Proceedings brought by Allianz Vorsorgekasse AG.
Date: 2019-04-04
40


In that regard, it is apparent from the order for reference that the contract at issue in the main proceedings has an estimated value of EUR 174000, which is below the threshold of EUR 209000 laid down in Article 4(c) of Directive 2014/24. Therefore, that directive is not applicable to that contract (judgment of 5 April 2017, Borta, C‑298/15, EU:C:2017:266, paragraph 30 and the case-law cited).
42


In that connection, it is apparent from the case-law that where, in regulating situations outside the scope of the EU measure concerned, national legislation seeks to adopt the same solutions as those adopted in that measure, it is clearly in the interest of the European Union that, in order to forestall future differences of interpretation, provisions taken from that measure should be interpreted uniformly (judgment of 5 April 2017, Borta, C‑298/15, EU:C:2017:266, paragraph 33 and the case-law cited).
43


Thus, an interpretation by the Court of provisions of EU law in situations outside its scope is justified where those provisions have been made applicable to such situations by national law in a direct and unconditional way in order to ensure that internal situations and situations governed by EU law are treated in the same way (judgment of 5 April 2017, Borta, C‑298/15, EU:C:2017:266, paragraph 34 and the case-law cited).
49


However, with respect to a contract which, having regard to its value, does not come within the scope of Directive 2014/24, it is appropriate to take account of the fundamental rules and general principles of the Treaty, in particular Articles 49 and 56 TFEU and the principles of equal treatment and non-discrimination and the obligation of transparency which derive from them, provided that the contract at issue has a definite cross-border interest (judgment of 5 April 2017, Borta, C‑298/15, EU:C:2017:266, paragraph 36).
50


In that regard, a contract may display such an interest, having regard in particular to its value, in conjunction with the place where the service is to be carried out or the specific characteristics of the contract (see, to that effect, judgments of 16 April 2015, Enterprise Focused Solutions, C‑278/14, EU:C:2015:228, paragraph 20, and of 19 April 2018, Oftalma Hospital, C‑65/17, EU:C:2018:263, paragraph 40). It is for the referring court to assess whether such an interest exists (see, to that effect, judgment of 10 July 2014, Consorzio Stabile Libor Lavori Pubblici, C‑358/12, EU:C:2014:2063, paragraph 25).
56


The Court has held that the fundamental nature of the right to collective bargaining, such as referred to in Article 28 of the Charter of Fundamental Rights of the European Union, cannot, as such, signify that an employer is automatically excluded from having to respect the rules on public procurement under the Treaty. It cannot be considered as inherent in the very exercise of the right to bargain collectively that the fundamental rules derived from the Treaty and relating to the field of public procurement will be prejudiced (see, to that effect, judgment of 15 July 2010, Commission v Germany, C‑271/08, EU:C:2010:426, paragraphs 41 and 47).
57


Thus, the fact that a contract follows from the application of a collective agreement does not, in itself, have the result of excluding that contract from the scope of the rules applicable to public procurement (see, to that effect, judgment of 15 July 2010, Commission v Germany, C‑271/08, EU:C:2010:426, paragraph 50).
61


The obligation of transparency requires there to be a degree of publicity on the part of the contracting authority sufficient to enable, on the one hand, competition to be opened up and, on the other, the impartiality of the award procedure to be reviewed (judgment of 17 December 2015, UNIS and Beaudout Père et Fils, C‑25/14 and C‑26/14, EU:C:2015:821, paragraph 39).
62


It is therefore important that the rules relating to the award procedure should be applied transparently to all tenderers. The obligation of transparency, which is a corollary of the principle of equality, is designed essentially to ensure that any interested operator may take the decision to tender, in a public procurement procedure, on the basis of all relevant information and to ensure the elimination of any risk of favouritism or arbitrariness on the part of the contracting authority. It implies that all the conditions and detailed rules governing the award procedure must be drawn up in a clear, precise and unequivocal manner so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, second, the contracting authority is able to ascertain whether the bids submitted satisfy the criteria applying to the contract in question (see, to that effect, judgments of 4 February 2016, Ince, C‑336/14, EU:C:2016:72, paragraph 87, and of 22 June 2017, Unibet International, C‑49/16, EU:C:2017:491, paragraph 46).