Connexxion Taxi Services BV v Staat der Nederlanden (Ministerie van Volksgezondheid, Welzijn en Sport) and Others.
Date: 2016-12-14
24


Therefore, the obligation to carry out an assessment of proportionality may be regarded as making the criteria for the application of the optional grounds of exclusion more flexible, as provided for by national law, within the meaning of the judgments of 9 February 2006, La Cascina and Others (C‑226/04 and C‑228/04, EU:C:2006:94, paragraph 21), and of 10 July 2014, Consorzio Stabile Libor Lavori Pubblici (C‑358/12, EU:C:2014:2063, paragraphs 35 and 36). In accordance with Article 45(2), second subparagraph, of Directive 2004/18 such flexibility, provided for by national law, should comply with EU law and, in particular, with the principles of equal treatment and transparency. In the case in the main proceedings, the Ministry, as the contracting authority, after establishing that the tenderer had been guilty of grave professional misconduct, assessed, in accordance with the principle of proportionality, whether the professional honesty and reliability of the Tender Group could be guaranteed in the performance of the contract concerned. The Tender Group has taken measures to that effect.
28


According to settled case-law, as regards public contracts falling within the scope of Directive 2004/18, Article 45(2) thereof leaves the application of the seven grounds for excluding candidates from participation in a contract, relating to their professional honesty, solvency and reliability, to the determination of the Member States, as evidenced by the phrase ‘may be excluded from participation in a contract’, which appears at the beginning of that provision (see, as far as concerns Article 29 of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1), judgment of 9 February 2006, La Cascina and Others, C‑226/04 and C‑228/04, EU:C:2006:94, paragraph 21). Furthermore, pursuant to Article 45(2), second subparagraph, the Member States must specify the conditions for applying paragraph 2, in accordance with their national law and in compliance with EU law (judgment of 10 July 2014, Consorzio Stabile Libor Lavori Pubblici, C‑358/12, EU:C:2014:2063, paragraph 35).
29


Therefore, Article 45(2) of Directive 2004/18 does not provide for uniform application at EU level of the grounds of exclusion it mentions, since the Member States may choose not to apply those grounds of exclusion at all or to incorporate them into national law with varying degrees of rigour according to legal, economic or social considerations prevailing at national level. In that context, the Member States have the power to make the criteria laid down in Article 45(2) less onerous or more flexible (judgment of 10 July 2014, Consorzio Stabile Libor Lavori Pubblici, paragraph 36 and the case-law cited).
38


As far as concerns whether, pursuant to the relevant national legislation, the contracting authority must or may assess, after the submission of the tenders or even after the selection of tenderers, whether an exclusion made in accordance with an exclusion clause on the ground of grave professional misconduct complies with the principle of proportionality, even though, according to the conditions of the call for tenders for that contract, a tenderer who has been guilty of grave professional misconduct must necessarily be excluded without taking account of the proportionality of that sanction, it must be recalled that the contracting authority must comply strictly with the criteria which it has itself laid down (see, to that effect, judgment of 10 October 2013, Manova, C‑336/12, EU:C:2013:647, paragraph 40 and the case-law cited) in the light, in particular, of Annex VII A, paragraph 17, to Directive 2004/18.
39


Furthermore, the principle of equal treatment requires tenderers to be afforded equality of opportunity when formulating their tenders, which therefore implies that the bids of all tenderers must be subject to the same conditions (see, to that effect, judgment of 2 June 2016, Pizzo, C‑27/15, EU:C:2016:404, paragraph 36).
40


Likewise, the obligation of transparency requires that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or specifications 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 tenders submitted satisfy the criteria applying to the contract in question (see, to that effect, judgment of 2 June 2016, Pizzo, C‑27/15, EU:C:2016:404, paragraph 36 and the case-law cited).