eVigilo Ltd v Priešgaisrinės apsaugos ir gelbėjimo departamentas prie Vidaus reikalų ministerijos.
Date: 2015-03-12
33. 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 (see, to that effect, judgments in Commission  v CAS Succhi di Frutta , C‑496/99 P, EU:C:2004:236, paragraph 110, and Cartiera dell’Adda , C‑42/13, EU:C:2014:2345, paragraph 44).
34. The obligation of transparency, which is its corollary, is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority with respect to certain tenderers or certain tenders (see, to that effect, judgments in Commission  v CAS Succhi di Frutta , EU:C:2004:236, paragraph 111, and Cartiera dell’Adda , EU:C:2014:2345, paragraph 44).
36. In that regard, the fact that the contracting authority appointed experts acting on its mandate in order to evaluate the tenders submitted does not relieve that authority of its responsibility to comply with the requirements of EU law (see, to that effect, judgment in SAG ELV Slovensko and Others , C‑599/10, EU:C:2012:191, paragraph 23).
39. The Court has consistently held that, in the absence of EU rules governing the matter, it is for every Member State to lay down the detailed rules of administrative and judicial procedures for safeguarding rights which individuals derive from EU law. Those detailed procedural rules must, however, be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render impossible in practice or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness) (see judgment in Club Hotel Loutraki and Others , C‑145/08 et C‑149/08, EU:C:2010:247, paragraph 74 and the case-law cited).
40. In particular, the detailed procedural rules governing the remedies intended to protect rights conferred by EU law on candidates and tenderers harmed by decisions of contracting authorities must not compromise the effectiveness of Directive 89/665 (see judgment in Uniplex (UK) , C‑406/08, EU:C:2010:45, paragraph 27 and the case-law cited).
42. Concerning the rules on evidence in that regard, it should be pointed out that, in accordance with Article 2 of Directive 2004/18, the contracting authorities are to treat economic operators equally and non-discriminatorily and to act in a transparent way. It follows that they are assigned an active role in the application of those principles of public procurement.
43. Since that duty relates to the very essence of the public procurement directives (see judgment in Michaniki , C‑213/07, EU:C:2008:731, paragraph 45), it follows that the contracting authority is, at all events, required to determine whether any conflicts of interests exist and to take appropriate measures in order to prevent and detect conflicts of interests and remedy them. It would be incompatible with that active role for the applicant to bear the burden of proving, in the context of the appeal proceedings, that the experts appointed by the contracting authority were in fact biased. Such an outcome would also be contrary to the principle of effectiveness and the requirement of an effective remedy laid down in the third subparagraph of Article 1(1) of Directive 89/665, in light, in particular, of the fact that a tenderer is not, in general, in a position to have access to information and evidence allowing him to prove such bias.
44. Thus, if the unsuccessful tenderer presents objective evidence calling into question the impartiality of one of the contracting authority’s experts, it is for that contracting authority to examine all the relevant circumstances having led to the adoption of the decision relating to the award of the contract in order to prevent and detect conflicts of interests and remedy them, including, where appropriate, requesting the parties to provide certain information and evidence.
50. In that regard, it should be noted that the provisions of Directive 89/665, intended to protect tenderers against arbitrary behaviour on the part of the contracting authority, are designed to reinforce existing arrangements for ensuring the effective application of the EU rules on the award of public contracts, in particular where infringements can still be rectified (judgment in Fastweb , C‑19/13, EU:C:2014:2194, paragraph 34 and the case-law cited). Article 1(1) and (3) of Directive 89/665 requires effective remedies to be available ‘under detailed rules which the Member States may establish’, and in particular, as rapidly as possible, in accordance with the conditions set out in Articles 2 to 2f of that directive.
51. In accordance with the Court’s case-law, the setting of reasonable limitation periods for bringing proceedings must be regarded as satisfying, in principle, the requirement of effectiveness under Directive 89/665, since it is an application of the fundamental principle of legal certainty. The full implementation of the objective sought by Directive 89/665 would be undermined if candidates and tenderers were allowed to invoke, at any stage of the award procedure, infringements of the rules of public procurement, thus obliging the contracting authority to restart the entire procedure in order to correct such infringements (judgments in Universale-Bau and Others , C‑470/99, EU:C:2002:746, paragraphs 75 and 76 and the case-law cited; Lämmerzahl , C‑241/06, EU:C:2007:597, paragraphs 50 and 51; and Commission  v Ireland , C‑456/08, EU:C:2010:46, paragraphs 51 and 52).
52. According to the Court’s case-law, the objective laid down in Article 1(1) of Directive 89/665 of guaranteeing effective procedures for review of infringements of the provisions applicable in the field of public procurement can be realised only if the periods laid down for bringing proceedings start to run only from the date on which the claimant knew, or ought to have known, of the alleged infringement of those provisions (see judgments in Uniplex (UK) , EU:C:2010:45, paragraph 32, and Idrodinamica Spurgo Velox and Others , C‑161/13, EU:C:2014:307, paragraph 37).
54. In paragraph 42 of its judgment in SIAC Construction , C‑19/00, EU:C:2001:553, the Court held that the award criteria must be formulated, in the contract documents or the contract notice, in such a way as to allow all reasonably well-informed and normally diligent tenderers to interpret them in the same way.
61. According to the case-law, as follows from the use of the phrase ‘for example’, that list is non-exhaustive (see judgment in Commission  v Netherlands , C‑368/10, EU:C:2012:284, paragraph 84).