MT Højgaard A/S and Züblin A/S v Banedanmark.
Date: 2016-05-24
23


In that regard, it must be recalled that, in accordance with settled case-law, in order to assess whether a body making a reference is a ‘court or tribunal’, which is a question governed by EU law alone, the Court will take account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (judgment of 6 October 2015, Consorci Sanitari del MaresmeC‑203/14, EU:C:2015:664, paragraph 17 and the case-law cited).
26


It must further be observed that, as stated by the Advocate General in point 44 of his Opinion, it is apparent from the file that Klagenævnet for Udbud (the Public Procurement Complaints Board) has no functional link with the Danish Ministry for Business and Growth. The fact that the secretariat of that body is attached to that ministry is not such as to call into question that finding. Moreover, that body carries out its functions in a wholly independent manner, does not occupy a hierarchical or subordinate position and does not take orders or instructions from any source whatsoever (see, to that effect, judgment of 6 October 2015, Consorci Sanitari del Maresme, C‑203/14, EU:C:2015:664, paragraph 19 and case-law cited).
35


In order to answer that question, it must be observed that Directive 2004/17 does not lay down any rules specifically relating to alterations made to the composition of a group of economic operators that has been pre-selected as a tenderer for a public contract, and consequently rules about such a situation are a matter for the Member States (see, to that effect, judgment of 23 January 2003, Makedoniko Metro and Michaniki, C‑57/01, EU:C:2003:47, paragraph 61).
37


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 (see, to that effect, judgment of 16 December 2008, Michaniki, C‑213/07, EU:C:2008:731, paragraph 45 and case-law cited).
38


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 (judgments of 29 April 2004, Commission v CAS Succhi di Frutta, C‑496/99 P, EU:C:2004:236, paragraph 110, and of 12 March 2015, eVigilo, C‑538/13, EU:C:2015:166, paragraph 33).
39


A strict application of the principle of equal treatment of tenderers, as expressed in Article 10 of Directive 2004/17, read together with Article 51 of that directive, would lead to the conclusion that only those economic operators who have been pre-selected can in that capacity submit tenders and be awarded contracts.
40


That approach is based on Article 51(3) of Directive 2004/17, which states that the contracting entities are to ‘verify that the tenders submitted by the selected tenderers comply [with the rules and requirements applicable to tenders] …’, which presupposes, as stated by the Advocate General in point 63 of his Opinion, that the pre-selected economic operators and those who submit tenders are legally and substantively the same.
48


In the light of the foregoing, the answer to the question referred is that the principle of equal treatment of economic operators, stated in Article 10 of Directive 2004/17, read together with Article 51 of that directive, must be interpreted as meaning that a contracting entity is not in breach of that principle where it permits one of two economic operators who formed part of a group of undertakings that had, as such, been invited to submit tenders by that contracting entity, to take the place of that group following the group’s dissolution and to take part, in its own name, in a negotiated procedure for the award of a public contract, provided that it is established, first, that that economic operator by itself meets the requirements laid down by the contracting entity and, second, that the continuation of its participation in that procedure does not mean that other tenderers are placed at a competitive disadvantage.