for the contracting authority, in accordance with recital 
101 of the Directive, to assess for itself to what extent this constitutes grave 
professional misconduct. The classification as such by the contracting authority is 
not always foreseeable for the tenderer concerned. Should the tenderer then act on 
its own initiative or should the contracting authority provide for an adversarial 
procedure after it has established that, in its own view, there is grave misconduct 
that could lead to exclusion?  
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Furthermore, self-cleaning measures can be involved in the assessment of the 
proportionality of the exclusion measure. The referring court is of the view that an 
interpretation requiring that provision be made for an adversarial procedure before 
a decision on exclusion can effectively be taken also seems to promote 
competition. 
On the other hand, by placing the initiative with the tenderer, there is a greater 
chance that several contracting authorities will have the same information at their 
disposal when they have to make an award decision and that in that sense there 
will be greater transparency.  
As regards the analogy with the rules on the investigation of abnormally low 
prices, the referring court finds that Article 69 of the Directive relating to 
abnormally low prices prescribes a number of active actions for the contracting 
authority, and that that is not expressly the case with the rules on self-cleaning in 
Article 57(6) of the Directive. It also refers to the different objectives of the rules 
on abnormal prices and on self-cleaning.  
11 As regards the direct effect of the relevant provisions, the referring court points 
out that the Court of Justice has not yet ruled on that point. It argues, however, 
that in order for Article 57(6) of Directive 2014/24 to be applied, it requires 
additional measures, in particular where it provides that any economic operator 
may provide evidence to the effect that measures taken by the economic operator 
are sufficient to demonstrate its reliability despite the existence of a relevant 
ground for exclusion. The same applies to Article 57(7) of that Directive. For 
example, the Directive does not specify when the candidate or tenderer must 
report that corrective measures were taken or how this should be done and to 
whom the evaluation of those measures is entrusted.  
12 On the other hand, it is clear from the case-law of the Court of Justice that the 
wording of a provision requiring the Member State to ‘put in place the necessary 
measures’ does not in itself preclude the Directive being able to grant a specific 
right unconditionally and sufficiently precisely. Thus, according to the referring 
court, it cannot be ruled out entirely that, although the provisions on self-cleaning 
do not appear to be capable of having direct effect in their entirety, that may well 
be the case with regard to certain parts thereof, which serve as minimum 
guarantees.  
If the Court of Justice considers that the possibility afforded to a tenderer in 
Article 57(6) of Directive 2014/24 to provide evidence of its reliability despite the 
exclusion due to grave misconduct means that the contracting authority should in 
some way afford a tenderer that opportunity before excluding it on that ground, 
the question therefore arises as to whether it can be regarded as a kind of 
minimum protection which can be precisely established under the Directive.  
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13 Therefore, since there is doubt about the interpretation of the relevant provisions, 
the referring court has decided to refer the above questions to the Court of Justice 
for a preliminary ruling.