1 These requests for a preliminary ruling concern the interpretation of Articles 45 and 51 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) and of the principles of the maximum possible competition, of proportionality, of equal treatment and of non-discrimination in matters concerning the procedures for the award of public works contracts, public supply contracts and public service contracts.
2 In Case C‑523/16, the request for a preliminary ruling has been made in proceedings between MA.T.I. SUD SpA and Centostazioni SpA concerning a procedure for the award of a public contract for ‘integrated routine and non-routine maintenance activities and the provision of energy services at the premises of railway station buildings which form part of Centostazioni’s network’.
3 In Case C‑536/16, the request for a preliminary ruling has been made in proceedings between Duemme SGR SpA (‘Duemme’) and the Associazione Cassa Nazionale di Previdenza e Assistenza in favore dei Ragionieri e Periti Commerciali (CNPR) (National Welfare and Assistance Fund for Accountants (CNPR)) in connection with an open procedure for the conclusion of a framework agreement on the management of CNPR’s securities portfolio.
4 Recital 9 of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1) states as follows: ‘In order to guarantee the opening-up to competition of public procurement contracts awarded by entities operating in the water, energy, transport and postal services sectors, it is advisable to draw up provisions for Community coordination of contracts above a certain value. Such coordination is based on the requirements inferable from Articles 14, 28 and 49 of the EC Treaty and from Article 97 of the Euratom Treaty, namely the principle of equal treatment, of which the principle of non-discrimination is no more than a specific expression, the principle of mutual recognition, the principle of proportionality, as well as the principle of transparency. In view of the nature of the sectors affected by such coordination, the latter should, while safeguarding the application of those principles, establish a framework for sound commercial practice and should allow maximum flexibility. …’
5 Article 10 of that directive, headed ‘Principles of awarding contracts’, provides: ‘Contracting entities shall treat economic operators equally and non-discriminatorily and shall act in a transparent way.’
6 Recital 2 of Directive 2004/18 states: ‘The award of contracts concluded in the Member States on behalf of the State, regional or local authorities and other bodies governed by public law …, is subject to the respect of the principles of the Treaty and in particular to the principle of freedom of movement of goods, the principle of freedom of establishment and the principle of freedom to provide services and to the principles deriving therefrom, such as the principle of equal treatment, the principle of non-discrimination, the principle of mutual recognition, the principle of proportionality and the principle of transparency. However, for public contracts above a certain value, it is advisable to draw up provisions of Community coordination of national procedures for the award of such contracts which are based on these principles so as to ensure the effects of them and to guarantee the opening-up of public procurement to competition. These coordinating provisions should therefore be interpreted in accordance with both the aforementioned rules and principles and with other rules of the Treaty.’
7 Article 2 of that directive, also entitled ‘Principles of awarding contracts’, provides: ‘Contracting authorities shall treat economic operators equally and non-discriminatorily and shall act in a transparent way.’
8 Article 45 of the directive provides: ‘1. Any candidate or tenderer who has been the subject of a conviction by final judgment of which the contracting authority is aware for one or more of the reasons listed below shall be excluded from participation in a public contract: (a) participation in a criminal organisation, as defined in Article 2(1) of Council Joint Action 98/733/JHA [of 21 December 1998 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on making it a criminal offence to participate in a criminal organisation in the Member States of the European Union (OJ 1998 L 351, p. 1)]; (b) corruption, as defined in Article 3 of the Council Act of 26 May 1997 [drawing up, on the basis of Article K.3(2)(c) of the Treaty on European Union, the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union (OJ 1997 C 195, p. 1),] and Article 3(1) of Council Joint Action 98/742/JHA [of 22 December 1998 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on corruption in the private sector (OJ 1998 L 358, p. 2)]; (c) fraud within the meaning of Article 1 of the Convention [drawn up on the basis of Article K.3 of the Treaty on European Union] on the protection of the financial interests of the European Communities [(OJ 1995 C 316, p. 49)]; (d) money laundering, as defined in Article 1 of Council Directive 91/308/EEC of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering [(OJ 1991 L 166, p. 77)]. Member States shall specify, in accordance with their national law and having regard for Community law, the implementing conditions for this paragraph. They may provide for a derogation from the requirement referred to in the first subparagraph for overriding requirements in the general interest. For the purposes of this paragraph, the contracting authorities shall, where appropriate, ask candidates or tenderers to supply the documents referred to in paragraph 3 and may, where they have doubts concerning the personal situation of such candidates or tenderers, also apply to the competent authorities to obtain any information they consider necessary on the personal situation of the candidates or tenderers concerned. Where the information concerns a candidate or tenderer established in a State other than that of the contracting authority, the contracting authority may seek the cooperation of the competent authorities. Having regard for the national laws of the Member State where the candidates or tenderers are established, such requests shall relate to legal and/or natural persons, including, if appropriate, company directors and any person having powers of representation, decision or control in respect of the candidate or tenderer. 2. Any economic operator may be excluded from participation in a contract where that economic operator: (a) is bankrupt or is being wound up, where his affairs are being administered by the court, where he has entered into an arrangement with creditors, who has suspended business activities or is in any analogous situation arising from a similar procedure under national laws and regulations; (b) is the subject of proceedings for a declaration of bankruptcy, for an order for compulsory winding up or administration by the court or of an arrangement with creditors or of any other similar proceedings under national laws or regulations; (c) has been convicted by a judgment which has the force of res judicata in accordance with the legal provisions of the country of any offence concerning his professional conduct; (d) has been guilty of grave professional misconduct proved by any means which the contracting authorities can demonstrate; (e) has not fulfilled obligations relating to the payment of social security contributions in accordance with the legal provisions of the country in which he is established or with those of the country of the contracting authority; (f) has not fulfilled obligations relating to the payment of taxes in accordance with the legal provisions of the country in which he is established or with those of the country of the contracting authority; (g) is guilty of serious misrepresentation in supplying the information required under this Section or has not supplied such information. Member States shall specify, in accordance with their national law and having regard for Community law, the implementing conditions for this paragraph. 3. Contracting authorities shall accept the following as sufficient evidence that none of the cases specified in paragraphs 1 or 2(a), (b), (c), (e) or (f) applies to the economic operator: (a) as regards paragraphs 1 and 2(a), (b) and (c), the production of an extract from the “judicial record” or, failing that, of an equivalent document issued by a competent judicial or administrative authority in the country of origin or the country whence that person comes showing that these requirements have been met; (b) as regards paragraph 2(e) and (f), a certificate issued by the competent authority in the Member State concerned. Where the country in question does not issue such documents or certificates, or where these do not cover all the cases specified in paragraphs 1 and 2(a), (b) and (c), they may be replaced by a declaration on oath or, in Member States where there is no provision for declarations on oath, by a solemn declaration made by the person concerned before a competent judicial or administrative authority, a notary or a competent professional or trade body, in the country of origin or in the country whence that person comes. 4. Member States shall designate the authorities and bodies competent to issue the documents, certificates and declarations referred to in paragraph 3 and shall inform the Commission thereof. Such notification shall be without prejudice to data protection law.’
9 Article 51 of the directive provides: ‘The contracting authority may invite economic operators to supplement or clarify the certificates and documents submitted pursuant to Articles 45 to 50.’
10 Article 38(2a) of Decreto legislativo n. 163 - Codice dei contratti pubblici relativi a lavori, servizi e forniture in attuazione delle direttive 2004/17/CE e 2004/18/CE (Legislative Decree No 163 adopting the Code on public works contracts, public service contracts and public supply contracts and transposing Directives 2004/17/EC and 2004/18/EC) of 12 April 2006 (ordinary supplement to GURI No 100 of 2 May 2006) (‘the Public Procurement Code’) provided: ‘Any absence, incompleteness or any other substantial irregularity in the elements and replacement declarations referred to in paragraph 2 shall oblige the tenderer responsible to pay the contracting authority the financial penalty specified in the contract notice, the amount of which cannot be less than 0.1% or more than 1% of the value of the contract and must not exceed EUR 50000, the payment of which shall be guaranteed by the provisional security. In such cases, the contracting authority shall grant the tenderer a period of not more than 10 days in which to submit, complete or rectify the declarations required and shall state their content and the persons obliged to make them. In the case of non-substantial irregularities or the absence or incompleteness of non-essential declarations, the contracting authority shall not require their rectification or impose any penalty. If the period mentioned in the second sentence is exceeded, the tenderer shall be excluded from the tendering procedure. Any amendment to the tender, including following a judicial decision, after the admission, rectification or exclusion of tenders shall not be relevant for the calculation of averages in the procedure or for the determination of the anomaly threshold of tenders.’
11 Article 46 of that code provided that ‘within the limits laid down in Articles 38 to 45, the contracting authorities, should they deem it necessary, are to ask tenderers to supplement or clarify the certificates, documents or declarations submitted’.
12 By a notice published in the Official Journal of the European Union on 8 January 2016, Centostazioni, part of the Ferrovie dello Stato Italiane SpA group, launched an open tendering procedure for the award of a public contract of an estimated value of EUR 170864 780.81 excluding value added tax (VAT), for ‘integrated routine and non-routine maintenance activities and the provision of energy services at the premises of railway station buildings’ forming part of its network for a period of 36 months. This contract was divided into four geographical lots (south, south-central, north-central and north-west, north-central and north-east) to be awarded according to the criterion of the most economically advantageous tender.
13 Point VI.3(w) of the contract notice made it possible for a contracting authority to ask for the rectification, on pain of exclusion from the procedure, of any incomplete or irregular tender, and consequently the payment of a financial penalty of EUR 35000 by the tenderer invited to rectify its tender, in accordance with Article 38(2a) of the Public Procurement Code.
14 Point 1.1(G) of the tender specifications relating to that contract stated that a tender submitted by a temporary association of undertakings not yet incorporated as a legal person had to be accompanied, as part of the requisite administrative documentation, by a special ad hoc declaration containing a commitment in the event that a lot was awarded to it to grant a special collective mandate giving powers of representation to the lead undertaking, which was to be expressly identified (‘the declaration of commitment’). This declaration had to be signed by all the undertakings making up the association, it being noted that, where a tenderer participated in several lots in a different form, it had to submit a declaration of commitment for each lot.
15 MA.T.I. SUD, in its capacity as manager of the temporary joint venture formed with Graded SpA (‘the Association’), submitted an application for lots 1 and 2 of the call for tenders.
16 On 16 March 2016, the procurement committee noted that the declaration of commitment required for the award of lot 2, designating MA.T.I. SUD as the lead undertaking of the Association, lacked the signature of its legal representative. Accordingly, the contracting authority, in accordance with Article 38(2a) of the Public Procurement Code, requested that the Association remedy that irregularity within seven days, on pain of exclusion from the tender procedure, and that it pay a financial penalty of EUR 35000.
17 On 21 March 2016, MA.T.I. SUD forwarded the requested declaration of commitment signed by the legal representatives of the two companies constituting the Association. It also requested the annulment of the financial penalty imposed, on the ground that the declaration in question was ‘neither missing nor incomplete nor vitiated by a substantial irregularity’. It argues, in that regard, that the tender specifications in question required a declaration of commitment for each lot only where the association intended to participate ‘in a different form’. However, the Association, in this instance, stated its intention to participate in the tender for lots 1 and 2 in the same form, with MA.T.I. SUD as the lead undertaking, by submitting a declaration of commitment for lot 1 containing all the elements required.
18 On 30 March 2016, the contracting authority served notice on MA.T.I. SUD to pay the amount of the financial penalty imposed, stating that, otherwise, that amount would be levied on the provisional security.
19 On 7 April 2016, MA.T.I. SUD brought an action before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy) requesting the suspension and annulment of that financial penalty, submitting inter alia that it had not committed any substantial irregularity in the presentation of preliminary documents for participation in the tendering procedure.
20 The referring court questions the compatibility of the mechanism of paid assistance in compiling the documentation established by Article 38(2a) of the Public Procurement Code with EU law, in particular with Article 51 of Directive 2004/18 which provides for the possibility of supplementing or clarifying the certificates and documents accompanying the tenders submitted in the context of a procedure for the award of a public contract, but without imposing any penalties, and with the principles of proportionality, exhaustiveness of the grounds of exclusion, the greatest possible participation in the tendering procedure and the maximum possible competition.
21 It points out that, although in general, the mechanism of assistance in compiling the documentation appears to be compatible with Article 51 of Directive 2004/18, of which it is an iteration, this is not the case for the financial penalty that accompanies it. This particular aspect of the mechanism, moreover, encourages a kind of ‘quest for errors’ on the part of contracting authorities, while also discouraging tenderers from participating in tender procedures, since they risk incurring large fines merely because substantial irregularities are found in their offer, irrespective of whether or not they intend to make use of assistance in compiling the documentation.
22 The referring court points out, in particular, that this penalty is set in advance by the contracting authority, albeit with a minimum range of 0.1% to a maximum of 1.0% and with an absolute maximum of EUR 50000, in a largely discretionary way, it may not be adjusted according to the seriousness of the irregularity committed, and that it is applied automatically to every substantial irregularity found.
23 That court also notes that the introduction of the paid assistance in compiling the documentation, provided for in Article 38(2a) of the Public Procurement Code, aims to ensure the soundness of the requests to participate and the tenders submitted, and thus place the responsibility on tenderers with respect to the submission of documents relating to the call for tenders, and to compensate the contracting authority for the increase of its monitoring activities.
24 It believes, however, that, having regard to the characteristics of the penalty it lays down, that mechanism is not compatible with the principle of proportionality, in so far as its implementation may lead to the payment to the contracting authority of compensation manifestly disproportionate to the additional activities which it may have to assume. A significant economic penalty is all the more disproportionate given that the period within which the documents are to be completed is short (10 days) and does not, therefore, entail an excessive prolongation of the tendering procedure. It is also incompatible with the principle of equal treatment, since a penalty in the same amount may be imposed on a tenderer who has committed a substantial irregularity, but of limited scope, and a tenderer who has committed serious breaches of the requirements of the contract notice. This mechanism also undermines the principle of the maximum possible competition by its deterrent effects on the participation of enterprises, in particular small and medium-sized undertakings, in public procurement procedures.
25 In those circumstances the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Even if the Member States have the ability to require payment for assistance in establishing the documentation with remedial effect (soccorso istruttorio), is Article 38(2a) of [the Public Procurement Code] in the version in force at the time of the tendering procedure in question …, which makes provision for the payment of a “financial penalty”, in so far as that penalty must be fixed by the contracting authority (“not less than 0.1% and not more than 1% of the value of the contract and in any event not more than EUR 50000, the payment of which shall be guaranteed by the provisional security”), contrary to EU law in view of the excessively high amount and the predetermined nature of that penalty, which cannot be adjusted according to the specific situation to be regulated or the seriousness of the irregularity to be remedied? (2) Is Article 38(2a) of [the Public Procurement Code], rather, contrary to EU law, in that that requirement to pay for soccorso istruttorio may be regarded as contrary to the principle of opening up the market to competition as widely as possible, an aim which that mechanism is intended to achieve, so that the tasks of the procurement committee in that regard are to be attributed to it by law in the public interest in achieving that aim?’
26 By a notice published in the Official Journal of the European Union in October 2014, the CNPR launched an open call for tenders with a view to the conclusion of a framework agreement on the management of its securities portfolio, of an estimated value of EUR 20650 000.00 excluding VAT, which it wished to assign to five entities.
27 The contract notice relating to that call for tenders provided, pursuant to Article 38(2a) of the Public Procurement Code, that in the case of missing or incomplete declarations and in all other cases of substantial irregularity, the tenderer would be required to pay a fine of EUR 50000, and that it would have a period of 10 days in which to complete and/or rectify the declaration by the submission of missing documents.
28 The specifications relating to the contract in question stated that the tenderers were required to submit, on pain of exclusion, a declaration on honour that the conditions laid down in Article 38 of the Public Procurement Code had been met.
29 At its first session, the procurement committee concerned opened the official envelopes and discovered that Duemme had failed to attach the aforementioned declarations on honour attesting that its vice-chairperson and its general manager had not been the subject of any conviction by final judgment. It therefore requested that Duemme, pursuant to Article 38(2a) of the Public Procurement Code and Article 7 of that specification, supply the missing declarations and pay the corresponding financial penalty, namely EUR 50000.
30 Duemme provided the missing documents required within the prescribed period, but refused to pay the financial penalty, disputing the principle. The CNPR thereupon sent Duemme a formal notice to pay that fine, informing it that failure to do so would result in a levy on the provisional security.
31 On 9 January 2015, Duemme brought an action before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio) seeking annulment of that financial penalty, on the basis, in particular, of the incompatibility of Article 38(2a) of the Public Procurement Code with Article 51 of Directive 2004/18. At the same time, the tenderer paid EUR 8500 to the contracting authority for the payment of the reduced penalty, which was accepted by the latter as partial payment.
32 In those circumstances the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio) decided to stay the proceedings and to refer for a preliminary ruling two questions which are identical to those referred in Case C‑523/16.
33 By decision of 15 November 2016, the President of the Court decided to join Cases C‑523/16 and C‑536/16 for the purposes of the written procedure, the oral procedure and the judgment.
34 It should be noted, at the outset, that although in both Case C‑523/16 and Case C‑536/16 the questions raised by the referring court relate in a very general way to the interpretation of EU law, without further precision, it has however raised, in its orders for reference, doubts as to the compatibility of Article 38(2a) of the Public Procurement Code, with, on the one hand, Article 51 of Directive 2004/18 and the principles of the maximum possible competition, equal treatment, transparency and proportionality and, on the other hand, the second subparagraph of Article 59(4) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18 (OJ 2014 L 94, p. 65).
35 However, in the light of the dates of publication of the contract notices at issue in the main proceedings, namely in January 2016 (Case C‑523/16) and October 2014 (Case C‑536/16), Directive 2014/24 - the transposition period for which expired, in accordance with Article 90 of the directive, on 18 April 2016 - is not applicable ratione temporis to the dispute in the main proceedings.
36 Those dates are necessarily after the time when the contracting authority selected the type of procedure which it intended to pursue and determine conclusively whether or not there was an obligation to conduct a prior call for competition for the award of the public contract in question. According to the settled case-law of the Court, the applicable directive in the field of public procurement procedures is, as a rule, the one in force when the contracting authority makes such a choice. Conversely, a directive is not applicable if the period prescribed for its transposition expired after that point in time (see, to that effect, judgments of 5 October 2000, Commission v France, C‑337/98, EU:C:2000:543, paragraphs 36, 37, 41 and 42; of 11 July 2013, Commission v Netherlands, C‑576/10, EU:C:2013:510, paragraphs 52 to 54; of 10 July 2014, Impresa Pizzarotti, C‑213/13, EU:C:2014:2067, paragraphs 31 to 33; of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraph 83; and of 27 October 2016, Hörmann Reisen, C‑292/15, EU:C:2016:817, paragraphs 31 and 32).
37 It should also be noted that, in view of the subject matter of the contract at issue in the main proceedings in Case C‑523/16, it is Directive 2004/17 and not Directive 2004/18 which, as the Commission has pointed out, is most likely to apply.
38 However, Directive 2004/17 does not contain any provisions equivalent to those of Article 51 of Directive 2004/18.
39 However, it should be borne in mind, in this regard, that, notwithstanding the absence of any express provision to that effect in Directive 2004/17, the Court has acknowledged that the contracting authority can ask a tenderer to clarify a tender or to correct an obvious clerical error contained therein, subject to the fulfilment of certain requirements, in particular that such an invitation is sent to all tenderers in the same situation, that all tenderers are treated equally and fairly, and that that clarification or correction may not be equated with the submission of a new tender (see, to that effect, judgment of 11 May 2017, Archus and Gama, C‑131/16, EU:C:2017:358, paragraphs 29 to 39 and the case-law cited).
40 Moreover, it is apparent from the observations submitted to the Court that Article 230 of the Public Procurement Code provides that Article 38(2a) of that code applies to the special sectors covered by Directive 2004/17.
41 Finally, even if, as has been recalled in paragraph 34 above, the national court has formally limited its request for a preliminary ruling to the interpretation of Article 51 of Directive 2004/18, that does not preclude the Court from providing it with all the elements of interpretation of EU law which may enable it to rule on the cases before it, whether or not reference is made thereto in the question referred (see, to that effect, judgments of 12 December 1990, SARPP, C‑241/89, EU:C:1990:459, paragraph 8, and of 24 January 2008, Lianakis andOthers, C‑532/06, EU:C:2008:40, paragraph 23).
42 In those circumstances, it being noted that it is for the national court to determine which directive is applicable in Case C‑523/16, the questions referred to the Court in the two requests for a preliminary ruling before it must be understood as covering not only Article 51 of Directive 2004/18 but also, more generally, the principles of public procurement, in particular the principles of equal treatment and of transparency, referred to in both Article 10 of Directive 2004/17 and Article 2 of Directive 2004/18, and the principle of proportionality.
43 By its two questions, which it is appropriate to examine together, the referring court asks, in essence, whether EU law, in particular Article 51 of Directive 2004/18, the principles relating to the award of public contracts, including the principles of equal treatment and transparency referred to in Article 10 of Directive 2004/17 and Article 2 of Directive 2004/18, and the principle of proportionality must be interpreted as precluding national legislation establishing a mechanism of assistance in compiling the documentation, under which the contracting authority may in a procedure for the award of a public contract, invite any tenderer whose tender is vitiated by serious irregularities within the meaning of that regulation to rectify its tender, subject to the payment of a financial penalty, the high amount of which, set in advance by the contracting authority and guaranteed by the provisional security, cannot be adjusted according to the gravity of the irregularity that it remedied.
44 In the first place, it is to be borne in mind, that, according to Article 51 of Directive 2004/18, the contracting authority may, in a procedure for the award of a public contract, invite economic operators to supplement or clarify the certificates and documents submitted pursuant to Articles 45 to 50 of that directive.
45 That provision thus confines itself to laying down the mere possibility for the contracting authority to invite tenderers submitting a tender in a tendering procedure to supplement or clarify the documentation to be provided for the purposes of assessing whether their tender fulfils the conditions of admissibility, demonstrating their economic and financial capacity and their professional and technical knowledge or ability. Neither that provision nor any other provision of Directive 2004/18 contains details on how such a rectification may take place or on the conditions to which it may be subject.
46 It follows that, in the context of the measures transposing Directive 2004/18 that Member States must adopt, they are in principle, as the Advocate General observed in point 57 of his Opinion, not only free to include such a possibility of rectifying tenders in their national law (see, to that effect, judgment of 24 May 2016, MT Højgaard and Züblin, C‑396/14, EU:C:2016:347, paragraph 35), but also to regulate it.
47 Member States may therefore decide to subject that possibility of rectification to the payment of a financial penalty, as provided for in the present case by Article 38(2a) of the Public Procurement Code.
48 However, when they implement the possibility provided for in Article 51 of Directive 2004/18, the Member States must ensure that they do not jeopardise the attainment of the objectives pursued by that directive or undermine the effectiveness of its provisions and other relevant provisions and principles of EU law, particularly the principles of equal treatment and non-discrimination, transparency and proportionality (see to that effect, judgment of 2 June 2016, Falk Pharma, C‑410/14, EU:C:2016:399, paragraph 34).
49 It must also be borne in mind that Article 51 of Directive 2004/18 cannot be interpreted as allowing the contracting authority to accept any rectification of omissions which, as expressly provided for in the contract documentation, had to lead to the exclusion of the tenderer (judgments of 6 November 2014, Cartiera dell’Adda, C‑42/13, EU:C:2014:2345, paragraph 46, and of 10 November 2016, Ciclat, C‑199/15, EU:C:2016:853, paragraph 30).
50 In the second place, although Directive 2004/17 does not contain a provision equivalent to Article 51 of Directive 2004/18, the Court has held that neither of those two directives precluded the possibility that data relating to the tender of a tenderer may be corrected on specific points, particularly when it is clear that such data require mere clarification, or to correct obvious clerical errors, subject, however, to the fulfilment of certain requirements (judgments of 29 March 2012, SAG ELV Slovensko and Others, C‑599/10, EU:C:2012:191, paragraph 40, and of 11 May 2017, Archus and Gama, C‑131/16, EU:C:2017:358, paragraph 29 and the case-law cited).
51 The Court has thus held, inter alia, that a request for clarification cannot make up for the lack of a document or information whose production was required by the contract documents, the contracting authority being required to comply strictly with the criteria which it has itself laid down (see, to that effect, judgments of 10 October 2013, Manova, C‑336/12, EU:C:2013:647, paragraph 40, and of 11 May 2017, Archus and Gama, C‑131/16, EU:C:2017:358, paragraph 33).
52 In addition, such a request may not lead to the submission by a tenderer of what would appear in reality to be a new tender (see judgments of 29 March 2012, SAG ELV Slovensko and Others, C‑599/10, EU:C:2012:191, paragraph 40, and of 11 May 2017, Archus and Gama, C‑131/16, EU:C:2017:358, paragraph 31).
53 In the third place, it must be noted that, in accordance with the principle of proportionality, which constitutes a general principle of EU law and with which the award of contracts concluded in the Member States must comply, as is apparent from recital 9 of Directive 2004/17 and from recital 2 of Directive 2004/18, the measures adopted by the Member States must not go beyond what is necessary in order to achieve that objective (see, to that effect, judgments of 16 December 2008, Michaniki, C‑213/07, EU:C:2008:731, paragraphs 48 and 61; of 19 May 2009, Assitur, C‑538/07, EU:C:2009:317, paragraphs 21 and 23; of 23 December 2009, Serrantoni and Consorzio stabile edili, C‑376/08, EU:C:2009:808, paragraph 33; and of 22 October 2015, Impresa Edilux and SICEF, C‑425/14, EU:C:2015:721, paragraph 29).
54 It is in the light of the foregoing considerations that it is for the referring court, which alone has jurisdiction to find and assess the facts of the disputes in the main proceedings, to examine whether, in the light of the circumstances of the two cases in the main proceedings, the rectifications requested by the contracting authorities concerned the producton of documents whose absence had to lead to the exclusion of the tenderers or whether, on the contrary, they were clearly mere requests for clarification of tenders needing correction or completion on some specific points or a correction of obvious clerical errors.
55 However, it should be noted that, as observed by the Advocate General in points 60 and 61 of his Opinion, the very concept of substantial irregularity, which is not defined in Article 38(2a) of the Public Procurement Code, does not appear to be compatible with Article 51 of Directive 2004/18 or with the requirements to which the clarification of a tender in the context of a public contract falling within the scope of Directive 2004/17 is subject, according to the case-law of the Court referred to in paragraphs 49 to 52 above.
56 It follows that the mechanism of assistance in compiling the documentation provided for in Article 38(2a) of the Public Procurement Code is not applicable if the tender submitted by a tenderer cannot be rectified or clarified within the meaning of the case-law referred to in paragraphs 49 to 52 above, and that, consequently, no penalty can be imposed on the tenderers in such a case.
57 In those circumstances, it is only in the event that the referring court comes to the conclusion that the rectification or clarification requests made by the contracting authorities fulfil the requirements set out in paragraphs 49 to 52 above that it should consider whether the financial penalties in the two cases in the main proceedings under Article 38(2a) of the Public Procurement Code were imposed in compliance with the principle of proportionality.
58 However, to provide the referring court with a useful answer to its questions, the Court has jurisdiction to give guidance based on the documents in the main proceedings and on the written and oral observations which have been submitted to it, enabling it to give judgment (see, to that effect, judgments of 30 March 1993, Thomas and Others, C‑328/91, EU:C:1993:117, paragraph 13; of 14 March 2017, G 4S Secure Solutions, C‑157/15, EU:C:2017:203, paragraph 36; and of 21 September 2017, SMS group, C‑441/16, EU:C:2017:712, paragraph 48).
59 In the present case, it should be noted that, in accordance with Article 38(2a) of the Public Procurement Code, it is for the contracting authority to fix, within the limits of the range defined in this provision, the amount of the financial penalty that may be imposed on the tenderer requested to rectify its tender.
60 The referring court asks the Court to take into account that the financial penalty is set in advance by the contracting authority and that the amount is high and cannot be adjusted according to the gravity of the irregularity rectified. It states, furthermore, that the introduction of such a penalty is justified by the need, first, to place the responsibility on tenderers and to encourage them to prepare their tender carefully and diligently and, secondly, to offset the financial burden that any rectification represents for the contracting authority.
61 In that regard, it should be noted, first, that the setting in advance by the contracting authority of the amount of the penalty in the contract notice does indeed fulfil, as the Commission observed in its written observations, the requirements arising from the principles of equal treatment of tenderers, transparency and legal certainty, in that it is objectively such as to avoid any arbitrary or discriminatory treatment of tenderers by that contracting authority.
62 The fact remains, however, that the automatic application of the penalty thus set in advance, irrespective of the nature of the rectifications made by the errant tenderer and therefore also in the absence of any specific reasons, does not appear to be compatible with the requirements deriving from the principle of proportionality.
63 It should be noted, secondly, that the imposition of a financial penalty is indeed an appropriate means of achieving the legitimate objectives pursued by the Member State related to the need to place responsibility on the tenderers in submitting their tenders and to offset the financial burden that any regularisation represents for the contracting authority.
64 However, as the Advocate General noted in point 74 of his Opinion, the amounts of penalties such as those set out in the contract notices by the contracting authorities in the two cases in the main proceedings appear manifestly disproportionate as such, taking into account the limits placed on the rectification of a tender under Article 51 of Directive 2004/18 and on the clarification of a tender within the framework of Directive 2004/17. That is, in particular, the case of a penalty such as that imposed by the contracting authority in Case C‑523/16, which appears manifestly excessive in the light of the facts complained of, namely the absence of a signature on a declaration of commitment nominating the lead company of the association submitting the tender.
65 Having regard to the foregoing considerations, the questions referred should be answered as follows: - EU law, in particular Article 51 of Directive 2004/18, the principles relating to the award of public contracts, including the principles of equal treatment and transparency referred to in Article 10 of Directive 2004/17 and Article 2 of Directive 2004/18, and the principle of proportionality must be interpreted as not precluding, in principle, national legislation establishing a mechanism of assistance in compiling the documentation, under which the contracting authority may, in a procedure for the award of a public contract, invite any tenderer whose tender is vitiated by serious irregularities within the meaning of that regulation to rectify its tender, subject to the payment of a financial penalty, provided that the amount of that penalty is consistent with the principle of proportionality, which it is for the referring court to determine. - However, those provisions and principles must be interpreted as precluding national legislation establishing a mechanism of assistance in compiling the documentation under which the contracting authority may require a tenderer, on payment of a financial penalty, to remedy the lack of a document which, according to the express provisions in the contract documentation, must result in the exclusion of that tenderer, or to eliminate the irregularities affecting its tender such that any corrections or changes would amount to a new tender.
66 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.