Cartiera dell’Adda SpA v CEM Ambiente SpA.
Date: 2014-11-06
26. It must be borne in mind, first, that, in accordance with settled case-law, Article 267 TFEU gives national courts the widest discretion in referring matters to the Court if they consider that a case pending before them raises questions involving the interpretation of provisions of European Union law, or consideration of their validity, which are necessary for the resolution of the case before them. National courts are, moreover, free to exercise that discretion at whatever stage of the proceedings they consider appropriate (judgment in Bericap Záródástechnikai , C‑180/11, EU:C:2012:717, paragraph 53 and the case-law cited).
27. The Court has thus concluded that a rule of national law pursuant to which courts that are not adjudicating at final instance are bound by legal rulings of a higher court cannot take away from those courts the discretion to refer to the Court questions of interpretation of the point of European Union law to which such rulings relate. The Court has held that a court which is not ruling at final instance must be free, if it considers that a higher court’s legal ruling could lead it to give a judgment contrary to European Union law, to refer to the Court questions which concern it (see judgments in Elchinov , C‑173/09, EU:C:2010:581, paragraphs 25 and 27, and Interedil , C‑396/09, EU:C:2011:671, paragraph 35).
29. With regard, second, to claim that the questions referred are hypothetical, it should be recalled that questions on the interpretation of European Union law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, judgment in Genil 48 and Comercial Hostelera de Grandes Vinos , C‑604/11, EU:C:2013:344, paragraph 26).
31. Third, with regard to the claim that the summary of the facts in the main proceedings is inaccurate and deficient, it is sufficient to note, as is also apparent from paragraph 29 above, that it is for the national court alone to define the factual parameters of the dispute which gave rise to the questions and it is not the task of the Court of Justice to give a ruling on that court’s assessment of the facts (see, to that effect, judgment in van Delft and Others , C‑345/09, EU:C:2010:610, paragraph 114).
42. The Court has already held that the contracting authority must comply strictly with the criteria which it has itself established, so that it is required to exclude from the contract an economic operator who has failed to provide a document or information which he was required to produce under the terms laid down in the contract documentation, on pain of exclusion (see, to that effect, judgment in Manova , C‑336/12, EU:C:2013:647, paragraph 40).
44. First, the principle of equal treatment requires tenderers to be afforded equality of opportunity when formulating their bids, which therefore implies that the bids of all tenderers must be subject to the same conditions. Second, the obligation of transparency is intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. It implies 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 bids submitted satisfy the criteria applying to the contract in question (see, to that effect, judgment in Commission  v CAS Succhi di frutta , C‑496/99 P, EU:C:2004:236, paragraphs 108 to 111).
46. Furthermore, in such circumstances, Article 51 of Directive 2004/18, which provides that the contracting authority may invite operators to supplement or clarify the certificates and documents submitted pursuant to Articles 45 to 50 of the directive, cannot be interpreted as permitting that authority to accept any rectification of omissions which, as expressly provided for in the contract documentation, must result in the exclusion of the bid.
47. In the second place, on the assumption that the contract in question in the proceedings before the national court is a services concession, it should be noted that, if, at the material time, service concession contracts were not governed by any of the directives by which the EU legislature regulated public procurement, the public authorities which concluded such contracts were nevertheless required to comply with the fundamental rules of the FEU Treaty, in particular the principles of equal treatment and transparency (see, to that effect, judgments in Parking Brixen , C‑458/03, EU:C:2005:605, paragraphs 46 to 49, and Wall , C‑91/08, EU:C:2010:182, paragraph 33), where the services concession concerned has a certain cross-border interest in the light, inter alia, of its value and the place where it is carried out (see, to that effect, judgment in Ordine degli Ingegneri della Provincia di Lecce and Others , C‑159/11, EU:C:2012:187, paragraph 23 and the case-law cited).
48. In so far as the contract in question in the main proceedings has such an interest, which is a matter to be verified by the referring court, the principal of equal treatment and the obligation of transparency deriving from that principle require the contracting authority, as is apparent from paragraphs 42 and 44 above, to comply with the criteria which it has itself established, so that it will be required to exclude from the contract an economic operator who has failed to provide a document or information which he was under an obligation to produce under the terms laid down in the contract documentation, on pain of exclusion.