Proceedings brought by Maria Tirkkonen.
Date: 2018-03-01
21


The referring court asks about the applicability of public procurement law to the dispute in the main proceedings, in so far as it is apparent from the judgment of 2 June 2016, Falk Pharma (C‑410/14, EU:C:2016:399) that the choice of a tender and, thus, of a successful tenderer, is intrinsically linked to the concept of ‘public contract’ within the meaning of Article 1(2)(a) of Directive 2004/18. Nevertheless, in so far as the tenderers had to pass an examination described in the invitation to tender, before finally being admitted to the framework agreement annexed to the invitation to tender, the referring court notes that those requirements could constitute decisive characteristics within the meaning of the judgment of 26 March 2015, Ambisig (C‑601/13, EU:C:2015:204, paragraphs 31 and 32), and, therefore may be characterised as a ‘public contract’ within the meaning of Article 1(2)(a) of Directive 2004/18.
29


It is important to remember, however, that the objective of Directive 2004/18 was to avoid the risk of preference being given to national tenderers or applicants whenever a contract is awarded by the contracting authorities. That risk is closely connected to the exclusivity which will result from the award of the contract concerned to the operator whose tender has been accepted or to the economic operators whose tenders have been accepted, in the case of a framework agreement, constituting the objective of a public procurement procedure (see, to that effect, judgment of 2 June 2016, Falk Pharma, C‑410/14, EU:C:2016:399, paragraphs 35 and 36).
30


In that regard, the Court has already pointed out that the choice of a tender and, thus, of a successful tenderer, is intrinsically linked to the regulation of public contracts by that directive and, consequently, to the concept of ‘public contract’ within the meaning of Article 1(2) of that directive (see, to that effect, judgment of 2 June 2016, Falk Pharma, C‑410/14, EU:C:2016:399, paragraph 38).
31


It follows that the fact that the contracting authority does not designate an economic operator to whom contractual exclusivity is to be awarded means that there is no need to control, through the detailed rules of Directive 2004/18, the action of that contracting authority so as to prevent it from awarding a contract in favour of national operators (see, to that effect, judgment of 2 June 2016, Falk Pharma, C‑410/14, EU:C:2016:399, paragraph 37).
36


Furthermore, it should be recalled that, even if the verification of the tenderers’ suitability and the award of the contract are carried out simultaneously, those two operations must be regarded as two different operations governed by different rules (see, to that effect, judgments of 20 September 1988, Beentjes, 31/87, EU:C:1988:422, paragraphs 15 and 16, and of 24 January 2008, Lianakis and Others, C‑532/06, EU:C:2008:40, paragraph 26).
37


Accordingly, criteria that are not aimed at identifying the tender which is economically the most advantageous, but are instead essentially linked to the evaluation of the tenderers’ suitability to perform the contract in question, cannot be regarded as ‘award criteria’. Criteria relating mainly to the experience, qualifications and means to ensure the proper performance of the contract concerned were considered to relate to the suitability of tenderers to perform that contract and not as ‘award criteria’, even though the contracting authority had classified them as such (see, to that effect, judgment of 24 January 2008, Lianakis and Others, C‑532/06, EU:C:2008:40, paragraphs 30 and 31).
38


Finally, that conclusion is in no way affected by the solution adopted in the judgment of 26 March 2015, Ambisig (C‑601/13, EU:C:2015:204, paragraphs 31 to 34), in which the Court pointed out, in essence, that the skills and experience of the members of the team assigned to performing the public contract may be included as award criteria in the contract notice or in the tender specifications, in so far as the quality of the performance of a contract may depend decisively on the ‘professional merit’ of the people entrusted with its performance, which is made up of their professional experience and background, particularly where the contract covers the provision of services of an intellectual nature and relates to training and advisory services.
39


That assessment must, however, be understood in the light of the circumstances of the case which gave rise to that judgment, that is, in the light of the contracting authority’s choice of the tender which it intended to accept from several admissible tenders. In so doing, unlike the case at issue in the main proceedings, the contracting authority, in the case that gave rise to the judgment of 26 March 2015, Ambisig (C‑601/13, EU:C:2015:204, paragraphs 11, 13 and 28 to 34), made a real comparison of the admissible tenders in order to identify the most economically advantageous tender. In the latter case, the experience of the proposed technical team was an intrinsic feature of the tender and was not merely a criterion for assessing the tenderers’ suitability.