OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 24 November 2015 ( 1 )

Case C‑396/14

MT Højgaard A/S

Züblin A/S

v

Banedanmark

(Request for a preliminary ruling from Klagenævnet for Udbud (Denmark))

‛Reference for a preliminary ruling — Article 267 TFEU — Jurisdiction of the Court — Status of the referring body as a court or tribunal — Independence — Directive 2004/17/EC — Public procurement — Negotiated procedure — Principle of equal treatment — Change to a group of economic operators in the course of a procurement procedure — Award of the contract to a company which had not been pre-selected’

1. Where a group of economic operators has been pre-selected and has submitted a tender in connection with a public procurement procedure and, subsequently, before the contract is awarded, that group is dissolved because of the insolvency of one of its two members, can the contracting authority, in the light of the principle of equal treatment, allow the remaining member, which did not submit an application as such and was therefore not pre-selected, to continue with the procedure and ultimately award it the contract?

2. That is, essentially, the novel question referred to the Court by Klagenævnet for Udbud (the Public Procurement Complaints Board, Denmark) in a dispute between MT Højgaard A/S and Züblin A/S (collectively ‘MTHZ’), a group of economic operators which took part in a procurement procedure, and Banedanmark, the Danish rail infrastructure manager and contracting authority in that procedure. Before the referring court, MTHZ claims that, in allowing Per Aarsleff A/S (‘Aarsleff’), the remaining member of a group that had been dissolved during the procedure, to take part in the tendering process in place of the group, even though Aarsleff had not been pre‑selected, Banedanmark infringed the principle of equal treatment laid down in Article 10 of Directive 2004/17/EC. ( 2 )

3. In the present case, the Court is first requested by the Danish Government to state the reasons why Klagenævnet for Udbud constitutes a court or tribunal for the purposes of Article 267 TFEU. Then, as regards the response to the substance of the question raised by the referring court, the Court will be called upon to strike a fair balance between, on the one hand, the public interest of contracting authorities in ensuring that public procurement procedures are characterised by the widest possible opening-up to competition so that as many tenderers as possible participate in a tendering process, and, on the other hand, the interest — or rather, the right — of all tenderers taking part in a tendering process that when they participate in the procedure there is strict observance of equality of opportunity for all tenderers.

I – Legal framework

A – EU law

4. The contract at issue in the main proceedings concerns the construction of railway tracks and is therefore governed by the provisions of Directive 2004/17, commonly referred to as the ‘sectoral directive’.

5. Recital 9 of Directive 2004/17 states that ‘[i]n order to guarantee the opening up to competition of public procurement contracts awarded by entities operating in the … transport … sectors, it is advisable to draw up provisions for Community coordination of contracts above a certain value. Such coordination is based on the requirements inferable from Articles 14, 28 and 49 of the EC Treaty and from Article 97 of the Euratom Treaty, namely the principle of equal treatment, of which the principle of non-discrimination is no more than a specific expression … In view of the nature of the sectors affected by such coordination, the latter should, while safeguarding the application of those principles, establish a framework for sound commercial practice and should allow maximum flexibility. …’.

6. Article 10 of Directive 2004/17, entitled ‘Principles of awarding contracts’, provides that ‘[c]ontracting entities shall treat economic operators equally and non-discriminatorily and shall act in a transparent way’.

7. Article 11(2) of the Directive provides that ‘[g]roups of economic operators may submit tenders or put themselves forward as candidates. In order to submit a tender or a request to participate, these groups may not be required by the contracting entities to assume a specific legal form; however, the group selected may be required to do so when it has been awarded the contract, to the extent to which this change is necessary for the satisfactory performance of the contract.’

8. Forming part of Chapter VII of Directive 2004/17, entitled ‘Conduct of the procedure’, Article 51 is entitled ‘General provisions’ and provides as follows: ‘1. For the purpose of selecting participants in their award procedures: (a) contracting entities having provided rules and criteria for the exclusion of tenderers or candidates in accordance with Article 54(1), (2) or (4) shall exclude economic operators which comply with such rules and meet such criteria; (b) they shall select tenderers and candidates in accordance with the objective rules and criteria laid down pursuant to Article 54; (c) in restricted procedures and in negotiated procedures with a call for competition, they shall where appropriate reduce in accordance with Article 54 the number of candidates selected pursuant to subparagraphs (a) and (b). … 3. Contracting entities shall verify that the tenders submitted by the selected tenderers comply with the rules and requirements applicable to tenders and award the contract on the basis of the criteria laid down in Articles 55 and 57.’

9. Article 54 of Directive 2004/17 lays down the rules governing the criteria for qualitative selection which are established by contracting entities, and provides, in the last sentence of paragraph 3, that in restricted or negotiated procedures the ‘number of candidates selected shall … take account of the need to ensure adequate competition’.

10. Directive 2004/17 is to be repealed, with effect from 18 April 2016, by Directive 2014/25/EU. ( 3 )

B – National law

11. Klagenævnet for Udbud was established by Lov nr. 344 af 06/06/1991 om Klagenævnet for Udbud (Law No 344 of 6 June 1991 on the Public Procurement Complaints Board). Its organisation and activities are governed by Lov nr. 492 af 12. maj 2010 om håndhævelse af udbudsreglerne med senere ændringer (Law No 492 of 12 May 2010 on the implementation of procurement rules, as amended; ‘the Law on public procurement’) and by Bekendtgørelse nr. 887 af 8/11/2011 om Klagenævnet for Udbud med senere ændringer (Decree No 887 of 8 November 2011 on the Public Procurement Complaints Board, as amended; ‘Decree No 887’).

12. The first paragraph of Article 2 of the Lov om visse erhvervsdrivende virksomheder (Law on certain commercial undertakings), published by Consolidated Law No 1295 of 15 November 2011, defines the concept of ‘interessentskab’ (partnership, ‘I/S’) as ‘an undertaking in which all participants are personally liable, jointly and severally and without limit, for the obligations of the partnership’. An I/S is an independent legal entity and a person with legal capacity.

II – Facts, national procedure and question referred

13. In January 2013 Banedanmark published, in accordance with Directive 2004/17, a negotiated procurement procedure notice for the construction of a project entitled ‘TP 4 Urban Tunnels’ in connection with the building of a new railway track between Copenhagen and Ringsted.

14. It is clear from the documents for that contract that the procedure required the submission of three tenders and that negotiation would take place after submission of the first two tenders, with the contract to be awarded on the basis of the third and final tender. The contract notice also stated that Banedanmark intended to invite four to six candidates to submit tenders, and if there were more than six candidates it would conduct a preliminary selection on the basis of references for similar works. There was no minimum requirement in order to be pre-selected.

15. Five economic operators submitted applications and Banedanmark pre‑selected all five. However, in June 2013, one of the undertakings withdrew, leaving only four pre-selected tenderers.

16. Among those was a partnership composed of E. Pihl & Søn A/S (‘Pihl’) and Aarsleff, which had applied for pre-selection as a consortium in the form of an I/S called ‘JV Pihl — Aarsleff — TP 4 Urban Tunnel I/S’. Pihl and Aarsleff were among the largest building and construction companies in Denmark. The contract constituting the I/S was concluded between Pihl and Aarsleff on 26 August 2013.

17. However, on that same date — 26 August 2013 — an insolvency order was delivered in respect of Pihl. Banedanmark learned of the insolvency order that afternoon and immediately asked Aarsleff about the significance of the insolvency for the ongoing procurement procedure.

18. Despite the insolvency order the previous day, the I/S submitted its first tender on 27 August 2013, signed by Aarsleff and Pihl, but not by the latter’s liquidator.

19. After lengthy correspondence with Aarsleff about how to manage the consequences of Pihl’s insolvency, on 15 October 2013 Banedanmark informed all tenderers of its decision to allow Aarsleff to continue to participate in the procurement procedure on its own, despite Pihl’s insolvency.

20. In its notice, Banedanmark based its decision on the fact that Aarsleff fulfilled the requirements to participate in the tender without the economic and technical capacity of Pihl and that it had not been significant for the decision to invite the group to participate in the tender that Pihl was part of the group. In the notice, Banedanmark also put emphasis on the fact that Pihl would not be replaced by a new tenderer in the joint venture and that the selected tenderers would thus remain the same, as no new operator was permitted to participate in the tendering. Banedanmark also pointed out that Aarsleff had taken over the contracts of fifty salaried employees from Pihl after the insolvency proceedings began, including key persons for the completion of the project that was the subject of the call for tenders.

21. Aarsleff thereupon submitted a second tender in its own name and gave notice that it was submitting the tender as the continuing contractor from the group constituted with Pihl, that the insolvency estate had not given notice that it wished to continue the contract constituting the group, and that Aarsleff had therefore terminated that contract. On the basis of its assessment of the second tenders received, Banedanmark selected — in accordance with the tender specifications — the three economically most advantageous tenders and asked the three tenderers selected to submit a third and final tender. They included Aarsleff and the MTHZ partnership. The final tenders were submitted on 12 December 2013.

22. On 20 December 2013, Banedanmark notified the three selected tenderers that it had decided to award the contract to Aarsleff, whose tender was, as a whole, the most economically advantageous in terms of quality and price.

23. Following that decision, MTHZ filed a complaint with the referring court, asking it, inter alia, to find that Banedanmark had acted contrary to the principles of equal treatment and transparency provided for in Article 10 of Directive 2004/17 by allowing Aarsleff, which had not been pre-selected, to take part in the tendering process in place of the group it had constituted with Pihl. It also requested that the decision to award the contract to Aarsleff be annulled.

24. It is evident from the order for reference that, in its decision of 28 January 2014, the referring court refused to attach suspensive effect to the complaint brought by MTHZ because the condition of urgency was not met. In that decision, the referring court did, however, consider that the fumus boni juris condition was met since, in its view, prima facie assessment of the complaint suggested that it was likely that MTHZ’s request for annulment would ultimately be successful. In that regard, the referring court first of all pointed out that a distinction should be drawn between a situation in which a group changed before the contract was awarded and a situation where the change occurred after the award. Secondly, it considered that the fact that a contracting authority has pre‑selected a group does not mean that the individual members of the group have each been pre-selected, irrespective of whether the contracting authority was able to understand, on the basis of the tender, that each of the members on their own satisfied the relevant requirements.

25. In its order for reference Klagenævnet for Udbud first points out that there is no provision of Danish law which prohibits a change in the composition of a group of contractors taking part in a public procurement procedure which occurs after submission of tenders. It goes on to observe that, in the contract notice, Banedanmark did not set any qualitative minimum requirements for tenderers’ technical aptitude, and it was only required to conduct a qualitative assessment if there were more than six applications to participate. That being so, on the basis of the information available concerning Aarsleff, it should be regarded as established that Aarsleff would have been pre-selected if it had applied for pre-selection on its own instead of as part of the group it constituted with Pihl.

26. However, Klagenævnet for Udbud has doubts as to whether the procedure followed was compatible with the principle of equal treatment. In those circumstances, it decided to stay the proceedings and refer the following question to the Court for a preliminary ruling: ‘Is the principle of equal treatment in Article 10 of Directive 2004/17, read in conjunction with Article 51 … to be interpreted as precluding, in a situation such as the one at issue here, a contracting authority from awarding the contract to a tenderer which had not applied for pre-selection and therefore was not pre-selected?’

III – Proceedings before the Court of Justice

27. The order for reference was received at the Court Registry on 20 August 2014. At the hearing on 8 September 2015, MTHZ, the Danish Government and the European Commission lodged observations and presented oral argument.

IV – Legal assessment

28. Before answering the question referred for a preliminary ruling by the referring court, the question raised by the Danish Government concerning the jurisdiction of the Court of Justice must be dealt with first.

A – The jurisdiction of the Court

29. In the view of the Danish Government, although the Court has already recognised, in the judgment in Unitron Scandinavia and 3-S, ( 4 ) that the referring body in the present case, Klagenævnet for Udbud, constitutes a ‘court or tribunal’ for the purposes of Article 267 TFEU, in view of the factors taken into consideration by the Court in the recent judgment in TDC, ( 5 ) where the problem was whether the status as a court or tribunal of another Danish complaints board, Teleklagenævnet (the Complaints Board for Telecommunications), could be established, it appears necessary to clarify whether and on what grounds Klagenævnet for Udbud may be recognised as having that status.

30. In that regard, it should be recalled that, according to settled case-law, in order to determine whether a body making a reference is a ‘court or tribunal’ for the purposes of Article 267 TFEU, which is a question governed by EU law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent. ( 6 )

31. As regards the criteria of whether the referring body is established by law, whether it is permanent, whether its procedure is inter partes and whether it applies rules of law, there is nothing in the documents to cast doubt on the nature of Klagenævnet for Udbud as a court or tribunal for the purposes of Article 267 TFEU, as recognised by the Court in the judgment in Unitron Scandinavia and 3-S, (C‑275/98, EU:C:1999:567) cited above. On the basis of the information supplied to the Court in the present proceedings, however, a more detailed examination is needed of the criteria relating to whether its jurisdiction is compulsory and whether it is independent, the latter criterion being the one on which the Court based its decision to deny Teleklagenævnet the status of a court or tribunal in the judgment in TDC, (C‑222/13, EU:C:2014:2265) cited above.

32. As regards, first of all, whether the jurisdiction of Klagenævnet for Udbud is compulsory, I would merely observe that the fact that this body has exclusive jurisdiction only during a ‘standstill’ period ( 7 ) and that, at the end of that period, its jurisdiction becomes alternative to that of the courts does not appear to cast doubt on its status as a court or tribunal.

33. It is clear from the case-law that the existence of an alternative remedy to court proceedings does not necessarily mean that the body offering that alternative remedy cannot be regarded as a ‘court or tribunal of a Member State’ within the meaning of Article 267 TFEU, provided that the decision of the referring body is binding — which is not in doubt in the present case ( 8 ) — and the body in question is established by law and its jurisdiction is independent of the wishes of the parties. ( 9 ) Furthermore, since the main action was brought during the standstill period, the jurisdiction of Klagenævnet for Udbud was compulsory at that point.

34. As regards, secondly, the criterion of independence, it should be remembered that the concept of independence, which is inherent to the task of adjudication, implies above all that the body in question must act as a third party in relation to the authority which adopted the decision complained of. It is evident from the case-law that this concept includes an external aspect, requiring the body to be protected against external intervention or pressure liable to jeopardise the independent judgment of its members as regards proceedings before them, and an internal aspect, which is linked to impartiality and seeks to ensure a level playing field for the parties to the proceedings and their respective interests in relation to the subject-matter of those proceedings. Those guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and the grounds for abstention, rejection and dismissal of its members, in order to dismiss any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it. ( 10 )

35. In the judgment in TDC, referred to by the Danish Government, the Court held that Teleklagenævnet did not constitute a court or tribunal for the purposes of Article 267 TFEU, considering that the body did not meet the criterion of independence. The Court based its finding on two factors. First, as regards the external aspect of independence, the Court pointed out that, although Danish legislation made provision for specific guarantees for the dismissal of judges of the ordinary courts, the conditions for the dismissal of members of the Teleklagenævnet, on the other hand, were not subject to any specific rules, other than the general rules of administrative law and employment law which apply in the event of an unlawful dismissal. ( 11 ) Secondly, as regards the internal aspect of independence, the Court held that Teleklagenævnet was not acting as a third party in relation to the interests at stake, finding that, if an appeal against one of its decisions was made before the ordinary courts, Teleklagenævnet was involved in the proceedings as defendant. ( 12 )

36. However, according to the information available to the Court, neither of the two factors taken into consideration by the Court in the judgment in TDC applies to Klagenævnet for Udbud.

37. As far as concerns, first, the internal aspect of independence, the Danish Government expressly stated both in its written observations and at the hearing that, unlike Teleklagenævnet, Klagenævnet for Udbud is not a party in cases brought before the ordinary courts against its decisions. There is therefore no reason to doubt that it acts as a third party in relation to the interests involved.

38. Secondly, as far as the external aspect of independence is concerned, it should be pointed out that it is clear from the documents available to the Court that there are appreciable differences between Teleklagenævnet and Klagenævnet for Udbud as regards their composition, guarantees against the dismissal of their members and their operation.

39. Thus, it is clear from the relevant provisions of the Law on public procurement that Klagenævnet for Udbud — which was set up in order, among other things, to implement Directive 89/665 ( 13 ) — is composed of a president and a number of vice-presidents (who form the presidency), as well as a number of expert members, all appointed by the Erhvervs- og vækstministeren (Minister for Enterprise and Growth) for a period of up to 4 years. ( 14 )

40. However, unlike Teleklagenævnet, the presidency of Klagenævnet for Udbud must be composed of district court and higher regional court judges. ( 15 ) As the Court pointed out in the judgment in TDC, ( 16 ) those judges are specifically protected against dismissal. That protection, which is based on Article 64 of the Danish Constitution, appears to extend also, according to statements made at the hearing, to the presidency of the Complaints Boards.

41. Furthermore, it appears from an examination of the provisions of the Law that members of the presidency may play a considerably greater role than the expert members in the decision-making of Klagenævnet for Udbud. In its ordinary composition, Klagenævnet for Udbud comprises one member of the presidency, acting as president, and one expert member. In the event of a split vote in the adoption of a decision, the president has the deciding vote. ( 17 ) Moreover, members of the presidency may adopt certain decisions without the involvement of the expert members ( 18 ) and they have a majority say in the adoption of decisions in more complex cases or cases involving matters of principle. ( 19 )

42. Admittedly, for some members of Klagenævnet for Udbud — the expert members — just as for the members of Teleklagenævnet, Danish law does not appear to lay down any specific rules concerning their dismissal, with only the general rules of administrative law and employment law applying in the event of an unlawful dismissal.

43. In that connection I would observe, however, that, while it is true that in certain decisions the Court has stated that, in order to consider the condition regarding the independence of the body making the reference as met, the case-law requires, inter alia, that dismissals of members of that body should be determined by express legislative provisions, ( 20 ) it must be said that in those cases, the finding that there were no such rules was just one — albeit very important — factor to be assessed as part of an overall examination ( 21 ) of the factors characterising the referring body in question. It was after considering all those factors as a whole that the Court decided, in those cases, that the bodies in question were not a court or tribunal. ( 22 ) In some cases, however, particularly as regards national bodies responsible for reviewing the award of public contracts under Directive 89/665, the Court recognised a referring body as a court or tribunal without questioning whether such rules existed. ( 23 )

44. In the present case it should be stated that not only are a large proportion of members of Klagenævnet for Udbud, and, in particular, the members likely to play a more important role in decision-making, covered by a specific — constitutional — guarantee against dismissal, but it is clear from the documents before the Court that other factors enhance the independence of that body from any improper outside pressure and intervention. Thus, Klagenævnet for Udbud is acting as a third party in relation to the authority which adopted the decision challenged in the main proceedings. ( 24 ) In particular, there is no functional link with the Erhvervsstyrelsen (the Danish Business Authority), which provides the secretariat, or with the contracting authorities whose decisions are challenged before it. ( 25 ) Moreover, Klagenævnet for Udbud carries out its functions in a wholly independent manner, does not occupy a hierarchical or subordinate position in relation to any other body and does not take orders or instructions from any source whatsoever. ( 26 ) All its members are required to perform their duties independently. ( 27 ) Furthermore, in so far as Klagenævnet for Udbud can, among other things, establish the illegality of unlawful contract decisions or awards, as well as issuing directions in connection with contract awards, it is fundamentally exercising a judicial function. ( 28 )

45. Finally, it should be recalled that the Court, in assessing the legal status of the national bodies mentioned in Directive 89/665, which are responsible for reviewing the award of public contracts, has already confirmed the status as a ‘court or tribunal’ for the purposes of Article 267 TFEU of a number of other national bodies that are in essence comparable to the referring body in the present case. ( 29 )

46. In the light of all these considerations, there is no reason, in my view, to call into question the Court’s finding in the judgment in Unitron Scandinavia and 3-S that Klagenævnet for Udbud has the status of ‘court or tribunal’ for the purposes of Article 267 TFEU.

B – The question referred

47. In the question which it has referred, the referring court asks whether the principle of equal treatment in Article 10 of Directive 2004/17, in conjunction with Article 51, is to be interpreted as precluding, in a situation such as the one at issue here, a contracting authority from awarding the contract to a tenderer which had not applied for pre-selection and therefore was not pre-selected.

48. The factual context of the question is that a group of two undertakings, constituted in the form of a commercial company and having been pre-selected in a procurement procedure, was dissolved following the insolvency of one of its two members, and the contracting authority allowed the remaining member to continue to take part in the procedure in place of the group and ultimately awarded it the contract, despite the fact that that member as such had not been pre‑selected. This is the ‘situation such as the one at issue here’ to which the referring court refers in its question.

49. The question referred thus essentially concerns whether it is possible, in the light of the principle of equal treatment, for a contracting authority to allow a member of a group of economic operators which has not been pre-selected on its own to take the group’s place in the course of a procurement procedure.

1. Legal framework

50. It should be noted, first of all, that Directive 2004/17 does not contain any specific rule about changes to the composition of a group of economic operators.

51. The only provision of the directive which relates to groups of economic operators is Article 11(2), ( 30 ) but this does not concern changes to them in the course of a procurement procedure. Since the directive does not contain any provision governing such changes, therefore, it must be concluded that rules about them are a matter for the Member States. ( 31 ) That being so, it may be for the national legislature, on a general level, or for the contracting authority in a particular case to lay down rules on the subject. ( 32 )

52. In this connection, it should also be pointed out that, in the judgment in Makedoniko Metro and Michaniki, ( 33 ) the Court held that Directive 93/37 concerning procedures for the award of public works contracts ( 34 ) did not preclude national rules which prohibit a change in the composition of a group of contractors taking part in a procedure for the award of a public works contract which occurs after submission of tenders.

53. In the present case, however, it is clear from the order for reference, first, that Danish legislation does not contain any specific rules about changes in the composition of groups of economic operators and, second, that the contracting authority also did not lay down any specific rules on the subject in the contract notice.

54. That being so, the permissibility of changes in the composition of groups of economic operators in the course of a procurement procedure will be subject to the general principles of law which form part of the EU legal order, including, in particular, the principle of equal treatment and transparency, provided for in Article 10 of Directive 2004/17 and is circumscribed by the need to observe those principles.

2. The principle of equal treatment in public procurement procedures

55. According to settled case-law, the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. ( 35 )

56. The Court has stated on a number of occasions that the principle of equal treatment for tenderers and the duty of contracting authorities to ensure that it is observed lie at the heart of the rules of EU law on public procurement. ( 36 )

57. Under the principle of equal treatment as between tenderers, the aim of which is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure, all tenderers must be afforded equality of opportunity when formulating their tenders, which therefore implies that the tenders of all competitors must be subject to the same conditions. ( 37 ) That principle implies that tenderers must be in a position of equality throughout the procurement procedure, in particular both when they formulate their tenders and when those tenders are being assessed by the contracting authority. ( 38 )

58. It is, admittedly, true that the Court has held that one of the objectives of those public procurement rules is to attain the widest possible opening-up to competition and that it is the concern of EU law to ensure the widest possible participation by tenderers in a call for tenders, ( 39 ) and that the widest possible opening-up to competition is contemplated not only from the point of view of the Union interest in the free movement of goods and services but also the interest of the contracting authority concerned itself, which will thus have greater choice as to the tender offering the best value for money which best meets the needs of the public authority in question. ( 40 )

59. However, in public procurement, account must be taken both of the concern to guarantee effective competition and of respect for the principle of equality between tenderers. Thus, although the Court has stated that the application of the principle of equal treatment to public procurement procedures does not constitute an end in itself, but must be viewed in the light of the aims that it is intended to achieve, ( 41 ) the implementation and the attainment of the objective of promoting the widest possible competition can, however, be pursued only if the economic operators participating in the public contract are able to do so on an equal footing, without any discrimination whatsoever. ( 42 ). Given that the promotion of effective competition forms part of a wider objective of promoting competition which has to be healthy before it can be effective, its pursuit is necessarily circumscribed by the need to comply with the principle of equal treatment between tenderers. ( 43 )

60. In that regard, it should also be noted that, as some of the interveners have pointed out, the principle of equal treatment for tenderers is likely to play a fundamental role before the contract is awarded, when the various tenderers are competing with each other. Once the contract has been awarded, however, interest is focused on the implementation of the contract. In such a context, events such as a change to the group which won the contract do not in principle raise issues of equal treatment between tenderers, but rather issues concerning a possible change to the essential terms of the contract in question ( 44 ) or the jeopardising of its satisfactory performance. ( 45 )

61. It is in the light of those principles that the Court must examine the limits placed by the principle of equal treatment, in a situation such as the present case, on the option of a contracting authority, before the contract is awarded, to allow an economic operator which had not initially been pre-selected to succeed and take the place of another operator, in particular the pre-selected partnership of which it was a member.

3. The possibility of allowing an economic operator which has not been pre‑selected to succeed and take the place of another operator in a procurement procedure

62. The interveners evidently agree that, as a general rule, in invitations to tender with pre-selection, only tenderers which have been pre-selected may submit tenders and may thus be awarded the contract.

63. I share that view, which, as MTHZ rightly pointed out, has an express legal basis in Article 51(3) of Directive 2004/17. In providing that contracting entities ‘shall verify that the tenders submitted by the selected tenderers comply …’, that provision assumes that the pre‑selected operators and the operators submitting tenders are the same. ( 46 ) The principle, therefore, is that the pre-selected economic operator and the economic operator submitting the tender, to which the contract might be awarded, must be legally and substantively the same.

64. In that connection, it should be noted that, contrary to the Commission’s claims at the hearing, in my view there can be no doubt that, in the present case, the group constituted in the form of an I/S and Aarsleff are neither legally nor substantively the same. Although Aarsleff was one of the participants in the I/S, there is no doubt that it is a legal entity which is substantively and legally separate from the group of which it was a member.

65. Having clarified that point, the question arises whether, in the light of the principles referred to in points 55 to 59 of this Opinion, there may be exceptions to the principle that the pre-selected tenderer must correspond to the tenderer submitting the tender, particularly in circumstances such as those in the main proceedings.

66. In my view, that principle cannot be absolute and permit no exceptions. I consider that it is possible to contemplate cases, albeit limited ones, where a change in a tenderer’s identity in the course of the procedure should be allowed, particularly with reference to the need to maintain the widest possible opening-up to competition in a procurement procedure.

67. However, as I pointed out in point 59 of this Opinion, as that need is circumscribed by the need to comply with the principle of equal treatment, a contracting authority may not discriminate between tenderers by claiming, as justification for doing so, that there is a need to open up the procurement procedure as much as possible to competition. Any exceptions to the principle that the pre-selected tenderer must correspond to the tenderer submitting the tender — which, moreover, as exceptions to a general principle, must be interpreted strictly ( 47 ) — is thus circumscribed without qualification by the requirement that the principle of equal treatment between tenderers must be observed.

68. With those principles established, the question arises as to which approach is best capable of reconciling the requirements — which in a case such as the present are apparently conflicting — flowing from strict observance of equality of opportunity between tenderers and the widest possible opening-up to competition?

69. The interveners each propose a different approach.

70. First of all, for the reasons which I have just explained in point 66 of this Opinion, I would tend to rule out the approach apparently advocated by MTHZ in which exceptions should never be made to the principle that the pre-selected operator should correspond to the operator submitting the tender.

71. As for the Commission, it essentially considers that if an operator which has not been pre-selected — particularly, in a situation such as here, the remaining member of a group — meets the tendering specifications, the principle of equal treatment does not prevent the contracting authority from allowing it to continue with the procedure. However, that approach cannot guarantee that the need for equality of opportunity between tenderers will be strictly observed.

72. The fact that a new operator meets the tendering specifications, ( 48 ) although a precondition for ensuring that there is no discrimination between tenderers, does not as such mean that, in being allowed to take part in the tendering process at a later point than the other tenderers, the new operator will not benefit, at the time when it joins in the procedure, from competitive advantages, such as information not available to the other tenderers ( 49 ) when they decided to participate in the procurement procedure. ( 50 )

73. The Danish Government considers that, in a case such as the present, the principle of equal treatment does not prevent a contracting authority from being able to accept changes in a tenderer’s identity between pre-selection and the award of the contract if two conditions are met. First, the remaining part of the tenderer whose identity has changed must itself meet the capability requirements laid down for pre-selection, and second, the change in the tenderer’s identity must have no effect on the list of candidates pre-selected, in the sense that, even if the remaining part of the tenderer had taken part in the pre-selection phase from the beginning in its new form, the pre-selected candidates would still have been the same.

74. This approach is also not satisfactory, in my view. The first condition appears to me to correspond, essentially, to the requirement in the approach proposed by the Commission. As for the second condition, I do not think that requiring that the change of subject should have no effect on the list of pre‑selected candidates is enough to guarantee strict observance of equality of opportunity between tenderers. For the same reasons set out in point 72 of this Opinion, I consider that the fact that no operator was either improperly excluded from the procedure or improperly allowed to take part in it, although this too is a precondition for avoiding discrimination, is not enough to guarantee compliance with the requirement that tenderers should have equality of opportunity.

75. In my view, in the absence of express rules laid down in advance by the legislature or the contracting authority, it is desirable that the contracting body should conduct a specific examination of each individual case, based on all the facts at its disposal, in order to ascertain whether the change of subject at issue results in a situation where the tenderers are not on an equal footing throughout the procurement procedure, particularly, but not only, in formulating their tenders. That examination should aim in particular to ascertain whether the change results in a competitive advantage for the new tenderer, thereby distorting the competitive process.

76. It is possible to envisage various alteration scenarios in the abstract, and these need not be examined in the present context. I would simply point out that, where a change of the subject’s identity is purely formal, rather than substantive, since it only involves a change of form or internal reorganisation, for example, which has no substantial consequences, ( 51 ) it will be unlikely that such a change could create a situation resulting in inequality of opportunity.

77. However, in my view, a situation such as in the main proceedings, where a group constituted in the form of a legal entity separate from the economic operators in that group is dissolved and replaced in the procedure by the remaining member of the group, does not constitute a change of subjective identity which is purely formal, rather than substantive.

78. That being so, I consider that it is for the referring court to establish, on the basis of the facts available to it, whether, in the present case, Banedanmark’s decision resulted in a breach of the principle of equal treatment between the various tenderers taking part in the procedure and, in particular, whether Aarsleff benefited from competitive advantages over the other tenderers at the point when it was allowed to replace the I/S in the procedure.

79. In that regard, on the basis of the information before the Court, I will confine myself to the following considerations.

80. First of all, the referring court underlines that it must be regarded as established that if Aarsleff had submitted an application on its own instead of through the dissolved partnership, it would still have been pre-selected. However, in my opinion, that fact does not mean that, in the present case, there might not have been a breach of the principle of equal treatment. The decisive question here is not (or not only) whether, in theory, Aarsleff might or might not have been pre‑selected on its own, but whether it benefited from different treatment which gave it a competitive advantage at the point when it was allowed to take part in the procedure on its own, without having first been pre-selected.

81. Next, it appears that Aarsleff may have decided to participate in the tender on its own on the basis of information not available to the other tenderers when they decided to take part. ( 52 ) In particular, MTHZ claimed that when Aarsleff, following Pihl’s insolvency and the consequent dissolution of the group created in order to take part in the procedure, was able to take that decision, it knew exactly how many undertakings participating in the procedure had submitted a tender and, even, that the tender submitted by the group of which Aarsleff was a member had been assessed as the second best tender. Furthermore, in addition to all these factors, Aarsleff had been able, after Pihl became insolvent, to take over the contracts of fifty salaried workers from Pihl, including key persons for the completion of the project that was the subject of the tendering process. ( 53 )

82. A situation in which two economic operators decide, before the start of a procurement procedure, to create a group for the sole purpose of taking part in that procedure implies that the two operators, after assessing the opportunities and risks associated with the project, took the commercial decision to participate in the tendering process together and to share the benefits and risks. That being so, it must be examined whether the opportunity given to one of those two operators, at a later stage in the procedure when there are fewer uncertainties about the course that the procedure will follow, to amend that commercial decision by allowing it to take part in the procedure on its own, does not give rise to different treatment in respect of the other tenderers and result in a competitive advantage. It must be ascertained whether that subsequent commercial decision was actually taken on the basis of different information from that available to the other tenderers when they made a decision to take part in the procedure in a particular form or composition, without subsequently having the opportunity to change it.

V – Conclusion

83. In the light of the foregoing considerations, I propose that the Court should answer the question raised by Klagenævnet for Udbud to the following effect: Article 51(3) of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sector is to be interpreted as meaning that, as a general rule, an economic operator pre-selected in a procurement procedure with pre-selection must be legally and substantively the same as the economic operator submitting a tender in the same procedure. In a situation such as that in the main proceedings, where two economic operators have constituted a group in the form of a commercial company in order to take part in a public procurement procedure, and one of the two, after the group has been pre-selected but before the contract is awarded, has been the subject of insolvency proceedings so that the group has been dissolved, Article 10 of Directive 2004/17 is to be interpreted as meaning that it is for the contracting body to conduct a specific examination, based on all the facts at its disposal, to ascertain whether the permission given to the remaining member of the group, which had not been pre‑selected, to continue to take part in the procedure in place of the group results in a situation where the tenderers are not on an equal footing throughout the procedure, particularly in formulating their tenders. That will specifically be the case where the remaining member of the group may have taken decisions in the context of the procurement procedure on the basis of information not available to the other tenderers at the point when they had to take the same decision, and where it had the opportunity, after the procedure was initiated, to acquire key elements for the completion of the project which were not available to it at the point when it should have been pre-selected.

( 1 ) Original language: French.

( 2 ) Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1).

( 3 ) 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).

( 4 ) C‑275/98, EU:C:1999:567. See in particular paragraph 15, which refers to points 17 and 18 of Advocate General Alber’s Opinion in the same case (C‑275/98, EU:C:1999:384)

( 5 ) C‑222/13, EU:C:2014:2265.

( 6 ) See, among others, the judgments in TDC (C‑222/13, EU:C:2014:2265, para. 27) and Bundesdruckerei (C‑549/13, EU:C:2014:2235, para. 21).

( 7 ) See Articles 3(1) and 5(1) of the Law on public procurement.

( 8 ) Under Articles 13, 14 and 16 to 18 of the Law on public procurement, the Klagenævnet for Udbud can, inter alia, annul unlawful decisions or contract awards, issue directions, impose financial penalties, grant compensation and declare contracts invalid.

( 9 ) See the judgment in Consorci Sanitari del Maresme (C‑203/14, EU:C:2015:664, paras 22 and 23 and the case-law cited therein), as well as the comprehensive analysis of the case-law on this issue in Advocate General Jääskinen’s Opinion in the same case (EU:C:2015:445, point 40 et seq.).

( 10 ) See, among others, the judgment in Wilson (C‑506/04, EU:C:2006:587, paragraphs 49 to 53 and the case-law cited therein).

( 11 ) Judgment in TDC (C‑222/13, EU:C:2014:2265, paragraphs 34 to36).

( 12 ) Ibidem (paragraph 37).

( 13 ) Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33), as amended.

( 14 ) See Article 9(1) and (2), first sentence, of the Law on public procurement.

( 15 ) See Article 9(2), second sentence, of the Law on public procurement.

( 16 ) Judgment in TDC (C‑222/13, EU:C:2014:2265, paragraph 35).

( 17 ) See Article 10(4), first sentence, and (5) of the Law on public procurement. Under the first provision, except for the situation described in Article 10(6), one member of the presidency and one expert member are involved in dealing with an individual case. Under the second provision, the decisions of the Klagenævnet for Udbud are taken by a simple majority and the president has the deciding vote if the vote is split.

( 18 ) See Article 10(6) of the Law on public procurement.

( 19 ) See Article 10(4) of the Law on public procurement, under which the President of the Klagenævnet for Udbud may, in special cases, decide to increase the number of members of the presidency and expert members involved in dealing with a case. In such a situation, the number of members of the presidency must then be the same as the number of expert members. It is clear from this provision, which is used in more complex cases or cases involving matters of principle, that in those types of particularly important cases too, the Klagenævnet for Udbud will have an equal number of presidency members and expert members, which means that, since the president has the deciding vote, the presidency members will have a majority say in the adoption of the decision.

( 20 ) Order in Pilato (C‑109/07, EU:C:2008:274, paragraph 24 in fine), and judgment in TDC (C‑222/13, EU:C:2014:2265, paragraph 32).

( 21 ) See the judgment in Syfait and Others (C‑53/03, EU:C:2005:333, paragraph 37).

( 22 ) See the Court’s analysis in the judgments in Schmid (C‑516/99, EU:C:2002:313, paragraphs 37 to 43), Syfait and Others (C‑53/03, EU:C:2005:333, paragraphs 30 to 37) and in the order in Pilato (C‑109/07, EU:C:2008:274, paragraphs 25 to 30). Even in the judgment in TDC (C‑222/13, EU:C:2014:2265) the Court based its analysis on two factors, relating to the internal and external aspects, in deciding that the Teleklagenævnet was not independent (see point 35 of this Opinion).

( 23 ) See, for example, the judgment in HI (C‑92/00, EU:C:2002:379, paragraphs 24 to 28).

( 24 ) See the judgment in Consorci Sanitari del Maresme (C‑203/14, EU:C:2015:664, paragraph 19 and the case-law cited therein).

( 25 ) See, on the other hand, the judgment in Schmid (C‑516/99, EU:C:2002:313, paragraphs 37 to 40).

( 26 ) See the judgment in Consorci Sanitari del Maresme (C‑203/14, EU:C:2015:664, paragraph 19 and the case-law cited therein).

( 27 ) See Article 1(4) of Decree 887 of 11 August 2011 on the Public Procurement Complaints Board. For the relevance of this factor, see the judgment in Dorsch Consult (C‑54/96, EU:C:1997:413, paragraph 35).

( 28 ) Ibidem (paragraph 37).

( 29 ) See the judgment in Consorci Sanitari del Maresme (C‑203/14, EU:C:2015:664, paragraph 26 and the case-law cited therein).

( 30 ) See point 7 of this Opinion. This article is essentially reproduced in Article 37(2) and (3) of Directive 2014/25.

( 31 ) See, by analogy, in relation to Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54), the judgment in Makedoniko Metro and Michaniki (C‑57/01, EU:C:2003:47, paragraph 61).

( 32 ) When drawing up these rules the legislature or the contracting authority will always have to respect the general principles of law. In that regard, see recital 9 of Directive 2004/17 and, even more expressly, recital 2 of Directive 2004/18 of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114). See also recital 2 of the new Directive 2014/25.

( 33 ) Judgment in Makedoniko Metro and Michaniki (C‑57/01, EU:C:2003:47, paragraphs 61 and 63).

( 34 ) Cited in footnote 31 of this Opinion.

( 35 ) See, among others, the judgments in Fabricom (C‑21/03 and C‑34/03, EU:C:2005:127, paragraph 27 and the case-law cited therein) and Manova (C‑336/12, EU:C:2013:647, paragraph 30).

( 36 ) See, to that effect, the judgments in Fabricom (C‑21/03 and C‑34/03, EU:C:2005:127, paragraph 26) and Michaniki (C‑213/07, EU:C:2008:731, paragraph 45 and the case-law cited therein).

( 37 ) See, to that effect, the judgments in Commission v CAS Succhi di Frutta (C‑496/99 P, EU:C:2004:236, paragraph 110) and eVigilo (C‑538/13, EU:C:2015:166, paragraph 33).

( 38 ) See, to that effect, the judgments in SIAC Construction (C‑19/00, EU:C:2001:553, paragraphs 33 and 34), Michaniki (C‑213/07, EU:C:2008:731, paragraph 45 and the case-law cited therein) and the order in Vivaio dei Molini Azienda Agricola Porro Savoldi (C‑502/11, EU:C:2012:613, paragraph 38). Italics added.

( 39 ) See, to that effect, the judgments in Assitur (C‑538/07, EU:C:2009:317, paragraph 26) and CoNISMa (C‑305/08, EU:C:2009:807, paragraph 37).

( 40 ) Judgment in CoNISMa (C‑305/08, EU:C:2009:807, paragraph 37). In negotiated procedures, the need for ‘adequate’ competition is, moreover, expressly highlighted in Article 54(3) of Directive 2004/17, referred to in point 9 of this Opinion.

( 41 ) See, to that effect, the judgment in Manova (C‑336/12, EU:C:2013:647, paragraph 29).

( 42 ) See the Opinion of Advocate General Léger in Fabricom (C‑21/03 and C‑34/03, EU:C:2004:709, paragraph 22) and the Opinion of Advocate General Poiares Maduro in Michaniki (C‑213/07, EU:C:2008:544, paragraph 23).

( 43 ) See, to that effect, the Opinion of Advocate General Poiares Maduro in La Cascina and Others (C‑226/04 and C‑228/04, EU:C:2005:524, paragraph 26).

( 44 ) See the judgment in Pressetext Nachrichtenagentur (C‑454/06, EU:C:2008:351, paragraph 40 et seq.).

( 45 ) In that regard, it should be noted that the new Directive 2014/25 lays down express rules, in Article 89(1)(d)(ii), governing cases where the contractor changes after the contract has been awarded. That provision provides that there is no need to conduct a new procurement procedure in particular where a new contractor replaces the one to which the contracting entity had initially awarded the contract ‘as a consequence of universal or partial succession into the position of the initial contractor, following corporate restructuring, including takeover, merger, acquisition or insolvency, of another economic operator that fulfils the criteria for qualitative selection initially established provided that this does not entail other substantial modifications to the contract and is not aimed at circumventing the application of this Directive’.

( 46 ) In the legislation on negotiated procedures with prior call for competition, Article 47(2) of the new Directive 2014/25 is even clearer on this subject, since it provides that ‘[o]nly those economic operators invited by the contracting entity following its assessment of the information provided may participate in the negotiations’.

( 47 ) See, to that effect, the judgments in Honyvem Informazioni Commerciali (C‑465/04, EU:C:2006:199, paragraph 24) and Pfeiffer and Others (C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 52 and the case-law cited therein).

( 48 ) Moreover, it is not clear whether, under that proposal, the new operator should meet the specifications at the point when the change occurs, or whether it should have met them at the point when all the other tenderers were pre-selected.

( 49 ) For a case where the Court took account of the possible competitive advantages resulting from information which a tenderer could have obtained about the public contract in question, see the judgment in Fabricom (C‑21/03 and C‑34/03, EU:C:2005:127, paragraph 29).

( 50 ) It should also be noted that the Commission itself accepts in its observations that the criterion which it proposes cannot guarantee in every case that there will be no risk of distortion of competition.

( 51 ) See, by analogy, the judgment in Pressetext Nachrichtenagentur (C‑454/06, EU:C:2008:351, paragraphs 43 to 45).

( 52 ) In that regard, see footnote 49 of this Opinion.

( 53 ) In that regard, it is relevant to note that it is clear from the letter sent by Banedanmark to the other tenderers (referred to in point 20 of this Opinion) that it took that fact into account when it decided to allow Aarsleff to take the place of the now dissolved group.