MA.T.I. SUD SpA v Centostazioni SpA and Duemme SGR SpA v Associazione Cassa Nazionale di Previdenza e Assistenza in favore dei Ragionieri e Periti Commerciali (CNPR).
Date: 2018-02-28
36


Those dates are necessarily after the time when the contracting authority selected the type of procedure which it intended to pursue and determine conclusively whether or not there was an obligation to conduct a prior call for competition for the award of the public contract in question. According to the settled case-law of the Court, the applicable directive in the field of public procurement procedures is, as a rule, the one in force when the contracting authority makes such a choice. Conversely, a directive is not applicable if the period prescribed for its transposition expired after that point in time (see, to that effect, judgments of 5 October 2000, Commission v France, C‑337/98, EU:C:2000:543, paragraphs 36, 37, 41 and 42; of 11 July 2013, Commission v Netherlands, C‑576/10, EU:C:2013:510, paragraphs 52 to 54; of 10 July 2014, Impresa Pizzarotti, C‑213/13, EU:C:2014:2067, paragraphs 31 to 33; of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraph 83; and of 27 October 2016, Hörmann Reisen, C‑292/15, EU:C:2016:817, paragraphs 31 and 32).
39


However, it should be borne in mind, in this regard, that, notwithstanding the absence of any express provision to that effect in Directive 2004/17, the Court has acknowledged that the contracting authority can ask a tenderer to clarify a tender or to correct an obvious clerical error contained therein, subject to the fulfilment of certain requirements, in particular that such an invitation is sent to all tenderers in the same situation, that all tenderers are treated equally and fairly, and that that clarification or correction may not be equated with the submission of a new tender (see, to that effect, judgment of 11 May 2017, Archus and Gama, C‑131/16, EU:C:2017:358, paragraphs 29 to 39 and the case-law cited).
41


Finally, even if, as has been recalled in paragraph 34 above, the national court has formally limited its request for a preliminary ruling to the interpretation of Article 51 of Directive 2004/18, that does not preclude the Court from providing it with all the elements of interpretation of EU law which may enable it to rule on the cases before it, whether or not reference is made thereto in the question referred (see, to that effect, judgments of 12 December 1990, SARPP, C‑241/89, EU:C:1990:459, paragraph 8, and of 24 January 2008, Lianakis andOthers, C‑532/06, EU:C:2008:40, paragraph 23).
46


It follows that, in the context of the measures transposing Directive 2004/18 that Member States must adopt, they are in principle, as the Advocate General observed in point 57 of his Opinion, not only free to include such a possibility of rectifying tenders in their national law (see, to that effect, judgment of 24 May 2016, MT Højgaard and Züblin, C‑396/14, EU:C:2016:347, paragraph 35), but also to regulate it.
48


However, when they implement the possibility provided for in Article 51 of Directive 2004/18, the Member States must ensure that they do not jeopardise the attainment of the objectives pursued by that directive or undermine the effectiveness of its provisions and other relevant provisions and principles of EU law, particularly the principles of equal treatment and non-discrimination, transparency and proportionality (see to that effect, judgment of 2 June 2016, Falk Pharma, C‑410/14, EU:C:2016:399, paragraph 34).
49


It must also be borne in mind that Article 51 of Directive 2004/18 cannot be interpreted as allowing the contracting authority to accept any rectification of omissions which, as expressly provided for in the contract documentation, had to lead to the exclusion of the tenderer (judgments of 6 November 2014, Cartiera dell’Adda, C‑42/13, EU:C:2014:2345, paragraph 46, and of 10 November 2016, Ciclat, C‑199/15, EU:C:2016:853, paragraph 30).
50


In the second place, although Directive 2004/17 does not contain a provision equivalent to Article 51 of Directive 2004/18, the Court has held that neither of those two directives precluded the possibility that data relating to the tender of a tenderer may be corrected on specific points, particularly when it is clear that such data require mere clarification, or to correct obvious clerical errors, subject, however, to the fulfilment of certain requirements (judgments of 29 March 2012, SAG ELV Slovensko and Others, C‑599/10, EU:C:2012:191, paragraph 40, and of 11 May 2017, Archus and Gama, C‑131/16, EU:C:2017:358, paragraph 29 and the case-law cited).
51


The Court has thus held, inter alia, that a request for clarification cannot make up for the lack of a document or information whose production was required by the contract documents, the contracting authority being required to comply strictly with the criteria which it has itself laid down (see, to that effect, judgments of 10 October 2013, Manova, C‑336/12, EU:C:2013:647, paragraph 40, and of 11 May 2017, Archus and Gama, C‑131/16, EU:C:2017:358, paragraph 33).
52


In addition, such a request may not lead to the submission by a tenderer of what would appear in reality to be a new tender (see judgments of 29 March 2012, SAG ELV Slovensko and Others, C‑599/10, EU:C:2012:191, paragraph 40, and of 11 May 2017, Archus and Gama, C‑131/16, EU:C:2017:358, paragraph 31).
53


In the third place, it must be noted that, in accordance with the principle of proportionality, which constitutes a general principle of EU law and with which the award of contracts concluded in the Member States must comply, as is apparent from recital 9 of Directive 2004/17 and from recital 2 of Directive 2004/18, the measures adopted by the Member States must not go beyond what is necessary in order to achieve that objective (see, to that effect, judgments of 16 December 2008, Michaniki, C‑213/07, EU:C:2008:731, paragraphs 48 and 61; of 19 May 2009, Assitur, C‑538/07, EU:C:2009:317, paragraphs 21 and 23; of 23 December 2009, Serrantoni and Consorzio stabile edili, C‑376/08, EU:C:2009:808, paragraph 33; and of 22 October 2015, Impresa Edilux and SICEF, C‑425/14, EU:C:2015:721, paragraph 29).
58


However, to provide the referring court with a useful answer to its questions, the Court has jurisdiction to give guidance based on the documents in the main proceedings and on the written and oral observations which have been submitted to it, enabling it to give judgment (see, to that effect, judgments of 30 March 1993, Thomas and Others, C‑328/91, EU:C:1993:117, paragraph 13; of 14 March 2017, G 4S Secure Solutions, C‑157/15, EU:C:2017:203, paragraph 36; and of 21 September 2017, SMS group, C‑441/16, EU:C:2017:712, paragraph 48).