Telecom Italia SpA v Ministero dello Sviluppo Economico and Infrastrutture e telecomunicazioni per l'Italia SpA (Infratel Italia SpA).
Date: 2019-07-11
22


In this regard, it must be borne in mind that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions referred concern the interpretation of EU law, the Court is in principle bound to give a ruling. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 10 July 2018, Jehovan todistajat, C‑25/17, EU:C:2018:551, paragraph 31 and the case-law cited).
32


In that regard, it must be recalled that the principle of equal treatment and the duty of transparency mean, in particular, that tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being assessed by the contracting authority, and constitute the basis of the EU rules on procedures for the award of public contracts (judgment of 24 May 2016, MT Højgaard and Züblin, C‑396/14, EU:C:2016:347, paragraph 37 and the case-law cited).
33


The principle of equal treatment of tenderers, the aim of which is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure, requires that all tenderers must be afforded equality of opportunity when formulating their tenders, and therefore implies that the tenders of all competitors must be subject to the same conditions. A strict application of the principle of equal treatment of tenderers, in the context of a negotiated procedure, would lead to the conclusion that only those economic operators who have been preselected can in that capacity submit tenders and be awarded contracts (see, to that effect, judgment of 24 May 2016, MT Højgaard and Züblin, C‑396/14, EU:C:2016:347, paragraphs 38 and 39).
34


That approach is based on Article 28(2) of Directive 2014/24, under which ‘only those economic operators invited to do so by the contracting authority following its assessment of the information provided may submit a tender’; this presupposes that the preselected economic operators and those submitting tenders are legally and substantively the same (see, by analogy, judgment of 24 May 2016, MT Højgaard and Züblin, C‑396/14, EU:C:2016:347, paragraph 40).
35


However, the Court has also held that, in a negotiated procedure, where a group of undertakings preselected as such, incorporating two economic operators, had been dissolved, one of those operators could take the place of the group and continue the procedure in its own name, provided that it was established that that economic operator by itself met the requirements initially laid down by the contracting entity, and that the continuation of its participation in that procedure did not mean that other tenderers were placed at a competitive disadvantage (see, to that effect, judgment of 24 May 2016, MT Højgaard and Züblin, C‑396/14, EU:C:2016:347, paragraph 48 and operative part).
41


Consequently, it is necessary to determine whether, notwithstanding that change in substantive identity, the principle of equal treatment can be held not to have been infringed, in the light of the criteria referred to in the judgment of 24 May 2016, MT Højgaard and Züblin (C‑396/14, EU:C:2016:347, paragraph 48), cited in paragraph 36 of the present judgment.
51


It should be added that, although the principle of equal treatment is not undermined by the mere fact of a merger between two preselected tenderers, the possibility cannot be ruled out that sensitive information relating to the procurement procedure may have been exchanged by the parties to the merger, prior to its completion. Such a situation could give the acquiring operator unjustified advantages, at the tendering stage, in relation to the other tenderers, which would inevitably place those other tenderers at a competitive disadvantage (see, by analogy, judgment of 17 May 2018Specializuotas transportas, C‑531/16, EU:C:2018:324, paragraph 29).
52


In principle, such circumstances would be sufficient to prevent the acquiring operator’s tender being considered by the contracting authority (see, by analogy, judgment of 17 May 2018, Specializuotas transportas, C‑531/16, EU:C:2018:324, paragraph 31).