SC Enterprise Focused Solutions SRL v Spitalul Județean de Urgență Alba Iulia.
Date: 2015-04-16
15. It must be noted that the strict special procedures prescribed by the EU directives coordinating public procurement procedures apply only to contracts whose value exceeds a threshold expressly laid down in each of those directives. Accordingly, the rules in those directives do not apply to contracts with a value below the threshold set by those directives (judgment in SECAP and Santorso , C‑147/06 and C‑148/06, EU:C:2008:277, paragraph 19 and the case-law cited). Consequently, Article 23(8) of Directive 2004/18, which the Court has been asked to interpret, is not applicable in the context of the dispute in the main proceedings. The value, exclusive of VAT, of the public contract concerned is in the order of EUR 58 600, whereas the relevant threshold for the application of that directive set by Article 7(b) thereof is EUR 200 000.
16. It should be noted, however, that the award of contracts which, in view of their value, do not fall within the scope of that directive is none the less subject to the fundamental rules and the general principles of the FEU Treaty, in particular the principles of equal treatment and of non-discrimination on grounds of nationality and the consequent obligation of transparency, provided that those contracts have a certain cross-border interest in the light of certain objective criteria (see, to that effect, judgment in Ordine degli Ingegneri della Provincia di Lecce and Others , C‑159/11, EU:C:2012:817, paragraph 23 and the case-law cited).
17. Although the referring court does not refer directly to the fundamental rules and general principles of EU law in the order for reference, it is settled case-law that in order to provide a useful answer to a national court which has referred a question to it, the Court may deem it necessary to consider rules of EU law to which the national court has not referred in its request for a preliminary ruling (see, to that effect, judgment in Medipac — Kazantzidis , C‑6/05, EU:C:2007:337, paragraph 34).
18. It should be noted in that regard that the referring court has not established the findings necessary for the Court to ascertain whether, in the case in the main proceedings, there is certain cross-border interest. It must be borne in mind that, as is clear from Article 94 of the Rules of Procedure of the Court of Justice, the Court must be able to find in a request for a preliminary ruling a summary of the facts on which the questions are based and the connection, inter alia, between those facts and the questions. Therefore, the findings necessary to verify the existence of certain cross-border interest, and more generally all the findings to be made by the national courts and on which the applicability of an act of secondary and primary legislation of the European Union depends, must be made before the questions are referred to the Court (see judgment in Azienda sanitaria locale n. 5 ‘Spezzino’ and Others , C‑113/13, EU:C:2014:2440, paragraph 47).
19. However, because of the spirit of cooperation in relations between the national courts and the Court of Justice in the context of the preliminary ruling procedure, the lack of such preliminary findings by the referring court relating to the existence of certain cross-border interest does not necessarily lead to the request being inadmissible if the Court, having regard to the information available from the file, considers that it is in a position to give a useful answer to the referring court. That is the case, in particular, where the order for reference contains sufficient relevant information for the existence of such an interest to be determined. Nevertheless, the Court’s answer is given subject to the proviso that, on the basis of a detailed assessment of all the relevant facts in the case in the main proceedings, certain cross-border interest in the case in the main proceedings is established by the referring court (see, to that effect, judgment in Azienda sanitaria locale n. 5 ‘Spezzino’ and Others , C‑113/13, EU:C:2014:2440, paragraph 48 and the case-law cited).
20. As regards the objective criteria that may indicate the existence of certain cross-border interest, the Court has already held that such criteria may be, in particular, that the contract in question is for a significant amount, in conjunction with the place where the work is to be carried out or the technical characteristics of the contract. The referring court may, in its overall assessment of the existence of certain cross-border interest also take account of the existence of complaints brought by operators situated in other Member States, provided that it is determined that those complaints are real and not fictitious (see judgment in Azienda sanitaria locale n. 5 ‘Spezzino’ and Others , C‑113/13, EU:C:2014:2440, paragraph 49 and the case-law cited).
25. As regards the principles of equal treatment and of non-discrimination and the obligation of transparency, the Member States must be recognised as having a certain amount of discretion for the purpose of adopting measures intended to ensure compliance with those principles, which are binding on contracting authorities in any procedure for the award of a public contract (see judgment in Serrantoni and Consorzio stabile edili , C‑376/08, EU:C:2009:808, paragraphs 31 and 32).
26. The obligation of transparency is in particular intended to preclude any risk of arbitrariness on the part of the contracting authority (see, with regard to Article 2 of Directive 2004/18, judgment in SAG ELV Slovensko and Others , C‑599/10, EU:C:2012:191, paragraph 25 and the case-law cited).
27. That objective would not be achieved if the contracting authority were able to disregard the conditions it had itself imposed. Accordingly, it is prohibited from amending the award criteria during the award procedure. The principles of equal treatment and of non-discrimination and the obligation of transparency have the same effect in that respect with regard to the technical specifications.
28. Consequently, the principle of equal treatment and the obligation of transparency prohibit the contracting authority from rejecting a tender which satisfies the requirements of the invitation to tender on grounds which are not set out in the tender specifications (judgment in Medipac — Kazantzidis , C‑6/05, EU:C:2007:337, paragraph 54).
29. The contracting authority cannot, therefore, after publication of a contract notice, amend the technical specification in respect of an element of the contract in breach of the principles of equal treatment and of non-discrimination and the obligation of transparency. It is irrelevant, in that regard, whether or not the element to which that specification refers is still in production or available on the market.