Fabricom SA v Belgian State.
Date: 2005-03-03
25. By the first question referred in Cases C-21/03 and C-34/03, the national court is seeking essentially to ascertain whether the provisions of Community law to which it refers preclude a rule, such as that laid down in Article 26 of the Royal Decree of 25 March 1999 amending the Royal Decree of 10 January 1996 and Article 32 of the Royal Decree of 25 March 1999 amending the Royal Decree of 8 January 1996, which states that any person who has been instructed to carry out research, experiments, studies or development in connection with public works, supplies or services is not allowed to participate in or to submit a tender for a public contract for those works, supplies or services where that person is not permitted to prove that, in the circumstances of the case, the experience which he has acquired was not capable of distorting competition (‘the rule at issue in the main proceedings’).
26. In that regard, it must be borne in mind that the duty to observe the principle of equal treatment lies at the very heart of the public procurement directives, which are intended in particular to promote the development of effective competition in the fields to which they apply and which lay down criteria for the award of contracts which are intended to ensure such competition (Case C-513/99 Concordia Bus Finland  [2002] ECR I-7213, paragraph 81 and the case-law cited there).
27. Furthermore, it is settled case-law that the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (Case C-434/02 Arnold André  [2004] ECR I-0000, paragraph 68 and the case-law cited there, and Case C-210/03 Swedish Match  [2004] ECR I-0000, paragraph 70 and the case-law cited there).
28. A person who has been instructed to carry out research, experiments, studies or development in connection with works, supplies or services relating to a public contract (hereinafter ‘a person who has carried out certain preparatory work’) is not necessarily in the same situation as regards participation in the procedure for the award of that contract as a person who has not carried out such works.
29. Indeed, a person who has participated in certain preparatory works may be at an advantage when formulating his tender on account of the information concerning the public contract in question which he has received when carrying out that work. However, all tenderers must have equality of opportunity when formulating their tenders (see, to that effect, Case C-87/94 Commission  v Belgium  [1996] ECR I‑2043, paragraph 54).
30. Furthermore, that person may be in a situation which may give rise to a conflict of interests in the sense that, as the Commission correctly submits, he may, without even intending to do so, where he himself is a tenderer for the public contract in question, influence the conditions of the contract in a manner favourable to himself. Such a situation would be capable of distorting competition between tenderers.
31. Taking account of the situation in which a person who has carried out certain preparatory work may find himself, therefore, it cannot be maintained that the principle of equal treatment requires that that person be treated in the same way as any other tenderer.
32. Fabricom, and also the Austrian and Finnish Governments, submit, essentially, that the difference in treatment established by a rule such as that at issue in the main proceedings and which consists in prohibiting, in all circumstances, a person who has carried out certain preparatory works from participating in a procedure for the award of the public contract in question is not objectively justified. They claim that such a prohibition is disproportionate. Equal treatment for all tenderers is also ensured where there is a procedure whereby an assessment is made, in each specific case, of whether the fact of carrying out certain preparatory works has conferred on the person who carried out that work a competitive advantage over other tenderers. Such a measure is less restrictive for a person who has carried out certain preparatory work.
33. In that regard, it must be held that a rule such as that at issue in the main proceedings does not afford a person who has carried out certain preparatory work any possibility to demonstrate that in his particular case the problems referred to in paragraphs 29 and 30 of the present judgment do not arise.
34. Such a rule goes beyond what is necessary to attain the objective of equal treatment for all tenderers.
35. Indeed, the application of that rule may have the consequence that persons who have carried out certain preparatory works are precluded from the award procedure even though their participation in the procedure entails no risk whatsoever for competition between tenderers.
36. In those circumstances, the answer to the first question referred in Cases C-21/03 and C-34/03 must be that Directive 92/50 and, more particularly, Article 3(2) thereof, Directive 93/36 and, more particularly, Article 5(7) thereof, Directive 93/37 and, more particularly, Article 6(6) thereof, and also Directive 93/38 and, more particularly, Article 4(2) thereof, preclude a rule, such as that laid down in Article 26 of the Royal Decree of 25 March 1999 amending the Royal Decree of 10 January 1996 and Article 32 of the Royal Decree of 25 March 1999 amending the Royal Decree of 8 January 1996, whereby a person who has been instructed to carry out research, experiments, studies or development in connection with public works, supplies or services is not permitted to apply to participate in or to submit a tender for those works, supplies or services and where that person is not given the opportunity to prove that, in the circumstances of the case, the experience which he has acquired was not capable of distorting competition.
Second question referred in Cases C-21/03 and C-34/03
42. In that regard, it should be borne in mind that, since the issue in the case relates to detailed procedural rules governing the remedies intended to protect rights conferred by Community law on candidates and tenderers harmed by decisions of contracting authorities, those rules must not compromise the effectiveness of Directive 89/665 (Case C-470/99 Universale-Bau and Others  [2002] ECR I‑11617, paragraph 72).