RTS infra BVBA and Aannemingsbedrijf Norré-Behaegel v Vlaams Gewest.
Date: 2021-01-14
In that regard, it is apparent from settled case-law that the applicable directive is, as a rule, the one in force when the contracting authority chooses the type of procedure to be followed and decides definitively whether a prior call for competition needs to be issued for the award of a public contract. Conversely, the provisions of a directive are not applicable if the period prescribed for its transposition expired after that date (judgment of 27 November 2019, Tedeschi and Consorzio Stabile Istant Service, C‑402/18, EU:C:2019:1023, paragraph 29 and the case-law cited).
In that regard, it should be recalled, in the first place, that, under Article 57(6) of Directive 2014/24, any tenderer which is concerned, in particular, by one of the optional grounds for exclusion referred to in Article 57(4) of that directive may provide evidence to show that the measures which it has taken are sufficient to demonstrate its reliability, it being specified that, if that evidence is deemed sufficient, the economic operator concerned may not be excluded from the procurement procedure for that reason. That provision thus introduces a ‘self-cleaning’ mechanism by conferring on tenderers a right which the Member States must guarantee when transposing that directive, in compliance with the conditions laid down by the directive (see, by analogy, as regards Article 38(9) of Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p. 1), which is equivalent to Article 57(6) of Directive 2014/24, judgment of 11 June 2020, Vert Marine, C‑472/19, EU:C:2020:468, paragraphs 16 and 17).
That interpretation is supported by the objective pursued in Article 57(6) of Directive 2014/24. By providing that an economic operator must be able to provide evidence of the corrective measures taken, that provision seeks to underline the importance attaching to the reliability of economic operators and to ensure an objective assessment of economic operators and to ensure effective competition (see, by analogy, judgment of 11 June 2020, Vert Marine, C‑472/19, EU:C:2020:468, paragraph 22). That objective can be achieved where evidence of corrective measures is provided at any stage of the procedure preceding the adoption of the award decision, the key point being that the economic operator must have the opportunity to put forward and to have examined the measures which, in its view, enable a ground for exclusion concerning it to be remedied.
That interpretation is also supported by the context of Article 57(6) of Directive 2014/24. In that regard, it should be borne in mind that, in accordance with Article 57(7) of that directive, the implementing conditions for that article and, furthermore, Article 57(6) of that directive must be specified by the Member States having regard to EU law. Within the framework of the discretion the latter enjoy when determining the procedural terms and conditions of Article 57(6) of that directive (see, by analogy, judgment of 11 June 2020, Vert Marine, C‑472/19, EU:C:2020:468, paragraph 23), the Member States may provide that evidence of corrective measures must be provided voluntarily by the economic operator concerned at the time of submission of their requests to participate or of their tenders, just as they may also provide that such evidence may be adduced after that economic operator has been formally invited to do so by the contracting authority at a later stage of the procedure.
In the second place, it should be noted that, as is apparent from Article 57(7) of Directive 2014/24, the Member States are required, when determining the implementing conditions for Article 57, to comply with EU law. In particular, they must observe not only the principles for the award of contracts set out in Article 18 of Directive 2014/24, which include, inter alia, the principles of equal treatment, transparency and proportionality, but also the principle of respect for the rights of the defence which, as a fundamental principle of EU law, of which the right to be heard in any procedure is an integral part, is applicable where the authorities are minded to adopt a measure which will adversely affect an individual, such as an exclusion decision adopted in the context of a public procurement procedure (judgment of 20 December 2017, Prequ’ Italia, C‑276/16, EU:C:2017:1010, paragraphs 45 and 46 and the case-law cited).
In those circumstances, it should be recalled at the outset, first, that, in accordance with the principle of transparency, 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 (judgment of 14 December 2016, Connexxion Taxi Services, C‑171/15, EU:C:2016:948, paragraph 40 and the case-law cited). Second, the principle of equal treatment requires tenderers interested in a public contract to be afforded equality of opportunity when formulating their tenders, to be made aware of the exact constraints of the procedure and  to be in fact assured that all tenderers are subject to the same conditions (judgment of 14 December 2016, Connexxion Taxi Services, C‑171/15, EU:C:2016:948, paragraph 39 and the case-law cited).
Lastly, in so far as it does not constitute an unreasonable obstacle to the exercise of the system of corrective measures, the obligation on tenderers to voluntarily provide evidence of corrective measures in their request to participate or in their tender is, since it is exercised under the conditions set out in paragraphs 36 and 37 of the present judgment, consistent with the principle of proportionality, under which the rules laid down by the Member States or contracting authorities in the context of the implementation of the provisions of Directive 2014/24, such as the rules intended to specify the implementing conditions for Article 57 of that directive, must not go beyond what is necessary to achieve the objectives of that directive (see, to that effect, judgment of 30 January 2020, Tim, C‑395/18, EU:C:2020:58, paragraph 45 and the case-law cited).
It is also apparent from paragraphs 34 to 37 of the judgment of 3 October 2019, Delta Antrepriză de Construcţii şi Montaj 93 (C‑267/18, EU:C:2019:826), which relates to national legislation which did not specify whether evidence of corrective measures had to be provided voluntarily by the economic operator or at what stage of the procedure it should be provided, that, although it is for economic operators to inform the contracting authority, upon submission of their request to participate or their tender, of the termination of a previous contract on grounds of serious deficiency, the contracting authority, where it concludes that there is a ground for exclusion arising from such termination or from the withholding of information relating to such termination, must nevertheless give the operators concerned the possibility of providing evidence of the corrective measures taken.
In that regard, it is settled case-law that, whenever the provisions of a directive appear, so far as their subject matter is concerned, to be unconditional and sufficiently precise, they may be relied on before the national courts by individuals against the Member State concerned where that state has failed to transpose the directive into national law within the time limit or has transposed it incorrectly (judgment of 13 February 2019, Human Operator, C‑434/17, EU:C:2019:112, paragraph 38).
The Court has stated that a provision of EU law is, first, unconditional where it sets forth an obligation which is not qualified by any condition, or subject, in its implementation or effects, to the taking of any measure either by the institutions of the European Union or by the Member States and, second, sufficiently precise to be relied on by an individual and applied by a court where it sets out an obligation in unequivocal terms (judgment of 1 July 2010, Gassmayr, C‑194/08, EU:C:2010:386, paragraph 45 and the case-law cited).
Furthermore, the Court has held that even though a directive leaves the Member States a degree of latitude when they adopt rules in order to implement it, a provision of that directive may be regarded as unconditional and precise where it imposes on Member States in unequivocal terms a precise obligation as to the result to be achieved, which is not coupled with any condition regarding application of the rule laid down by it (see, to that effect, judgments of 5 October 2004, Pfeiffer and Others, C‑397/01 à C‑403/01, EU:C:2004:584, paragraphs 104 and105, and of 14 October 2010, Fuß, C‑243/09, EU:C:2010:609, paragraphs 57 and 58).
Irrespective of the specific rules for the application of Article 57(6) of Directive 2014/24, that provision provides in a sufficiently precise and unconditional manner, within the meaning of the case-law cited in paragraph 46 of the present judgment, that the economic operator concerned cannot be excluded from the procurement procedure if it is able to establish, to the satisfaction of the contracting authority, that the corrective measures taken restore its reliability despite the existence of a ground for exclusion concerning that operator. Consequently, Article 57(6) of that directive provides, for the benefit of that economic operator, a minimum level of protection irrespective of the margin of discretion left to Member States in determining the procedural conditions of that provision (see, to that effect, judgments of 14 July 1994, Faccini Dori, C‑91/92, EU:C:1994:292, paragraph 17, and of 5 October 2004, Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 105). That is all the more true given that, as the Advocate General observed, in essence, in point 102 of his Opinion, Article 57(6) of that directive lays down the fundamental elements of the system of corrective measures and the right conferred on the economic operator by indicating the minimum elements to be proved and the assessment criteria to be met.