Azienda Ospedaliero-Universitaria di Careggi-Firenze v Data Medical Service srl.
Date: 2014-12-18
33. Next, it should be noted that the possibility for public entities to participate in tendering procedures for public contracts, in parallel to the participation of private economic entities, is already evident from the wording of Article 1(c) of Directive 92/50, according to which ‘service provider’ is to mean any natural or legal person, including a public body, which offers services. Furthermore, such a possibility to participate was recognised by the Court in the judgment in Teckal , C‑107/98, EU:C:1999:562, paragraph 51, and was repeated in the subsequent judgments in ARGE , EU:C:2000:677, paragraph 40; CoNISMa , EU:C:2009:807, paragraph 38; and Ordine degli Ingegneri della Provincia di Lecce and Others , EU:C:2012:817, paragraph 26.
34. The Court has also pointed out in this regard that one of the objectives of the EU rules on public procurement is to attain the widest possible opening-up to competition (see, to that effect, the judgment in Bayerischer Rundfunk and Others , C‑337/06, EU:C:2007:786, paragraph 39), an opening-up which is also in the interest of the contracting authority concerned itself, which will thus have greater choice as to the tender which is most advantageous and most suited to the needs of the public authority in question. The effect of a restrictive interpretation of the concept of ‘economic operator’ would be that contracts concluded between contracting authorities and entities which are primarily non-profit-making would not be regarded as ‘public contracts’, could be awarded by mutual agreement and would not be covered by EU rules on equal treatment and transparency, something which would be at odds with the objective of those rules (see, to that effect, the judgment in CoNISMa , EU:C:2009:807, paragraphs 37 and 43).
35. The Court has therefore held that it follows from both the EU rules and the case-law that any person or entity which, in the light of the conditions laid down in a contract notice, believes that it is capable of carrying out the contract is eligible to submit a tender or to put itself forward as a candidate, regardless of whether it is governed by public law or private law, whether it is active as a matter of course on the market or only on an occasional basis (see, to that effect, the judgment in CoNISMa , EU:C:2009:807, paragraph 42).
36. Moreover, as is apparent from the wording of Article 26(2) of Directive 92/50, the Member States do, admittedly, have a discretion as to whether or not to allow certain categories of economic operators to provide certain services. They can regulate the activities of entities, such as universities and research institutes, which are non-profit-making and whose primary object is teaching and research. They can, inter alia, determine whether or not such entities are authorised to operate on the market, according to whether the activity in question is compatible with their objectives as an institution and those laid down in their statutes. However, if and to the extent that such entities are entitled to offer certain services in return for remuneration on the market, even occasionally, the Member States may not prevent those entities from participating in tendering procedures for the award of public contracts relating to the provision of those services. Such a prohibition would not be compatible with Article 1(a) and (c) of Directive 92/50 (see, in relation to the corresponding provisions of Directive 2004/18, the judgments in CoNISMa , EU:C:2009:807, paragraphs 47 to 49, and Ordine degli Ingegneri della Provincia di Lecce and Others , EU:C:2012:817, paragraph 27).
43. However, the provisions of Directive 92/50 and the Court’s case-law do not allow, a priori and without further consideration, a tenderer to be excluded from participation in a procedure for the award of a public contract on the sole ground that, as a result of public subsidies which it receives, it is able to submit tenders at prices which are significantly lower than those of unsubsidised tenderers (see, to that effect, the judgments in ARGE , EU:C:2000:677, paragraphs 25 to 27, and CoNISMa , EU:C:2009:807, paragraphs 34 and 40).
44. In certain specific circumstances, however, the contracting authorities are required, or at the very least permitted, to take into account the existence of subsidies, and in particular aid incompatible with the Treaty, in order, where appropriate, to exclude tenderers in receipt of such aid (see, to that effect, the judgments in ARGE , EU:C:2000:677, paragraph 29, and CoNISMa , EU:C:2009:807, paragraph 33).
47. First, it follows from the wording of that provision that the contracting authority is obliged, when examining tenders which are abnormally low, to request the tenderer to furnish the necessary explanations to prove that those tenders are genuine (see, to that effect, the judgment in SAG ELV Slovensko and Others , C‑599/10, EU:C:2012:191, paragraph 28).
48. Accordingly, the existence of a proper exchange of views, at an appropriate time in the procedure for examining tenders, between the contracting authority and the tenderer, to enable the latter to demonstrate that its tender is genuine, constitutes a fundamental requirement of Directive 92/50, in order to prevent the contracting authority from acting in an arbitrary manner and to ensure healthy competition between undertakings (see, to that effect, the judgment in SAG ELV Slovensko and Others , EU:C:2012:191, paragraph 29).
49. Secondly, it should be noted that Article 37 of Directive 92/50 does not contain a definition of the concept of an ‘abnormally low tender’. It is thus for the Member States and, in particular, the contracting authorities to determine the method of calculating an anomaly threshold constituting an ‘abnormally low tender’ within the meaning of that article (see, to that effect, the judgment in Lombardini and Mantovani , C‑285/99 and C‑286/99, EU:C:2001:640, paragraph 67).
50. That being the case, the EU legislature made clear in that provision that the abnormally low character of a tender must be assessed ‘in relation to the service to be provided’. Thus, the contracting authority may, in the course of its examination of the abnormally low character of a tender, take into consideration, for the purpose of ensuring healthy competition, not only the situations set out in the second paragraph of Article 37 of Directive 92/50 but also all the factors that are relevant in the light of the service at issue (see, to that effect, the judgment in SAG ELV Slovensko and Others , EU:C:2012:191, paragraphs 29 and 30).