Tim SpA - Direzione e coordinamento Vivendi SA v Consip SpA and Ministero dell'Economia e delle Finanze.
Date: 2020-01-30
26


In so far as the application for the reopening of the oral phase of the proceedings is to be understood as meaning that the Court lacks sufficient information on the Austrian Government’s argument on account of the considerations expressed by the Advocate General in point 52 of his Opinion, it should be borne in mind, first, that the Statute of the Court of Justice of the European Union and the Rules of Procedure of the Court make no provision for interested parties to submit observations in response to the Advocate General’s Opinion (judgment of 22 November 2018, MEO — Serviços de Comunicações e Multimédia, C‑295/17, EU:C:2018:942, paragraph 26 and the case-law cited).
27


Second, under the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require the Advocate General’s involvement. In that regard, the Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based (judgment of 16 September 2015, Société des Produits Nestlé, C‑215/14, EU:C:2015:604, paragraph 32 and the case-law cited).
34


It is apparent from the case-law of the Court of Justice that Article 57(7) of Directive 2014/24 does not provide for uniform application at Union level of the exclusion grounds it mentions, since the Member States may choose not to apply those grounds, or to incorporate them into national law with varying degrees of rigour according to legal, economic or social considerations prevailing at national level. Member States therefore enjoy some discretion in determining the implementing conditions of the optional grounds for exclusion laid down in Article 57(4) of Directive 2014/24 (see, by analogy, judgment of 20 December 2017, Impresa di Costruzioni Ing. E. Mantovani et Guerrato, C‑178/16, EU:C:2017:1000, paragraphs 31 and 32).
36


It should be noted, however, that it is necessary, in interpreting a provision of EU law, to take into account not only the wording of the provision concerned, but also its context and the general scheme of the rules of which it forms part and the objectives pursued thereby (judgment of 5 July 2018, X, C‑213/17, EU:C:2018:538, paragraph 26).
41


That interpretation is supported, secondly, by the objective underlying Article 57(4) of Directive 2014/24. In that connection, it should be borne in mind that the option, or even the obligation, for the contracting authority to exclude an economic operator from participating in a contract award procedure is intended in particular to enable it to assess the integrity and reliability of each of the economic operators. In particular, the optional ground for exclusion mentioned in Article 57(4)(a) of Directive 2014/24, read in conjunction with recital 101 of that directive, is based on an essential element of the relationship between the successful tenderer and the contracting authority, namely the reliability of the successful tenderer, on which the contracting authority’s trust is founded (see, by analogy, judgment of 3 October 2019, Delta Antrepriză de Construcţii şi Montaj 93, C‑267/18, EU:C:2019:826, paragraph 26 and the case-law cited).
45


In that regard, it should be borne in mind, first, that the contracting authorities must, throughout the procedure, observe the principles of procurement set out in Article 18 of Directive 2014/24, which include, inter alia, the principles of equal treatment and proportionality (judgment of 26 September 2019, Vitali, C‑63/18, EU:C:2019:787, paragraph 39 and the case-law cited), and, second, that, in accordance with the principle of proportionality, which is a general principle of EU law, the rules laid down by the Member States or contracting authorities in implementing the provisions of that directive, such as the rules intended to lay down the implementing conditions of Article 57 of that directive, must not go beyond what is necessary to achieve the objectives of that directive (see, to that effect, judgments of 7 July 2016, Ambisig, C‑46/15, EU:C:2016:530, paragraph 40, and of 8 February 2018, Lloyd’s of London, C‑144/17, EU:C:2018:78, paragraph 32 and the case-law cited).
49


The need to comply with the principle of proportionality is also reflected in the first subparagraph of Article 57(6) of Directive 2014/24, according to which any economic operator who, inter alia, is in the situation referred to in Article 57(4)(a) of that directive including, as is apparent from paragraph 43 of the present judgment, by the effect of a failure found in respect of a subcontractor indicated in the tender, may provide evidence to show that the measures it has taken are sufficient to demonstrate its reliability despite the existence of that ground for exclusion. The first subparagraph of Article 57(6) of Directive 2014/24 specifies that, if such evidence is considered sufficient, the economic operator concerned must not be excluded from the contract award procedure. That provision thus introduces a mechanism for corrective measures (self-cleaning) which underlines the importance attaching to the reliability of the economic operator (judgment of 19 June 2019, Meca, C‑41/18, EU:C:2019:507, paragraphs 40 and 41).
53


In those circumstances, national legislation providing for such automatic exclusion of the economic operator who submitted the tender infringes the principle of proportionality by requiring the contracting authorities to proceed automatically to that exclusion on the ground of the failure of a subcontractor and thus exceeding the discretion enjoyed by the Member States pursuant to Article 57(7) of Directive 2014/24, in specifying the implementing conditions for the ground for exclusion set out in Article 57(4)(a) of that directive in compliance with EU law. Such a regulation also deprives the economic operator of the possibility of demonstrating, in accordance with Article 57(6) of Directive 2014/24, its reliability despite the existence of a failure to fulfil obligations on the part of one of its subcontractors (see, by analogy, judgments of 19 May 2009, Assitur, C‑538/07, EU:C:2009:317, paragraph 30; of 13 December 2012, Forposta and ABC Direct Contact, C‑465/11, EU:C:2012:801, paragraphs 34 and 35; and of 26 September 2019, Vitali, C‑63/18, EU:C:2019:787, paragraphs 40 and 41).
54


Consequently, an automatic exclusion of the economic operator who submitted the tender, provided for by the national legislation, in so far as it deprives, first, that operator of the possibility of providing detailed information about the situation and, secondly, the contracting authority of any discretion in that regard, cannot be regarded as being compatible with Article 57(4) and (6) of Directive 2014/24 and the principle of proportionality (see, by analogy, judgment of 26 September 2019, Vitali, C‑63/18, EU:C:2019:787, paragraphs 42 and 43).