Šiaulių regiono atliekų tvarkymo centras and „Ecoservice projektai“ UAB.
Date: 2018-05-17
21


In that regard, it should be recalled, first of all, that EU law, Directive 2004/18 specifically, does not generally prohibit related undertakings from submitting offers in a public procurement procedure. In addition, according to case-law, in the light of EU interest in ensuring the widest possible participation by tenderers in a tendering procedure, it would run counter to the effective application of EU law to exclude systematically related undertakings from participating in the same public procurement procedure (see, to that effect, judgment of 19 May 2009, Assitur, C‑538/07, EU:C:2009:317, paragraphs 26 and 28).
22


The Court has also pointed out that groups of undertakings can have different forms and objectives, which do not necessarily preclude controlled undertakings from enjoying a certain autonomy in the conduct of their commercial policy and their economic activities, inter alia, in the area of their participation in the award of public contracts. Moreover, relationships between undertakings in the same group may be governed by specific provisions, for example of a contractual nature, such as to guarantee both independence and confidentiality in the drawing-up of tenders to be submitted simultaneously by the undertakings in question in the same tendering procedure (judgment of 19 May 2009, Assitur, C‑538/07, EU:C:2009:317, paragraph 31).
23


Next, with regard to whether, failing any express legislative provision or specific condition in the call for tenders or the tender specifications governing the conditions for the award of a public contract, tenderers are nonetheless obliged to disclose the links between them to the contracting authority, it must be noted that the Court has stated that the principles of transparency and equal treatment which govern all public procurement procedures require the substantive and procedural conditions concerning participation in a contract to be clearly defined in advance and made public, in particular the obligations of tenderers, in order that those tenderers may know exactly the procedural requirements and be sure that the same requirements apply to all candidates (judgment of 2 June 2016, Pizzo, C‑27/15, EU:C:2016:404, paragraph 37 and the case-law cited).
28


It must be borne in mind that Article 101 TFEU does not apply where the agreements or practices it prohibits are carried out by undertakings which constitute an economic unit (see, to that effect, judgments of 4 May 1988, Bodson, 30/87, EU:C:1988:225, paragraph 19, and of 11 April 1989, Saeed Flugreisen and Silver Line Reisebüro, 66/86, EU:C:1989:140, paragraph 35). It is, however, for the referring court to verify whether tenderers A and B constitute an economic unit.
29


Where the companies concerned do not constitute an economic unit, that is to say, where the parent company does not have a determining influence on its subsidiaries, it should be noted that, in all events, the principle of equal treatment under Article 2 of Directive 2004/18 would be infringed if related tenderers were allowed to submit coordinated or concerted tenders, that is to say, tenders that are neither autonomous nor independent, which would be likely to give them unjustified advantages in relation to the other tenderers, without there being any need to examine whether the submission of such tenders constitutes conduct in breach of Article 101 TFEU.
31


As regards the obligations of contracting authorities under Article 2 of Directive 2004/18, the Court has already stated that contracting authorities are assigned an active role in the application of the principles of public procurement set out in that article (see, to that effect, judgment of 12 March 2015, eVigilo, C‑538/13, EU:C:2015:166, paragraph 42).
32


Since that obligation relates to the very essence of the public procurement directives, the Court has ruled that the contracting authority is, at all events, required to determine whether any conflicts of interests concerning the contracting authority’s expert exist and to take appropriate measures in order to prevent and detect conflicts of interests and remedy them (judgment of 12 March 2015, eVigilo, C‑538/13, EU:C:2015:166, paragraph 43).
33


That case-law is, in the light of the findings in paragraph 29 of the present judgment, applicable to situations such as that at issue in the main proceedings where related tenderers are participants in a public procurement procedure. Therefore, a contracting authority that acquaints itself with objective evidence calling into question the autonomous and independent nature of a tender is obliged to examine all the relevant circumstances having led to the submission of the tender concerned in order to prevent and detect the elements capable of vitiating the tendering procedure and remedy them, where appropriate, requesting the parties to provide certain information and evidence (see, by analogy, judgment of 12 March 2015, eVigilo, C‑538/13, EU:C:2015:166, paragraph 44).
36


In those circumstances and in accordance with settled case-law of the Court, failing any 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) (judgment of 12 March 2015, eVigilo, C‑538/13, EU:C:2015:166, paragraph 39 and the case-law cited).
37


As concerns the standard of proof required in order to determine that a tender is neither autonomous nor independent, the principle of effectiveness requires that a breach of the EU rules governing public procurement may be proved not only by direct evidence, but also through indicia, provided that they are objective and consistent and that the related tenderers are in a position to submit evidence in rebuttal (see, by analogy, judgment of 21 January 2016, Eturas and Others, C‑74/14, EU:C:2016:42, paragraph 37).
38


As regards a case such as that in the main proceedings, the finding that the links between tenderers had a bearing on the content of the tenders they submitted during the same procedure suffices, in principle, for those tenders not to be taken into consideration by the contracting authority, as tenders by related undertakings must be submitted completely autonomously and independently. However, a mere finding of a relationship of control between the undertakings concerned, by reason of ownership or the number of voting rights exercisable at ordinary shareholders’ meetings, is not sufficient for the contracting authority to exclude automatically those tenders from the procedure for the award of the contract, without ascertaining whether such a relationship had a specific effect on the independence of those tenders (see, by analogy, judgment of 19 May 2009, Assitur, C‑538/07, EU:C:2009:317, paragraph 32).