1. This request for a preliminary ruling concerns the interpretation of Articles 41(1), 43 and 45 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).
2. The request has been made in proceedings between Croce Amica One Italia Srl (‘Croce Amica One’) and the Azienda Regionale Emergenza Urgenza (AREU) (Regional Emergency services Agency) concerning the lawfulness of the latter’s decision, in its capacity as contracting authority, not to proceed with the definitive award of the contract in question to Croce Amica One, to which the contract had been provisionally awarded, and to withdraw the invitation to tender. Legal framework EU law
3. Article 41 of Directive 2004/18, headed ‘Informing candidates and tenderers’, provides in paragraph 1 thereof as follows: ‘Contracting authorities shall as soon as possible inform candidates and tenderers of decisions reached concerning … the award of the contract …, including the grounds for any decision not to … award a contract for which there has been a call for competition …; that information shall be given in writing upon request to the contracting authorities.’
4. Article 43 of Directive 2004/18, headed ‘Content of reports’, is worded as follows: ‘For every contract, … the contracting authorities shall draw up a written report which shall include at least the following: … (h) if necessary, the reasons why the contracting authority has decided not to award a contract … …’
5. Article 45 of Directive 2004/18, headed ‘Personal situation of the candidate or tenderer’, provides as follows: ‘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 [(OJ 1998 L 351, p.1)]; (b) corruption, as defined in Article 3 of the Council Act of 26 May 1997 [(OJ 1997 C 195, p. 1)] and Article 3(1) of Council Joint Action 98/742/JHA [(OJ 1998 L 358, p. 2)] respectively; (c) fraud within the meaning of Article 1 of the Convention relating to the protection of the financial interests of the European Communities [(OJ 1995 C 316, p. 48)]; (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), as amended by Directive 2001/97/EC of the European Parliament and of the Council of 4 December 2001 (OJ 2001 L 344, p. 76)]. Member States shall specify, in accordance with their national law and having regard for Community law, the implementing conditions for this paragraph. … 2. Any economic operator may be excluded from participation in a contract where that economic operator: … (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 proven by any means which the contracting authorities can demonstrate; … (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. …’
6. Article 1 of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33), as amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 (OJ 2007 L 335, p. 31) (‘Directive 89/665’), which is headed ‘Scope and availability of review procedures’, provides in the third subparagraph of paragraph 1 thereof as follows: ‘Member States shall take the measures necessary to ensure that, as regards contracts falling within the scope of Directive 2004/18/EC, decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in Articles 2 to 2f of this Directive, on the grounds that such decisions have infringed Community law in the field of public procurement or national rules transposing that law.’ Italian law
7. Directive 2004/18 was transposed into Italian law by Legislative Decree No 163/2006 of 12 April 2006 (GURI No 100 of 2 May 2006, Ordinary Supplement), which codifies the rules governing public procurement.
8. Article 38 of Legislative Decree No 163/2006 provides as follows: ‘1. The following persons shall be excluded from participation in procedures for the award of … public works contracts, supply contracts and service contracts, and may not … conclude any related contract: … (c) any person who has been the subject of a conviction that has the force of res judicata or a penal order against which no appeal lies … in respect of serious professional conduct offences to the detriment of the State or the Community; … … (f) any person who, in the reasoned assessment of the contracting authority, has been guilty of serious negligence or bad faith in the performance of any contract awarded to that person by the contracting authority which published the contract notice; or any person who has been found guilty of serious professional misconduct on the basis of any evidence which the contracting authority may establish; …’
9. Article 78(1) of Legislative Decree No 163/2006 is worded as follows: ‘For all contracts … the contracting authorities shall draw up a report containing at least the following information: … (h) where necessary, the reasons why the administration has decided not to award a contract …’
10. Article 79(1) of Legislative Decree No 163/2006 provides as follows: ‘The contracting authorities shall notify without delay the candidates and tenderers of decisions taken concerning … the award of a contract … including the grounds of any decision … not to award a contract for which there has been a competitive tendering procedure …’
11. Article 11(9) of Legislative Decree No 163/2006 specifically refers to the administration’s power to withdraw, suspend or modify its own measures in the following terms: ‘Once the final award has taken effect, and subject to the exercise of the administration’s power to withdraw, suspend or modify its own measures in the cases in which it is so authorised by the provisions in force, the contract shall be concluded … within 60 days.’
12. The administration’s power to withdraw its own measures is provided for, as a general principle applicable to all administrative procedures, in Article 21d of legge n. 241 - Nuove norme in materia di procedimento amministrativo e di diritto di accesso ai documenti amministrativi (Law No 241 introducing new provisions relating to administrative procedure and the right of access to administrative documents) (GURI No 192 of 18 August 1990, p. 7). That article is worded as follows: ‘Where so justified on grounds of public interest, where there has been a change in the factual situation or where the initial assessment of the public interest has been reappraised, any administrative measure having long-term effects may be withdrawn by the body which adopted it or by any other body so authorised by law; as a result of the withdrawal, the measure withdrawn shall be ineffective.’ The dispute in the main proceedings and the questions referred for a preliminary ruling
13. By decision of 28 December 2010, the AREU announced an open tendering procedure for the award of a contract for the supply of ‘services consisting in the transportation by road of organs, tissue, biological material, surgical equipment and patients for transplant operations’. That contract was to be for a two-year period, with the possibility of extending that period by a further 12 months, and was to be awarded on the basis of the economically most advantageous tender.
14. Three of the four companies which participated in the tendering procedure for the award of that contract were rejected by the selection committee after the technical bids had been evaluated. The only company remaining in contention, namely Croce Amica One, was provisionally awarded the contract by decision recorded in a report of 10 May 2011. However, in view of the fact the requirements laid down by national law for the purpose of ‘what is referred to as the “mandatory” verification of any anomaly identified in the tender’ were met in the present case, as the points awarded for the price and those awarded for the other assessment factors were equal to or greater than four-fifths of the corresponding maximum thresholds set out in the call for tenders, the contracting authority requested evidence in support of the technical bid submitted by Croce Amica One. After carrying out that verification, the selection committee concluded, by decision recorded in a report of 23 June 2011, that the tender was anomalous.
15. At the same time, in preliminary criminal law investigations concerning, among others, the legal representative of Croce Amice One in respect of fraud and intentionally false statements, the competent authorities seized documents relating to that company for investigative purposes.
16. By memorandum of 21 July 2011, the AREU notified both Croce Amica One and another company which had participated in the procurement procedure at issue that it had initiated a procedure for the cancellation of the invitation to tender, in accordance with the power available to the administration to withdraw, suspend or modify its own measures.
17. By act of 8 September 2011, the director general of the AREU decided not to proceed with the definitive award of the contract to Croce Amica One and, at the same time, to cancel the entire tendering procedure. By that act, the contracting authority expressed the view that, ‘given the circumstances described, apart from the anomalous nature of the tender, the AREU [could] not in any event, for evident reasons of expediency and reasons connected with the principle of sound administration, proceed to award the services contract to the tenderer Croce Amica One … nor, given the vital nature of the services in question, [could] it postpone the award of the contract pending the outcome of the criminal proceedings or even the conclusion of the investigations currently under way’.
18. The contracting authority did not launch a new tendering procedure for the award of the public contract in question and extended the existing service contract with two associations.
19. By action brought on 2 November 2011, Croce Amica One challenged the contracting authority’s decision of 8 September 2011 referred to at paragraph 17 above before the referring court, seeking the annulment and provisional stay of the decision. It also lodged a claim for compensation for the damage which, in its view, it had sustained as a result of the decision.
20. By decision of 14 May 2013, the Tribunale di Milano (District Court, Milan) indicted the legal representative of Croce Amica One, along with another accused, in connection, inter alia, with the offence of obstructing a public tendering procedure, on the basis that, in order to be awarded the contract, the person concerned had submitted 15 false statements claiming attendance on a course for the safe driving of ambulances.
21. The referring court considers that, in general terms, without prejudice to the exercise of the power available to the administration to withdraw, suspend or modify its own measures in connection with public contacts, the contracting authority concerned - which was acting, ostensibly, on grounds of administrative expediency deriving from the fact that criminal investigations were ongoing concerning the legal representative of the company to which the contract had been provisionally awarded - failed to have regard to Article 45 of Directive 2004/18, in the light, in particular, of the ‘personal situation of the candidate or tenderer’ as defined in that provision.
22. The referring court therefore considers that, under that provision, a tenderer may be excluded only where the tenderer has been convicted by a judgment having the force of res judicata .
23. The referring court is also uncertain, from an EU law perspective, as to the full extent of its own jurisdiction in that regard, taking the view that its jurisdiction cannot be confined to review of procedural flaws vitiating the exercise of the administration’s powers. That court considers that not to accept that the administrative court enjoys extensive powers to review the facts or legal concepts, such as the fact that, in the present case, there has been no definitive finding as to liability in criminal law of the legal representative of the company to which the contract was provisionally awarded, would be totally at odds with the spirit and rationale of Article 45 of Directive 2004/18.
24. In the light of the foregoing considerations, the Tribunale amministrativo regionale per la Lombardia (Regional Administrative Court, Lombardy) has decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Is it consistent with Community law for it to be permissible for a contracting authority, in the exercise of its power to withdraw a decision in relation to a public procurement procedure pursuant to Article 21d of Law No 241 of 7 August 1990, to decide not to proceed with the definitive award of the contract merely because criminal investigations are pending vis-à-vis the legal representative of the company to which the provisional award was made? (2) Is it consistent with Community law for there to be a derogation from the principle of the finality of findings of criminal liability, as expressed in Article 45 of Directive [2004/18], on grounds of administrative expediency, which is a matter to be determined by the administrative authorities alone? (3) Is it consistent with Community law for there to be a derogation from the principle of the finality of findings of criminal liability, as expressed in Article 45 of Directive [2004/18], where pending criminal investigations concern offences relating to the tendering procedure covered by the measure adopted by the administration in accordance with its power to withdraw, suspend or modify its own measures? (4) Is it consistent with Community law for the decisions adopted by a contracting authority in matters of public procurement to be open to unlimited review by a national administrative court, in exercise of the jurisdiction conferred in matters relating to public procurement, covering the reliability and the suitability of the tender, and thus going above and beyond the limited cases of clear absurdity, irrationality, failure to state adequate reasons or error as to the facts?’ Consideration of the questions referred Questions 1 to 3
25. By questions 1 to 3, which it is appropriate to consider together, the referring court asks, in essence, whether - where the conditions for the application of the grounds for exclusion set out in Article 45 of Directive 2004/18 are not fulfilled - that article precludes the adoption by a contracting authority of a decision not to award a contract for which a procurement procedure has been held and not to proceed with the definitive award of the contract to the sole tenderer remaining in contention to whom the contract had been provisionally awarded.
26. The formulation of those questions and the reference to Article 45 of Directive 2004/18 may be traced back to the fact that, on 8 September 2011, the director general of the AREU decided, first, not to proceed with the definitive award of the contract at issue in the main proceedings to Croce Amica One and, second, to cancel the related tendering procedure.
27. It should be noted at the outset that, notwithstanding the reference in the request for a preliminary ruling to Article 45 of Directive 2004/18, it is apparent from the documents before the Court that the measure contested in the main proceedings is a decision by a contracting authority withdrawing an invitation to tender and cancelling the procurement procedure. That decision is different from a decision relating to the exclusion of a tenderer under Article 45 of the directive.
28. In that context, it should be observed that, while the Court has not been apprised of the precise reasons for the withdrawal of the invitation to tender at issue before the referring court, that court would appear to associate the conduct of Croce Amica One’s legal representative only with the grounds for exclusion relating to criminal law and entailing a conviction by a judgment that has become final, namely the grounds set out in Article 45(1) and (2)(c) of Directive 2004/18. It is useful to make clear that the grounds for exclusion set out in Article 45(2)(d) and (g) of the directive also give contracting authorities the power to exclude any economic operator who has been guilty of grave professional misconduct proven by any means which the contracting authorities can demonstrate, who is guilty of serious misrepresentation or who has failed to supply the information required for the qualitative selection of the tenders, without there being any need for the economic operator concerned to have been convicted by a judgment that has become final.
29. A decision to withdraw an invitation to tender for a public contract must comply with Articles 41(1) and 43 of Directive 2004/18.
30. Article 41(1) of Directive 2004/18 requires contracting authorities to inform candidates and tenderers as soon as possible of such decisions and to state the grounds for the decision, while Article 43 of the directive requires them to refer to those reasons in the report which it is obliged to draw up for any public contract. However, Directive 2004/18 does not contain any provision concerning the substantive or formal conditions for such a decision.
31. It should be noted in that regard that, according to the Court’s case-law, Article 8(2) of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54), a provision similar to Article 41(1) of Directive 2004/18, does not provide that a decision by a contracting authority not to award a public contract is to be limited to exceptional cases or has necessarily to be based on serious grounds (judgment in Fracasso and Leitschutz , Case C‑27/98, EU:C:1999:420, paragraphs 23 and 25).
32. Similarly, the Court has also held that, although Article 12(2) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1), a provision also similar to Article 41(1) of Directive 2004/18, requires the contracting authority to notify candidates and tenderers of the grounds for its decision if it decides to withdraw the invitation to tender for a public contract, there is no implied obligation on that authority to carry the award procedure to its conclusion (see judgment in HI , Case C‑92/00, EU:C:2002:379, paragraph 41).
33. However, the Court has been careful to point out that the requirement to communicate the grounds for a decision to withdraw an invitation to tender is dictated by the concern to ensure a minimum level of transparency in public procurement procedures to which EU rules apply, and hence compliance with the principle of equal treatment, which forms the basis of those rules (see, to that effect, judgment in HI , EU:C:2002:379, paragraphs 45 and 46 and the case-law cited).
34. The Court has also held that Article 1(1) of Directive 89/665 requires the decision of the contracting authority withdrawing the invitation to tender for a public contract to be open to a review procedure, and to be capable of being annulled, where appropriate, on the ground that it has infringed EU law on public contracts or national rules transposing that law. Furthermore, the Court has stated that, even in cases where the relevant national legislation gives the contracting authorities a wide discretion in relation to the withdrawal of invitations to tender, the national courts must be able, pursuant to Directive 89/665, to check the compatibility of a decision to withdraw an invitation to tender with the relevant rules of EU law (see judgment in HI , EU:C:2002:379, paragraphs 55 and 62).
35. Accordingly, EU law does not preclude Member States from providing in their legislation for the possibility of adopting a decision to withdraw an invitation to tender. The grounds for such a decision may thus be based on reasons which reflect, inter alia, the assessment as to whether it is expedient, from the point of view of the public interest, to carry an award procedure to its conclusion, having regard, among other things, to any change that may arise in the economic context or factual circumstances, or indeed the needs of the contracting authority concerned. The grounds for such a decision may also relate to there being an insufficient degree of competition, due to the fact that, at the conclusion of the award procedure in question, only one tenderer was qualified to perform the contract.
36. As a consequence, provided the principles of transparency and equal treatment are complied with, a contracting authority cannot be required to carry to its conclusion an award procedure that has been initiated and to award the contract in question, including where there remains only one tenderer in contention.
37. In view of the foregoing considerations, the answer to Questions 1 to 3 is that Articles 41(1), 43 and 45 of Directive 2004/18 must be interpreted as meaning that, where the conditions for the application of the grounds for exclusion set out in Article 45 are not fulfilled, that article does not preclude the adoption by a contracting authority of a decision not to award a contract for which a procurement procedure has been held and not to proceed with the definitive award of the contract to the sole tenderer remaining in contention to whom the contract had been provisionally awarded. Question 4
38. By its fourth question, the referring court asks, in essence, whether, under EU law, the competent national court may conduct a review of a decision of a contracting authority in the exercise of its unlimited jurisdiction, that is, a review enabling it to take account of the reliability and suitability of the tenderers’ bids and to substitute its own assessment for the contracting authority’s evaluation as to the expediency of withdrawing the invitation to tender.
39. According to the Court’s case-law, the decision to withdraw an invitation to tender for a public procurement contract is one of those ‘decisions taken by the contracting authorities’ in relation to which Member States are required, under the third subparagraph of Article 1(1) of Directive 89/665, to establish in their national law review procedures designed to ensure that the relevant substantive rules of EU law on public procurement contracts or the domestic provisions transposing those rules are complied with (see, to that effect, judgments in HI , EU:C:2002:379, paragraph 53 to 55, and in Koppensteiner , C‑15/04, EU:C:2005:345, paragraph 29).
40. Since Directive 89/665 does no more than coordinate existing mechanisms in Member States in order to ensure the full and effective application of the directives laying down substantive rules concerning public contracts, it does not expressly define the scope of the remedies which the Member States must establish for that purpose. Therefore, the question of the extent of the judicial review exercised in the context of the review procedures covered by Directive 89/665 must be examined in the light of the purpose of the latter, care being taken to ensure that its effectiveness is not undermined (judgment in HI , EU:C:2002:379, paragraphs 58 and 59).
41. It should be noted, in that regard, that the function of the review system is governed by the third subparagraph of Article 1(1) of Directive 89/665, which provides that Member States are to take the measures necessary to ensure that, as regards contracts falling within the scope of Directive 2004/18, decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible, on the grounds that such decisions have infringed EU law in the field of public procurement or national rules transposing that law.
42. It follows that the review procedures established by that provision serve to ensure that the relevant rules of EU law, in particular those laid down in Directive 2004/18, or national provisions transposing those rules, are complied with.
43. It must be borne in mind that review of legality cannot be confined to an examination of whether the decisions of contracting authorities are arbitrary (see, to that effect, HI , EU:C:2002:379, paragraph 63).
44. Therefore, such remedies entail a review as to whether an act was lawful, not a review of whether the act was expedient.
45. In the absence of specific EU legislation in this field, the detailed provisions governing judicial review must be established by national procedural rules, subject to compliance with the principles of equivalence and effectiveness (see, to that effect, HI , EU:C:2002:379, paragraph 68). Accordingly, the national legislature may grant the competent national courts and tribunals more extensive powers for the purpose of reviewing whether a measure was expedient.
46. The answer to Question 4 is therefore that EU public procurement law, in particular the third subparagraph of Article 1(1) of Directive 89/665, must be interpreted as meaning that the review referred to in that provision constitutes a review of the lawfulness of decisions adopted by contracting authorities, the purpose of which is to ensure that the relevant rules of EU law or national provisions transposing those rules are complied with. It is not possible for such review to be confined to a simple examination of whether the decisions adopted by contracting authorities are arbitrary. On the other hand, that does not mean that it is not open to the national legislature to grant the competent national courts and tribunals the power to review whether a measure was expedient. Costs
47. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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.