62022CJ0652_RES
Case C‑652/22
Kolin Inşaat Turizm Sanayi ve Ticaret AȘ
v
Državna komisija za kontrolu postupaka javne nabave
(Request for a preliminary ruling from the Visoki upravni sud)
Judgment of the Court (Grand Chamber) of 22 October 2024
(Reference for a preliminary ruling – Public procurement in the European Union – Directive 2014/25/EU – Article 43 – Economic operators of a third country which has not concluded an international agreement with the European Union which guarantees access to public procurement in a reciprocal and equal manner – No right on the part of those economic operators to ‘no less favourable’ treatment – Participation of such an economic operator in a public procurement procedure – Inapplicability of Directive 2014/25 – Inadmissibility in the context of an action brought by that economic operator seeking a request for a preliminary ruling concerning the interpretation of provisions of that directive)
Questions referred for a preliminary ruling – Admissibility – Limits – Procurement in the water, energy, transport and postal services sectors – Directive 2014/25 – Scope – Economic operators of a third country which has not concluded an international agreement with the European Union which guarantees equal and reciprocal access to public procurement – No right on the part of those economic operators to ‘no less favourable’ treatment – Participation of such an economic operator in a public procurement procedure in a Member State – Inapplicability of Directive 2014/25 – National authorities not competent to render applicable to that economic operator national provisions transposing that directive – Interpretation sought not required for the outcome of the dispute in the main proceedings – Inadmissibility
(Art. 267 TFEU; European Parliament and Council Directive 2014/25, Arts 36 and 76)
(see paragraphs 38, 41-48, 51-61, 65, 67-69, operative part)
Résumé
Ruling as the Grand Chamber, the Court of Justice declares inadmissible the request for a preliminary ruling made by the Visoki upravni sud (High Administrative Court, Croatia), on the ground that the provisions of Directive 2014/25, (
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) the interpretation of which was sought by that national court, do not apply to economic operators from third countries which have not concluded an international agreement with the European Union guaranteeing equal and reciprocal access to public procurement. In addition, the Court considers that the national provisions transposing that directive cannot be made applicable to those economic operators by the authorities of a Member State, as otherwise the exclusive competence of the European Union in the field of the common commercial policy would be disregarded.
In September 2020, HŽ Infrastruktura d.o.o., a company governed by Croatian law (‘the contracting entity’), opened a procedure for the award of a public contract for the construction of railway infrastructure connecting two localities in Croatia, to be awarded on the basis of the criterion of the most economically advantageous tender. According to the instructions sent to tenderers by the contracting entity, they were to demonstrate their technical and professional abilities by providing a document showing that, during the 10 years preceding the opening of that procedure, construction work on railway or road infrastructure had been carried out by those tenderers.
In January 2022, the contracting entity decided to award the public contract concerned to the Strabag group, made up of three companies governed by Austrian law, Croatian law and Czech law respectively. Kolin Inşaat Turizm Sanayi ve Ticaret AȘ (‘Kolin’), a company governed by Turkish law which is one of the tenderers, filed a complaint against the award decision with the Državna komisija za kontrolu postupaka javne nabave (State Commission for Supervision of Public Procurement Procedures, Croatia; ‘the supervisory commission’). Taking the view that it had not been duly established that the Strabag group had the required technical and professional capacity, the supervisory commission set aside the decision awarding the public contract in question.
Following the setting aside of that decision, the contracting entity requested the Strabag group to provide an expanded list of the works carried out, accompanied by a certificate attesting to the proper execution and completion of those works. The Strabag group submitted such a list, accompanied by the relevant certificate, which contained a new reference to other works carried out. Following a review and re-evaluation of the tenders, the contracting entity adopted a new decision in April 2022 to award the contract at issue in the main proceedings to the Strabag group. It took the view that the new reference was sufficient in itself to establish that that group had the required technical and professional capacity.
Claiming that the contracting entity’s choice to invite the Strabag group to supplement its list of works was unlawful, Kolin filed a complaint against the new award decision with the supervisory commission. The supervisory commission rejected that complaint on the ground that there was no provision of national law which prevented the Strabag group from supplementing the list of works by indicating other work it had carried out in addition to that initially included, since the Croatian Law on Public Procurement allowed the contracting authority to invite a tenderer to supplement or provide an explanation for the evidence provided. (
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Kolin therefore brought an action for annulment of the decision of the supervisory commission before the Croatian High Administrative Court, which is the referring court. In the light of Articles 36 and 76 of Directive 2014/25, that court has doubts as to whether the contracting entity is entitled to take into account, after its initial decision awarding the contract concerned was set aside, additional documents relating to the technical and professional capacity of the group, which were not included in the initial tender submitted by that group and which were presented by it at the request of that contracting entity. The referring court therefore decided to refer several questions to the Court of Justice for a preliminary ruling concerning the interpretation of those provisions.
Findings of the Court
In so far as the questions referred by the national court concern the interpretation of a provision of EU law, the Court is, in principle, bound to give a ruling. Nevertheless, the Court must examine the circumstances in which cases are referred to it by the national court, in order to assess whether it has jurisdiction or whether the request submitted to it is admissible. The Court may, in particular, find it necessary to examine whether the provisions of EU law to which the questions referred relate are applicable to the dispute in the main proceedings. If that is not the case, those provisions are irrelevant in resolving that dispute and the questions referred for a preliminary ruling are not necessary to enable the referring court to give judgment, with the result that those questions must be held to be inadmissible.
First, the Court aims to assess whether the action brought before a court of a Member State by an economic operator of a third country, in this case the Republic of Türkiye, in order to challenge the decision to award a public contract made in a Member State, may be examined in the light of the public procurement rules established by the EU legislature, such as Articles 36 and 76 of Directive 2014/25, which are the subject of the questions referred for a preliminary ruling.
In that regard, the Court notes at the outset that the European Union is bound, with respect to certain third countries, by international agreements, in particular the World Trade Organization Agreement on Government Procurement (GPA), (
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) which guarantee, on a reciprocal and equal basis, access for EU economic operators to public procurement in those third countries and for economic operators of those third countries to public procurement in the European Union. Article 43 of Directive 2014/25 reflects those international commitments of the European Union by providing that, in so far the GPA or other international agreements by which the European Union is bound so provide, contracting entities of the Member States must accord to economic operators of third countries which are parties to such an agreement treatment no less favourable than that accorded to EU economic operators. That right to no less favourable treatment enjoyed by economic operators of those third countries means that those economic operators may rely on the provisions of that directive.
Other third countries, including the Republic of Türkiye, have not, to date, concluded with the European Union an international agreement such as those referred to in Article 43 of Directive 2014/25. As regards economic operators of those third countries, the Court notes that, although EU law does not preclude those economic operators, in the absence of exclusion measures adopted by the European Union, from being allowed to participate in a public procurement procedure governed by Directive 2014/25, it does, however, preclude those operators from being able, in the context of their participation in such a procedure, to rely on the directive and thus to require that their tender be treated equally to those submitted by tenderers from Member States and by tenderers from third countries which have concluded an international agreement with the European Union referred to in Article 43 of that directive. The inclusion of economic operators of third countries which have not concluded such an international agreement with the European Union within the scope of Directive 2014/25 would have the effect of conferring on them a right to no less favourable treatment, contrary to Article 43 of that directive, which limits the benefit of that right to economic operators from third countries which have concluded an international agreement with the European Union within the meaning of that provision.
Therefore, the right conferred by Article 45(1) of Directive 2014/25 on ‘any interested economic operator’ to submit a tender in response to a call for competition in the context of an open public procurement procedure in the European Union does not extend to economic operators of third countries which have not concluded such an international agreement with the European Union. Nor does it imply that those operators, where they are admitted to participate in such a procedure, are entitled to rely on that directive. Therefore, in a situation such as that at issue in the main proceedings, involving the participation, as accepted by the contracting entity, of a Turkish economic operator in a public procurement procedure governed by Directive 2014/25, that operator cannot rely on Articles 36 and 76 of that directive in order to challenge the decision awarding the contract concerned.
Secondly, the Court examines whether the questions referred, which concern the interpretation of those provisions of Directive 2014/25, are nevertheless admissible in the light of the fact that the provisions of the Croatian legislation transposing those provisions are interpreted as applying without distinction to all tenderers from the European Union and third countries and as, consequently, being capable of being relied on by the Turkish economic operator concerned.
In that regard, the Court recalls that, according to the case-law, it is true that requests for a preliminary ruling concerning the interpretation of EU law in situations which fall outside the scope of EU law are admissible where those provisions, without amendment of their purpose or scope, have been rendered applicable on account of a direct and unconditional reference made by national law. In those situations, it is in the clear interest of the EU legal order that provisions taken from EU law should be interpreted uniformly.
However, that case-law cannot apply where the provisions of national law transposing a directive are rendered applicable by the authorities of a Member State in disregard of an exclusive competence of the European Union. That is the case here as regards the participation in public procurement procedures of economic operators of third countries which have not concluded an international agreement with the European Union guaranteeing equal and reciprocal access to those procedures.
The common commercial policy, referred to in Article 207 TFEU, for which the European Union has exclusive competence by virtue of Article 3(1)(e) TFEU, concerns trade with third countries and encompasses any EU act which is essentially intended to promote, facilitate or govern such trade and has direct and immediate effects on it. Any act of general application specifically intended to determine the arrangements under which economic operators from a third country may participate in public procurement procedures in the European Union is such as to have direct and immediate effects on trade in goods and services between that the European Union and that third country, with the result that it falls within the exclusive competence of the European Union under that provision. (
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The Court adds that, although the common commercial policy does not cover the negotiation and conclusion of international agreements in the field of transport (
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) and cannot therefore entirely cover the issue of access of economic operators from third countries to the sectoral public procurement covered by Directive 2014/25, the fact remains that the conclusion of an agreement guaranteeing such access also falls within an exclusive competence of the European Union, namely that referred to in Article 3(2) TFEU.
Thus, only the European Union has competence to legislate and, therefore, to adopt a legally binding act of general application concerning access to public procurement procedures for economic operators of third countries which have not concluded an international agreement with the European Union guaranteeing equal and reciprocal access to public procurement.
Accordingly, the Court considers that national authorities are not competent to render applicable, to those economic operators from third countries who have been allowed, by a contracting entity, to participate in a procedure for the award of a public contract in the Member State concerned, national provisions transposing the rules contained in Directive 2014/25, as otherwise the exclusive nature of the European Union’s competence would be disregarded. Consequently, the Court considers that the interpretation of Articles 36 and 76 of Directive 2014/25 cannot in any way be relevant to the outcome of the dispute in the main proceedings and declares the request for a preliminary ruling to be inadmissible.
(
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)	Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ 2014 L 94, p. 243).
(
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)	Article 263(2) of the Zakon o javnoj nabavi (Law on Public Procurement) in the version applicable to the dispute in the main proceedings.
(
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)	Agreement approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the Agreements reached in the Uruguay Round multilateral negotiations (1986 to 1994) (OJ 1994 L 336, p. 1).
(
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)	That exclusive competence is illustrated by Article 86 of Directive 2014/25, which confers on the European Union, and not on the Member States, the power to suspend or restrict the participation of undertakings of a third country in public procurement procedures in the European Union.
(
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)	As is apparent from Article 207(5) TFEU.