Lloyd's of London v Agenzia Regionale per la Protezione dell'Ambiente della Calabria.
Date: 2018-02-08
22


It should be noted that, in the procedure established by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it (see, in particular, judgment of 11 March 2008, Jager, C‑420/06, EU:C:2008:152, paragraph 46).
23


In this case, the main proceedings concern a public service contract for insurance, in respect of which it is not specified whether the value reaches the threshold set by Directive 2004/18. 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 nonetheless 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 certain cross-border interest in the light of certain objective criteria (judgment of 16 April 2015, Enterprise Focused Solutions, C‑278/14, EU:C:2015:228, paragraph 16).
25


In this regard, it should be stated at the outset that, while Directive 2004/18 was repealed by Directive 2014/24 with effect from 18 April 2016, it is apparent from settled case-law of the Court that the applicable directive is, as a rule, the one in force when the contracting authority chooses the type of procedure to be followed and decides definitively whether it is necessary for a prior call for competition to be issued for the award of a public contract. Conversely, a directive is not applicable if the period prescribed for its transposition expired after that point in time (see, inter alia, judgment of 14 September 2017, Casertana Costruzioni, C‑223/16, EU:C:2017:685, paragraph 21).
29


In this regard, it must be noted that Article 45 of Directive 2004/18, which specifies the grounds for the exclusion of an economic operator from participation in a tendering procedure, does not provide for a ground for exclusion such as that at issue in the main proceedings, which is intended to prevent any risk of collusion between entities that are members of the same organisation. The grounds for exclusion provided for in that provision relate only to the professional qualities of the persons concerned (see, to that effect, judgment of 16 December 2008, Michaniki, C‑213/07, EU:C:2008:731, paragraphs 42 and 43).
30


However, it is clear from the case-law of the Court that Article 45 of Directive 2004/18 does not preclude the option for Member States to maintain or establish, in addition to those grounds for exclusion, substantive rules intended, in particular, to ensure, with regard to public procurement, observance of the principles of equal treatment of all tenderers and of transparency, which constitute the basis of the EU directives on public procurement procedures, provided that the principle of proportionality is observed (judgment of 19 May 2009, Assitur, C‑538/07, EU:C:2009:317, paragraph 21).
31


It is clear that national legislation such as that at issue in the main proceedings, which is intended to prevent any potential collusion between participants in the same procedure for the award of a public contract, seeks to safeguard the equal treatment of candidates and the transparency of the procedure (see, by analogy, judgment of 19 May 2009, Assitur, C‑538/07, EU:C:2009:317, paragraph 22).
32


In accordance with the principle of proportionality, which constitutes a general principle of EU law, such legislation must not go beyond what is necessary to achieve the intended objective (see, to that effect, judgments of 19 May 2009, Assitur, C‑538/07, EU:C:2009:317, paragraphs 23 and 24; 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).
33


It should be recalled, in this connection, that the EU rules on public procurement were adopted in pursuance of the establishment of a single market, the purpose of which is to ensure freedom of movement and eliminate restrictions on competition (see, to that effect, judgment of 19 May 2009, Assitur, C‑538/07, EU:C:2009:317, paragraph 25).
34


In that context, it is the concern of EU law to ensure the widest possible participation by tenderers in a call for tenders (see, to that effect, judgments of 19 May 2009, Assitur, C‑538/07, EU:C:2009:317, paragraph 26; of 23 December 2009, Serrantoni and Consorzio stabile edili, C‑376/08, EU:C:2009:808, paragraph 40; and of 22 October 2015, Impresa Edilux and SICEF, C‑425/14, EU:C:2015:721, paragraph 36).
35


It thus follows, according to settled case-law of the Court, that the automatic exclusion of candidates or tenderers that are in a relationship of control or of association with other competitors goes beyond that which is necessary to prevent collusive behaviour and, as a result, to ensure the application of the principle of equal treatment and compliance with the obligation of transparency (see, to that effect, judgments of 19 May 2009, Assitur, C‑538/07, EU:C:2009:317, paragraph 28; of 23 December 2009, Serrantoni and Consorzio stabile edili, C‑376/08, EU:C:2009:808, paragraphs 38 and 40; and of 22 October 2015, Impresa Edilux and SICEF, C‑425/14, EU:C:2015:721, paragraphs 36 and 38).
36


Such an automatic exclusion constitutes an irrebuttable presumption of mutual interference in the respective tenders, for the same contract, of undertakings linked by a relationship of control or of association. Accordingly, it precludes the possibility for those candidates or tenderers of showing that their tenders are independent and is therefore contrary to the EU interest in ensuring the widest possible participation by tenderers in a call for tenders (see, to that effect, judgments of 19 May 2009, Assitur, C‑538/07, EU:C:2009:317, paragraphs 29 and 30; of 23 December 2009, Serrantoni and Consorzio stabile edili, C‑376/08, EU:C:2009:808, paragraphs 39 and 40; and of 22 October 2015, Impresa Edilux and SICEF, C‑425/14, EU:C:2015:721, paragraph 36).
37


It should be pointed out in this regard that the Court has already held 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. Relationships between undertakings in the same group may in fact be governed by specific provisions such as to guarantee both independence and confidentiality in the drawing-up of tenders which may 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).
38


Observance of the principle of proportionality therefore requires that the contracting authority be required to examine and assess the facts, in order to determine whether the relationship between two entities has actually influenced the respective content of the tenders submitted in the same tendering procedure, a finding of such influence, in any form, being sufficient for those undertakings to be excluded from the procedure (see, to that effect, judgment of 19 May 2009, Assitur, C‑538/07, EU:C:2009:317, paragraph 32).