1 These requests for a preliminary ruling concern the interpretation of Article 3(27) and Articles 10, 19 and 28 of Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (Framework Directive) (OJ 2007 L 263, p. 1), and of Articles 60 and 62 of Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ 2014 L 94, p. 243).
2 The references have been made in two sets of proceedings between, on the one hand, Iveco Orecchia SpA and APAM Esercizio SpA (C‑68/21) and, on the other hand, between Iveco Orecchia SpA and Brescia Trasporti SpA (C‑84/21), concerning two public contracts awarded by APAM Esercizio SpA and Brescia Trasporti SpA, respectively.
3 Recitals 2, 3 and 14 of Directive 2007/46 state: ‘(2) For the purposes of the establishment and operation of the internal market of the Community, it is appropriate to replace the Member States’ approval systems with a Community approval procedure based on the principle of total harmonisation. (3) The technical requirements applicable to systems, components, separate technical units and vehicles should be harmonised and specified in regulatory acts. Those regulatory acts should primarily seek to ensure a high level of road safety, health protection, environmental protection, energy efficiency and protection against unauthorised use. … (14) The main objective of the legislation on the approval of vehicles is to ensure that new vehicles, components and separate technical units put on the market provide a high level of safety and environmental protection. …’
4 Article 1 of that directive, entitled ‘Subject matter’, provides: ‘This Directive establishes a harmonised framework containing the administrative provisions and general technical requirements for approval of all new vehicles within its scope and of the systems, components and separate technical units intended for those vehicles, with a view to facilitating their registration, sale and entry into service within the Community. This Directive also establishes the provisions for the sale and entry into service of parts and equipment intended for vehicles approved in accordance with this Directive. Specific technical requirements concerning the construction and functioning of vehicles shall be laid down in application of this Directive in regulatory acts, the exhaustive list of which is set out in Annex IV.’
5 Article 2 of that directive, entitled ‘Scope’, states in paragraph 1 thereof: ‘This Directive applies to the type-approval of vehicles designed and constructed in one or more stages for use on the road, and of systems, components and separate technical units designed and constructed for such vehicles. …’
6 Article 3 of Directive 2007/46, headed ‘Definitions’, states: ‘For the purposes of this Directive and of the regulatory acts listed in Annex IV, save as otherwise provided therein: 1. “regulatory act” means a separate directive or regulation or a UNECE Regulation annexed to the Revised 1958 Agreement; 2. “separate directive or regulation” means a directive or regulation listed in Part I of Annex IV. This term includes also their implementing acts; 3. “type-approval” means the procedure whereby a Member State certifies that a type of vehicle, system, component or separate technical unit satisfies the relevant administrative provisions and technical requirements; … 5. “EC type-approval” means the procedure whereby a Member State certifies that a type of vehicle, system, component or separate technical unit satisfies the relevant administrative provisions and technical requirements of this Directive and of the regulatory acts listed in Annex IV or XI; … 23. “system” means an assembly of devices combined to perform one or more specific functions in a vehicle and which is subject to the requirements of any of the regulatory acts; 24. component” means a device subject to the requirements of a regulatory act and intended to be part of a vehicle, which may be type-approved independently of a vehicle where the regulatory act makes express provisions for so doing; 25. “separate technical unit” means a device subject to the requirements of a regulatory act and intended to be part of a vehicle, which may be type-approved separately, but only in relation to one or more specified types of vehicle where the regulatory act makes express provisions for so doing; 26. “original parts or equipment” means parts or equipment which are manufactured according to the specifications and production standards provided by the vehicle manufacturer for the production of parts or equipment for the assembly of the vehicle in question. This includes parts or equipment which are manufactured on the same production line as these parts or equipment. It is presumed unless the contrary is proven, that parts constitute original parts if the part manufacturer certifies that the parts match the quality of the components used for the assembly of the vehicle in question and have been manufactured according to the specifications and production standards of the vehicle manufacturer; 27. “manufacturer” means the person or body who is responsible to the approval authority for all aspects of the type-approval or authorisation process and for ensuring conformity of production. It is not essential that the person or body be directly involved in all stages of the construction of the vehicle, system, component or separate technical unit which is the subject of the approval process; …’
7 Under Article 5 of Directive 2007/46, entitled ‘Obligations of manufacturers’: ‘1. The manufacturer is responsible to the approval authority for all aspects of the approval process and for ensuring conformity of production, whether or not the manufacturer is directly involved in all stages of the construction of a vehicle, system, component or separate technical unit. …’
8 Article 10 of that directive, entitled ‘Specific provisions concerning systems, components or separate technical units’, is worded as follows: ‘1. Member States shall grant an EC type-approval in respect of a system which conforms to the particulars in the information folder and which meets the technical requirements laid down in the relevant separate directive or regulation, as prescribed in Annex IV or Annex XI. 2. Member States shall grant a component or separate technical unit EC type-approval in respect of a component or separate technical unit which conforms to the particulars in the information folder and which meets the technical requirements laid down in the relevant separate directive or regulation, as prescribed in Annex IV. …’
9 Under Article 19 of that directive, entitled ‘EC type-approval mark’: ‘1. The manufacturer of a component or separate technical unit, whether or not it is part of a system, shall affix to each component or unit manufactured in conformity with the approved type the EC type-approval mark, required by the relevant separate directive or regulation. 2. Where no EC type-approval mark is required, the manufacturer shall affix at least his trade name or trade mark, and the type number and/or an identification number. …’
10 Article 28 of that directive, entitled ‘Sale and entry into service of components and separate technical units’, provides, in paragraph 1 thereof: ‘Member States shall permit the sale or entry into service of components or separate technical units if and only if they comply with the requirements of the relevant regulatory acts and are properly marked in accordance with Article 19.’
11 Article 38(1) of Directive 2007/46, entitled ‘Information intended for manufacturers of components or separate technical units’, provides: ‘The vehicle manufacturer shall make available to the manufacturers of components or separate technical units all those particulars including, as the case may be, drawings specifically listed in the annex or appendix to a regulatory act that are necessary for EC type-approval of components or separate technical units, or necessary to obtain an authorisation under Article 31. …’
12 Annex IV to Directive 2007/46, entitled ‘Requirements for the purpose of EC type-approval of vehicles’, contains two parts. Part I of that annex contains the list of European Union regulatory acts, while Part II lists certain regulations of the United Nations Economic Commission for Europe (UNECE), stating that an approval must be recognised as an alternative to an EC type-approval granted under the relevant separate directive or regulation in the table of Part I.
13 Article 1(u) of Commission Regulation (EC) No 1400/2002 of 31 July 2002 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices in the motor vehicle sector (OJ 2002 L 203, p. 30), which, under Article 12(3) of that regulation, expired on 31 May 2010, defined: ‘“spare parts of matching quality” means exclusively spare parts made by any undertaking which can certify at any moment that the parts in question match the quality of the components which are or were used for the assembly of the motor vehicles in question.’
14 Recitals 56 and 83 of Directive 2014/25 are worded as follows: ‘(56) Nothing in this Directive should prevent the imposition or enforcement of measures necessary to protect public policy, public morality, public security, health, human and animal life, the preservation of plant life or other environmental measures, in particular with a view to sustainable development, provided that those measures are in conformity with the TFEU. … (83) … Consequently, technical specifications should be drafted in such a way as to avoid artificially narrowing down competition through requirements that favour a specific economic operator by mirroring key characteristics of the supplies, services or works habitually offered by that economic operator. Drawing up the technical specifications in terms of functional and performance requirements generally allows that objective to be achieved in the best way possible. … …’
15 Article 1 of that directive, headed ‘Subject matter and scope’, provides: ‘1. This Directive establishes rules on the procedures for procurement by contracting entities with respect to contracts as well as design contests, whose value is estimated to be not less than the thresholds laid down in Article 15. 2. Procurement within the meaning of this Directive is the acquisition by means of a supply, works or service contract of works, supplies or services by one or more contracting entities from economic operators chosen by those contracting entities, provided that the works, supplies or services are intended for the pursuit of one of the activities referred to in Articles 8 to 14.’
16 Article 3(1) of that directive provides: ‘For the purpose of this Directive “contracting authorities” means State, regional or local authorities, bodies governed by public law or associations formed by one or more such authorities or one or more such bodies governed by public law.’
17 Article 4(1)(a) of Directive 2014/25 provides: ‘For the purpose of this Directive contracting entities are entities, which: (a) are contracting authorities or public undertakings and which pursue one of the activities referred to in Articles 8 to 14’.
18 Under Article 11 of that directive, entitled ‘Transport services’: ‘This Directive shall apply to activities relating to the provision or operation of networks providing a service to the public in the field of transport by railway, automated systems, tramway, trolley bus, bus or cable. …’
19 Article 15 of that directive, in the version applicable to the facts in the main proceedings, provided that it applied, in the case of supply contracts, to procurements with a value net of value-added tax (VAT) estimated to be equal to or greater than a threshold of EUR 414000, save where those contracts were excluded by virtue of the exclusions in Articles 18 to 23 or pursuant to Article 34 concerning the pursuit of the activity in question.
20 Article 60 of that directive, entitled ‘Technical specifications’, is worded as follows: ‘1. The technical specifications as defined in point 1 of Annex VIII shall be set out in the procurement documents. The technical specifications shall lay down the characteristics required of a works, service or supply. … 2. Technical specifications shall afford equal access of economic operators to the procurement procedure and shall not have the effect of creating unjustified obstacles to the opening up of public procurement to competition. 3. Without prejudice to mandatory national technical rules, to the extent that they are compatible with Union law, the technical specifications shall be formulated in one of the following ways: … (b) by reference to technical specifications and, in order of preference, to national standards transposing European standards, European Technical Assessments, common technical specifications, international standards, other technical reference systems established by the European standardisation bodies or - when any of those do not exist - national standards, national technical approvals or national technical specifications relating to the design, calculation and execution of the works and use of the supplies; each reference shall be accompanied by the words “or equivalent”; … 4. Unless justified by the [subject matter] of the contract, technical specifications shall not refer to a specific make or source, or to a particular process which characterises the products or services provided by a specific economic operator, or to trade marks, patents, types or a specific origin or production with the effect of favouring or eliminating certain undertakings or certain products. Such reference shall be permitted, on an exceptional basis, where a sufficiently precise and intelligible description of the [subject matter] of the contract pursuant to paragraph 3 is not possible. Such reference shall be accompanied by the words “or equivalent”. 5. Where a contracting entity uses the option of referring to the technical specifications referred to in point (b) of paragraph 3, it shall not reject a tender on the ground that the works, supplies or services tendered for do not comply with the technical specifications to which it has referred, once the tenderer proves in its tender by any appropriate means, including the means of proof referred to in Article 62, that the solutions proposed satisfy in an equivalent manner the requirements defined by the technical specifications. …’
21 Under Article 62 of Directive 2014/25, entitled ‘test reports, certification and other means of proof’: ‘1. Contracting entities may require that economic operators provide a test report from a conformity assessment body or a certificate issued by such a body as means of proof of conformity with requirements or criteria set out in the technical specifications, the award criteria or the contract performance conditions. Where contracting entities require the submission of certificates drawn up by a specific conformity assessment body, certificates from equivalent other conformity assessment bodies shall also be accepted by the contracting entities. … 2. Contracting entities shall accept other appropriate means of proof than those referred to in paragraph 1, such as a technical dossier of the manufacturer where the economic operator concerned had no access to such certificates or test reports referred to in paragraph 1, or no possibility of obtaining them within the relevant time limits, provided that the lack of access is not attributable to the economic operator concerned and provided that the economic operator concerned thereby proves that the works, supplies or services meet the requirements or criteria set out in the technical specifications, the award criteria or the contract performance conditions. …’
22 Directive 2007/46 was transposed in Italian law by decreto no 32721 del Ministero delle Infrastrutture e dei Trasporti - Recepimento della direttiva 2007/46/CE del Parlamento europeo e del Consiglio del 5 settembre 2007, relativa all’omologazione dei veicoli a motore e dei loro rimorchi, nonché dei sistemi, componenti ed entità tecniche destinati a tali veicoli (Order No 32721 of the Ministry of Infrastructure and Transport transposing Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles) of 28 April 2008 (Ordinary Supplement to GURI No 162 of 12 July 2008).
23 Article 3(ff) of that order defines a ‘manufacturer’ as ‘the person or body who is responsible to the approval authority for all aspects of the type-approval or authorisation process and for ensuring conformity of production. It is not essential that the person or body be directly involved in all stages of the construction of the vehicle, system, component or separate technical unit which is the subject of the approval.’
24 Under Article 49 of the decreto del Presidente della Repubblica no 445 - Testo unico delle disposizioni legislative e regolamentari in materia di documentazione amministrativa (Decree of the President of the Republic No 445 on the consolidated text of the laws and regulations on administrative documentation) of 28 December 2000 (Ordinary Supplement to GURI No 42 of 20 February 2001), ‘certificates … of origin, EC conformity, trade marks or patents cannot be replaced by another document, unless otherwise provided by the applicable legislation’.
25 Under Article 68 of the decreto legislativo no 50 - Codice dei contratti pubblici(Legislative Decree No 50 laying down a public procurement code) of 18 April 2016 (Ordinary Supplement to GURI No 91 of 19 April 2016): ‘1. The technical specifications defined in point 1 of Annex XIII shall be included in the procurement documents and shall define the characteristics required of the works, services or supplies. … … 5. Without prejudice to mandatory national technical rules, the technical specifications shall be formulated in one of the following ways: … (b) by reference to technical specifications and, in order of preference, to national standards transposing European standards, European Technical Assessments, common technical specifications, international standards, other technical reference systems established by the European standardisation bodies or - when any of those do not exist - national standards, national technical approvals or national technical specifications relating to the design, calculation and execution of the works and use of the supplies. Each reference shall be accompanied by the words “or equivalent” … 6. Unless justified by the subject matter of the contract, technical specifications shall not refer to a specific make or source, or to a particular process which characterises the products or services provided by a specific economic operator, or to trade marks, patents, types or a specific origin or production with the effect of favouring or eliminating certain undertakings or certain products. Such reference shall be permitted on an exceptional basis, where a sufficiently precise and intelligible description of the subject matter of the contract pursuant to paragraph 5 is not possible. Such reference shall be accompanied by the words “or equivalent”. 7. Where a contracting authority uses the option of referring to the technical specifications referred to in point (b) of paragraph 5, it shall not declare that tender inadmissible or shall not reject it on the grounds that the works, supplies or services offered do not comply with the technical specifications to which it has referred, once the tenderer proves in its tender by any appropriate means, including the means of proof referred to in Article 86, that the solutions proposed satisfy in an equivalent manner the requirements defined by the technical specifications.’
26 Article 86(5) of this legislative decree provides that: ‘Proof of the technical capability of economic operators’ may be demonstrated by one or more of the means listed in Annex XVII, Part II, depending on the nature, quantity or importance, and use of the works, supplies or services’.
27 Part II(k) of Annex XVII to that legislative decree states that the means of proof demonstrating the technical capability for the products to be supplied are: ‘(i) samples, descriptions or photographs the authenticity of which must be certified at the request of the contracting authority; (ii) certificates issued by official bodies or departments responsible for quality control and recognised as competent, confirming the conformity of products well identified by references to technical specifications or standards’.
28 By notice of invitation to tender published on 21 August 2018, APAM Esercizio, a public undertaking operating in the local public transport sector in Mantua (Italy), launched a procedure for the conclusion of a framework agreement for the supply of ‘original Iveco spare parts, or equivalent, for buses’, the value of which was estimated at EUR 710000.
29 Article 5.1 of the tender specifications, entitled ‘Typology of the spare parts’, distinguished between three types of spare parts, namely ‘Spare parts intended for vehicle safety and environmental protection’, ‘Original (or first-fit) spare parts’ and ‘equivalent spare parts’, the latter being defined as ‘spare parts (parts, components, equipment) of a quality equivalent to that of the original, or parts of a quality at least equal to that of the components used for vehicle assembly, produced according to the technical specifications and production standards of the manufacturer of the original spare part’.
30 In that regard, it was stated that ‘in accordance with EU legislation and the legal provisions in force, the aforementioned [equivalent] spare parts may be manufactured by any undertaking able to certify at any time, in accordance with the rules in force (UNI‑CEI‑ENISO/IEC 17050), that the quality of the spare parts is consistent with that of the original components used in the assembly of the motor vehicles in question’.
31 Article 5.2 of the tender specifications, headed ‘Certifications and declarations’, stated that, in the event of the supply of an equivalent spare part, the tenderer ‘shall submit in the course of the tender procedure, in respect of any equivalent spare part proposed, a certificate of conformity or a specific type-approval for the replacement component, provided by the manufacturer, the type-approval body or the laboratory for tests certified according to ISO 45000 standard’.
32 In accordance with Article 15 of the tender specifications, entitled ‘administrative documentation’, the administrative documents to be submitted with the offer included, as laid down in Article 15(d), ‘the appropriate technical documentation for each equivalent spare part proposed, accompanied by: … a product type-approval certificate, where mandatory, issued by the manufacturer of the equivalent spare part proposed; a certificate as to the equivalence of the product proposed in relation to the relevant original (or first-fit) product, in that it is a perfect substitute requiring no adaptation of the spare part, the unit or the system into which it is to be fitted, and performance characteristics ensuring the product’s regular functionality and safety in the system, as well as an identical lifetime, issued by the producer of the equivalent spare part proposed’.
33 Three undertakings participated in the tendering procedure, including, inter alia, Veneta Servizi International Srl unipersonale (‘VSI’) and Iveco Orecchia, two undertakings established in Italy.
34 By decision of 29 January 2019, APAM Esercizio made a final award of the contract to VSI.
35 By an action brought before the Tribunale amministrativo regionale della Lombardia - sezione staccata di Brescia (Regional Administrative Court, Lombardy, Brescia Section, Italy), Iveco Orecchia, which was ranked second, challenged the award of the contract to VSI. In support of that action, Iveco Orecchia claimed, inter alia, that VSI should have been excluded from the call for tenders because the tender which it had submitted was incomplete, given that that undertaking had not provided, for the purposes of proving that the spare parts which it allegedly manufactured complied with the technical specifications, the certificates of approval or conformity and the technical documents, the submission of which was required, on pain of exclusion, by the tender specifications. According to Iveco Orecchia, VSI had merely submitted a general self-certification of equivalence of those spare parts, claiming, that it was both the ‘fabbricante’ and the ‘costruttore’ of those spare parts, although it was merely a dealer.
36 By judgment of 25 June 2019, le Tribunale amministrativo regionale per la Lombardia - Sezione staccata di Brescia (Regional Administrative Court, Lombardy, Brescia Section) dismissed Iveco Orecchia’s action as unfounded. That court held, inter alia, that the rules attached to the call for tenders relating to the documentation to be submitted by tenderers required production of a certificate of conformity or a specific type-approval, which means that it was sufficient to submit such a certificate. Moreover, Iveco Orecchia did not establish, as regards the individual spare parts covered by the relevant market, on what legal basis it was also necessary to adduce proof confirming the approval of those parts.
37 Iveco Orecchia brought an appeal against that judgment before the Consiglio di Stato (Council of State, Italy).
38 By notice of invitation to tender published on 21 November 2018, Brescia Trasporti, a public undertaking operating in the local public transport sector in Brescia (Italy), launched an award procedure, with a basic contract value estimated at EUR 2100000, ‘for the supply of spare parts for Iveco buses fitted with an Iveco engine - CIG 7680570EDB’.
39 Article 1 of the technical specifications annexed to the call for tenders, entitled ‘Technical definitions’, defined three types of spare parts, namely, ‘original spare parts’, ‘first-fit original spare parts’ and ‘equivalent spare parts’, the latter being defined as ‘[spare] parts of a quality at least equal to that of the components used for vehicle assembly, produced in accordance with the spare part manufacturer’s own technical specifications and production standards’.
40 Under Article 3 of the technical specifications, in the case of ‘equivalent quality spare parts’, the tender had to be accompanied, on pain of exclusion, by a ‘certificate from the spare part manufacturer showing, in respect of each spare part (i) that its quality is of a level high enough to ensure that its use will not compromise the reputation of the authorised network; (ii) that it is perfectly interchangeable with the original spare parts, … and requires no adaptation of the spare part, the unit or the system onto which it is to be fitted’. That provision also provided that ‘the supplier shall also submit the product type-approval certificate, where this is mandatory. As regards brake linings, brake discs and drums, the supplier shall, in addition to the aforementioned documents, provide a certificate confirming Community type-approval [under Regulation No 90 (UNECE)].’
41 Two undertakings took part in the tendering procedure, namely VAR Srl, a company also established in Italy, and Iveco Orecchia.
42 By decision of 28 February 2019, Brescia Trasporti made a final award of the contract to VAR.
43 By an action brought before the Tribunale amministrativo regionale della Lombardia - sezione staccata di Brescia (Regional Administrative Court, Lombardy, Brescia Section), Iveco Orecchia, which was ranked in second position, challenged the decision awarding the contract to VAR. In support of that action, Iveco Orecchia claimed, inter alia, that VAR should have been excluded from the call for tenders because the tender which it had submitted was incomplete, since that undertaking had not provided, in respect of the equivalent spare parts which it proposed, certificates from the manufacturer demonstrating the equivalence of those spare parts. The certificates from VAR itself are irrelevant, since it is a trader/distributor of spare parts and not a ‘fabbricante/costruttore’. In addition, VAR did not provide any certificates confirming the type-approval of those spare parts or any information concerning their possible approval.
44 By judgment of 26 August 2019, le Tribunale amministrativo regionale per la Lombardia - Sezione staccata di Brescia (Regional Administrative Court, Lombardy, Brescia Section) dismissed Iveco Orecchia’s action as unfounded. That court held, inter alia, that a tenderer who demonstrates the equivalence of its products cannot be excluded from a call for tenders and that the relevant legislation did not require each component of a vehicle to be approved. The argument that all spare parts covered by the regulatory acts listed in Annex IV to Directive 2007/46 must be subject to a specific type-approval is unfounded. The absence of proof of type-approval for equivalent spare brake drums offered by VAR, for which approval is required by Regulation No 90 UNECE, is not relevant, given, in particular, that that regulation applies only to vehicles registered after November 2016.
45 Iveco Orecchia brought an appeal against that judgment before the referring court.
46 Di Pinto & Dalessandro Spa and Bellizzi srl, two companies established in Italy and operating in the bus maintenance market, participated in that procedure.
47 The referring court considers that a distinction must be drawn between two aspects relating to the call for tenders procedures at issue, namely, first, that of the equivalence of spare parts proposed by the tenderers to original spare parts, which presupposes an assessment of the quality of the spare parts at issue and a comparison of the goods concerned and, second, that of the type-approval of such spare parts, which implies that they correspond to a European or national technical specification.
48 That court also observes that the principle that, in the context of a call for tenders, equivalent products are allowed is intended to safeguard free competition and equal treatment between tenderers.
49 Spare parts subject to approval, in particular those capable of compromising vehicle safety and environmental performance, may be sold only where they have been type-approved and authorised by the type-approval authority. In that regard, Annex IV to Directive 2007/46 contains a detailed list of the categories of components for which there are relevant and specific rules on approval.
50 In the procurement procedures at issue in the main proceedings, the rules set out in the call for tenders relating to the documentation to be provided by tenderers required a type-approval certificate to be provided, in the event that such approval was compulsory. In the present case, however, the successful tenderers submitted, and the contracting authorities accepted, as an alternative proof of the equivalence of the spare parts proposed to the original parts, a declaration by the tenderer which was not accompanied by the required type-approval certificate or other equivalent technical documents, for example conformity verification tests.
51 In the first place, the question therefore arises whether, in the case of equivalent spare parts subject to approval, the tenderer must also produce, on pain of exclusion of its tender, the type-approval certificate as evidence that those parts are indeed equivalent to the original parts or, at the very least, adduce concrete proof that the spare part has been type-approved, or whether it is sufficient, as an alternative to those documents, to supply a declaration by the tenderer that the spare parts proposed in its tender are equivalent to the original parts.
52 According to the referring court, it appears that, if a spare part is covered by one of the regulatory acts listed in Annex IV to Directive 2007/46, it may be marketed only if it has been subject to prior approval, in accordance with the relevant provisions of that directive and with the principles of equal treatment, reasonableness, proper functioning and impartiality. However, it cannot be ruled out that it may be sufficient, instead of proof of such approval, to provide a certificate of equivalence stating that the spare part complies with the technical specifications laid down in the call for tenders at issue.
53 In the second place, it is necessary to determine which entity is responsible for issuing the declarations of equivalence and, in particular, whether they must necessarily be drawn up by the manufacturer of the spare part proposed or whether they may also be drawn up by a reseller or dealer.
54 According to the referring court, the concept of ‘costruttore’, as defined in Article 3(27) of Directive 2007/46, may be interpreted restrictively which would result in that concept being the same as that of ‘fabbricante’. Article 1(1)(u) of Regulation No 1400/2002 supports such an approach. By contrast, that concept may also be understood in a broader sense, namely as covering the producer, within the meaning of the EU legislation on consumer protection or the operator who places on the market and markets, under its own name and own responsibility, equivalent parts manufactured by others.
55 In those circumstances, the Consiglio di Stato (Council of State) decided to stay the proceedings in the two cases in the main proceedings and to refer the following questions, worded identically in each of those two cases, to the Court of Justice for a preliminary ruling: ‘(1) Is it compatible with EU law, and in particular with the provisions of Directive 2007/46/EC (laid down in Articles 10, 19 and 28 of that directive) and the principles of equal treatment and impartiality, open competition and sound administration, for - with specific reference to the supply through public procurement of replacement parts for buses intended for public service - a contracting authority to be allowed to accept replacement parts intended for a particular vehicle, made by a manufacturer other than the vehicle manufacturer, and therefore not approved together with the vehicle, falling into one of the categories of components covered by the technical rules listed in Annex IV to that directive ([entitled] ‘List of requirements for the purpose of EC type-approval of vehicles’) and put to tender without being accompanied by the type-approval certificate and without any information on the actual type-approval, and indeed on the assumption that type-approval is not needed, as only a declaration of equivalence to the type-approved original made by the tenderer is sufficient? (2) Is it compatible with EU law, and in particular Article 3(27) of Directive 2007/46/EC to allow - in relation to the supply through public procurement of replacement parts for buses intended for public service - an individual tenderer to describe itself as ‘manufacturer’ of a specific non-original replacement part intended for a particular vehicle, especially where it falls into one of the categories of components covered by the technical rules listed in Annex IV (List of requirements for the purpose of EC type-approval of vehicles) to Directive 2007/46/EC, or must that tenderer prove - for each of the replacement parts thus subject to tender and in order to certify their equivalence to the technical specifications of the tender - that it is the entity who is responsible to the approval authority for all aspects of the type-approval and for ensuring conformity of production and the related level of quality and is directly involved in at least some of the stages of the construction of the component which is the subject of the approval, and if so, by what means is such proof to be provided?’
56 By decision of 16 March 2021, Cases C‑68/21 and C‑84/21 were joined for the purposes of the written and oral parts of the procedure, and of the judgment.
57 In the first place, it should be noted as a preliminary point that, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it. The Court has a duty to interpret all provisions of EU law which national courts require in order to decide on the actions pending before them, even if those provisions are not expressly indicated in the questions referred to the Court by those courts (judgment of 19 December 2019, Nederlands Uitgeversverbond and Groep Algemene Uitgevers, C‑263/18, EU:C:2019:1111, paragraph 31 and the case-law cited).
58 To that end, the Court can extract from all the information provided by the national court, in particular from the grounds of the order for reference, the points of EU law which require interpretation in view of the subject matter of the dispute in the main proceedings (judgment of 19 December 2019, Nederlands Uitgeversverbond and Groep Algemene Uitgevers, C‑263/18, EU:C:2019:1111, paragraph 32 and the case-law cited).
59 In the present case, while it is true that the referring court refers, in its questions for a preliminary ruling, only to certain provisions of Directive 2007/46 and only to a number of legal principles, it is apparent both from the explanations provided by that court and from its questions referred for a preliminary ruling that those questions relate to the means of proof which tenderers may or must be asked to submit in the context of a call for tenders. It follows that, in order to give a useful answer to the questions referred, account must also be taken of the provisions of EU law relating specifically to the means of proof which tenderers may or must be asked to submit in the context of a call for tenders in order to establish that their tenders comply with the technical specifications laid down in that call for tenders.
60 As regards call for tenders such as those concerned by the cases in the main proceedings, those provisions appear in Articles 60 and 62 of Directive 2014/25. Furthermore, as the Commission noted in its written observations, the two calls for tenders at issue in the main proceedings fall within the scope of that directive, in accordance with Article 1(1) and (2), Article 4(1), Article 11(1) and Article 15 of that directive, given that they concern the acquisition of supplies by contracting entities operating a network intended to provide a service to the public in the field of transport by bus, those supplies are intended for the performance of that activity and the value of the contracts at issue in the main proceedings exceeds the threshold laid down by that directive.
61 In the second place, it should be noted that although, under Article 88 of Regulation (EU) 2018/858 of the European Parliament and of the Council of 30 May 2018 on the approval and market surveillance of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles, amending Regulations (EC) No 715/2007 and (EC) No 595/2009 and repealing Directive 2007/46/EC (OJ 2018 L 151, p. 1), Directive 2007/46 was repealed by that regulation with effect from 1 September 2020, it is however apparent from the order for reference that the facts giving rise to the main proceedings took place before that date. Consequently, the provisions of Directive 2007/46 are the relevant provisions for the purpose of answering the questions referred for a preliminary ruling.
62 In the third place, it is apparent from the questions referred for a preliminary ruling that they relate only to legislation concerning spare parts for buses belonging to the types of components, within the meaning of Article 3(24) of Directive 2007/46, covered by the regulatory acts, within the meaning of Article 3(1) of that directive, which are listed in Annex IV to that directive.
63 By its first question, which is divided into two parts, the referring court asks, in essence, whether Article 10(2), Article 19(1) and Article 28(1) of Directive 2007/46 must be interpreted as precluding a contracting authority from accepting, in the context of a call for tenders for the supply of spare parts for buses intended for public service, a tender proposing components which are covered by the regulatory acts listed in Annex IV to Directive 2007/46, without being accompanied by a certificate confirming the type-approval of such spare parts and without submitting any proof of the actual existence of such approval, or, if, in the light of Articles 60 and 62 of Directive 2014/25, a declaration of equivalence to the type-approved spare parts, issued by the tenderer, is sufficient to permit such acceptance.
64 As regards the first part of that question, it should be noted, as a preliminary point, that Directive 2007/46 aims, as is apparent from recitals 2 and 3 of that directive, to ‘replace the Member States’ approval systems with a Community approval procedure based on the principle of total harmonisation’ and for ‘the technical requirements applicable to systems, components, separate technical units and vehicles [to] be harmonised and defined in regulatory acts’.
65 Thus, the first paragraph of Article 1 of Directive 2007/46 defines the subject matter of that directive as establishing ‘a harmonised framework containing the administrative provisions and general technical requirements for approval of all new vehicles within its scope and of the systems, components and separate technical units intended for those vehicles, with a view to facilitating their registration, sale and entry into service within the Community’.
66 According to the second paragraph of Article 1 of that directive, it ‘also establishes the provisions for the sale and entry into service of parts and equipment intended for vehicles approved in accordance with this Directive’.
67 Furthermore, in order to define the scope of the first question, it should be noted, first, that, although Directive 2007/46 distinguishes between several forms of type-approval, it may be inferred from the specific reference in that question to Articles 10, 19 and 28 of that directive that the first question refers only to EC type-approval, within the meaning of Article 3(5) of that directive, namely the act by which a Member State certifies that a type of vehicle, system, component or separate technical unit satisfies the relevant administrative provisions and technical requirements of that directive and of the regulatory acts listed in Annex IV or Annex XI thereto; the latter annex refers to special purposes vehicles and the provisions which are applicable to them.
68 Article 10 of Directive 2007/46 appears in Chapter IV of that directive, entitled ‘Conduct of EC type-approval procedures’, while Article 19 of that directive concerns, as is apparent from its title, the ‘EC type-approval mark’ and Article 28(1) of that directive, referred to by the referring court in its order for reference, refers to Article 19 of Directive 2007/46.
69 Second, Directive 2007/46 establishes, in Article 6, the procedures to be followed for the EC type-approval of vehicles and, in Article 7, the procedure to be followed for the EC type-approval of systems, components or separate technical units. Since it is apparent from the order for reference that the components at issue in the main proceedings were not approved with the type of vehicle for which they were proposed by the tenderers, but were presented as equivalent to the original components approved with that type of vehicle, it must be held that the provisions of Directive 2007/46 relating to EC type-approval of systems, components or separate technical units are relevant to the present case.
70 In that regard, it is apparent, first of all, from the wording of Article 10(2) of Directive 2007/46 that Member States grant a component EC type-approval in respect of a component which conforms to the particulars in the information folder and which meets the technical requirements laid down in the relevant separate directive or regulation, as prescribed in Annex IV.
71 Next, Article 19(1) of Directive 2007/46 provides that the manufacturer of a component is to affix to each component manufactured in conformity with the approved type the EC type-approval mark, required by the relevant separate directive or regulation.
72 Lastly, under Article 28(1) of Directive 2007/46, Member States are to permit the sale or entry into service of components only if those components satisfy the requirements of the relevant regulatory acts and are properly marked in accordance with Article 19 of that directive.
73 It is apparent, first, from a combined reading of Article 10(2), Article 19(1), Article 28(1) of that directive and Annex IV thereto that the components covered by the regulatory acts, within the meaning of Article 3(1) of that directive, listed in that annex, are subject to compulsory type-approval, provided that those regulatory acts provide for such approval.
74 Second, it follows, as the Advocate General observed in point 51 of his Opinion, that the instrument selected by the EU legislature in the context of Directive 2007/46 to establish that vehicle components comply with the requirements laid down in the regulatory acts listed in Annex IV, is that of type-approval.
75 Such an interpretation is confirmed by the main objective of the legislation on the approval of vehicles which is, in accordance with recital 14 of Directive 2007/46, ‘to ensure that new vehicles, components and separate technical units put on the market provide a high level of safety and environmental protection’. By means of an EC component type-approval, the Member State concerned certifies, as follows from the definition in Article 3(5) of Directive 2007/46, that that component satisfies the relevant technical requirements listed in Annex IV or Annex XI thereto, thereby confirming that that component provides a high level of safety and environmental protection.
76 It is true that it is apparent from Article 19(2) of Directive 2007/46 that EC type-approval is not required for every type of component. That provision concerns the situation where the affixing of an EC type-approval mark is not required, which means that certain types of components may be exempt from the obligation to obtain such approval.
77 However, that finding does not affect the conclusion referred to in paragraph 73 of the present judgment that the components covered by the regulatory acts listed in Annex IV to Directive 2007/46 are subject to compulsory type-approval, provided that those regulatory acts require such approval. Therefore, such components may be sold or entered into service, in accordance with Article 28(1) and Article 19(1) of that directive, only if they have been subject to such approval.
78 That conclusion is not called into question by the principles of equal treatment and impartiality, free competition and sound administration, to which the referring court has referred. As regards, first, the principle of equal treatment, it must be borne in mind that, in so far as a type of component must be approved, that obligation is incumbent on all manufacturers. As the Advocate General observed, in substance, in point 56 of his Opinion, that compulsory approval does not therefore stem from any discrimination to the detriment of manufacturers of spare parts equivalent to original spare parts by comparison with manufacturers of those original spare parts.
79 Second, as regards the effect of such a compulsory approval on competition, besides the fact that, as has just been established, that obligation is incumbent on any manufacturer of components, suffice it to note that, in accordance with Article 38(1) of Directive 2007/46, the manufacturer of a vehicle must make available to manufacturers of components for that type of vehicle all the particulars necessary for the EC type-approval of such components.
80 Third, concerning the principles of impartiality and sound administration, the referring court has not explained how those principles could be relevant for the purpose of interpreting the provisions of Directive 2007/46 referred to in the first question.
81 As regards the second part of the first question, which seeks to determine whether a contracting authority may accept, in the context of a call for tenders such as those referred to in that question, a tender proposing components covered by the regulatory acts listed in Annex IV to Directive 2007/46 which does not establish that those components have been subject to approval, as long as such a tender is accompanied by a declaration by the tenderer that those components are equivalent to the original approved parts, it must be noted, as does the Advocate General in point 59 of his Opinion, that the concepts of ‘type-approval’ and ‘equivalence’ have different contents.
82 As is apparent from Article 3(5) of Directive 2007/46, type-approval certifies, following appropriate checks carried out by the competent authorities, that, as regards the EC type approval of components, a type of component satisfies the requirements of Directive 2007/46, including the technical requirements set out in the regulatory acts listed in Annex IV to that directive.
83 The concept of ‘equivalence’ is not defined in Directive 2007/46 and designates, according to its ordinary meaning, the status of having the same value or function. Therefore, the equivalence of a component concerns the question whether that component has the same qualities as another component, whether or not the latter has been approved. As the Advocate General observed in point 62 of his Opinion, proof of type-approval is therefore not interchangeable with proof of equivalence, since a type-approved component can be non-equivalent to an original component referred to in a call for tenders.
84 Admittedly, it cannot be ruled out that non-type-approved components may in fact be equivalent to the original components referred to in the call for tenders at issue. However, since the EU legislature decided, as has been noted in paragraph 77 of the present judgment, that components of a type for which the regulatory acts listed in Annex IV to Directive 2007/46 require approval may be sold or entered into service, in accordance with Article 28(1) and Article 19(1) of that directive, only if that type of component has been subject to such approval, it must be found that, for those types of components, proof of approval cannot be replaced by a declaration of equivalence issued by the tenderer.
85 That finding is not called into question by the provisions of Articles 60 and 62 of Directive 2014/25, which refer to the technical specifications which may be included in a call for tenders such as those which gave rise to the main proceedings and the proof by which tenderers are able to demonstrate that their tenders meet those technical specifications.
86 It follows from Article 60(2) of that directive that the technical specifications which, under Article 60(1) of that directive, define the characteristics required of the works, services or supplies referred to in that directive, afford economic operators equal access to the procurement procedure and do not have the effect of creating unjustified obstacles to the opening up of public procurement to competition.
87 Article 60(4) of Directive 2014/25 allows, on an exceptional basis, technical specifications to refer to ‘trade marks, patents, types or a specific origin or production’, if that is necessary to provide a sufficiently precise and intelligible description of the subject matter of the contract, and provided that such a reference is accompanied by the words ‘or equivalent’, an option which was relied on in the calls for tenders which gave rise to the main proceedings.
88 In such a case, Article 60(5) of Directive 2014/25 allows the tenderer to prove that the solutions which it proposes satisfy in an equivalent manner the requirements defined in the technical specifications ‘by any appropriate means, including the means of proof referred to in Article 62’ of that directive, which includes, in addition to the means referred to in Article 62(1) of that directive, such as a certificate issued by a conformity assessment body, other ‘appropriate means of proof’ within the meaning of Article 62(2) of that directive.
89 As is also apparent from recital 83 of Directive 2014/25, those provisions seek to ensure that the technical specifications are drawn up in terms of functional and performance requirements and to prevent those technical specifications from artificially narrowing down competition through requirements that favour a specific economic operator by mirroring key characteristics of the supplies, services or works habitually offered by that economic operator.
90 However, it should be noted that, in accordance with recital 56 thereof, Directive 2014/25 cannot disregard mandatory requirements imposed by other rules of EU law concerning, inter alia, safety and environmental protection, such as the approval requirement laid down, for the same reasons, by Directive 2007/46.
91 Therefore, as the Advocate General observes in point 80 of his Opinion, Directive 2014/25 must not prevent the application of Directive 2007/46 inasmuch as that directive seeks, in accordance with recital 3 thereof, to ensure a high level of road safety, health protection, environmental protection, energy efficiency and protection against unauthorised use. To the extent that Directive 2007/46 requires, with a view to attaining those very objectives, that certain vehicle spare parts be type-approved, that requirement becomes mandatory and cannot be circumvented by recourse to Directive 2014/25.
92 In the main proceedings, the calls for tenders related to the supply of components which could be Iveco original parts or equivalent parts. As has been pointed out in paragraph 77 of the present judgment, the components referred to in the regulatory acts listed in Annex IV to Directive 2007/46, which are subject to compulsory type-approval, may be sold or entered into service only if they have been subject to such approval.
93 Consequently, in order to satisfy the mandatory requirements laid down by Directive 2007/46, since the components are subject to compulsory type-approval, only components which have been subject to such approval and may therefore be marketed, can be regarded as equivalent within the meaning of the terms of those calls for tenders.
94 In the light of the foregoing considerations, the answer to the first question is that Article 10(2), Article 19(1) and Article 28(1) of Directive 2007/46 must be interpreted as precluding a contracting authority from accepting, in the context of a call for tenders for the supply of spare parts for buses intended for public service, a tender proposing components belonging to a type of component covered by the regulatory acts listed in Annex IV to Directive 2007/46, without being accompanied by a certificate confirming the type-approval of such a component and without submitting any proof of the actual existence of such approval, provided that those regulatory acts provide for such approval.
95 By its second question, the referring court asks, in essence, whether Articles 60 and 62 of Directive 2014/25 must be interpreted as precluding, in the light of the definition of the term ‘manufacturer’ in Article 3(27) of Directive 2007/46, a contracting authority from accepting, in the context of a call for tenders for the supply of spare parts for buses intended for public service, as proof of the equivalence of components, covered by the regulatory acts listed in Annex IV to that directive and offered by the tenderer, a declaration of equivalence issued by that tenderer, where that tenderer, while describing itself as a manufacturer of those components, is merely a reseller or dealer.
96 As the Court pointed out, in its judgment of 12 July 2018, VAR and ATM (C‑14/17, EU:C:2018:568, paragraph 35), as regards the interpretation of Article 34 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), ‘when the technical specifications in the contract documentation refer to a specific mark, origin or production, the contracting authority must require the tenderer to submit, already in its tender, proof that the products which it proposes are equivalent to those defined in the technical specifications.’
97 In that judgment, the Court also stated that the contracting authority ‘has a discretion in determining the means that may be used by tenderers to prove such equivalence in their tenders. That discretion must, however, be exercised in such a way that the means of proof allowed by the contracting entity actually enable that entity to carry out a meaningful assessment of the tenders submitted to it and do not go beyond what is necessary in order to do so’.
98 The same interpretation must be adopted in respect of Articles 60 and 62 of Directive 2014/25, which replaced Directive 2004/17, since those articles require, like Article 34 of the latter directive, that a tenderer wishing to rely on the option to propose products equivalent to those defined by reference to a specific mark, origin or production already provide, in its tender, by any appropriate means, proof of the equivalence of the products concerned.
99 It follows from that case-law that, notwithstanding the contracting authority’s discretion in that regard, the means of proof accepted by it must enable it to carry out an effective assessment of the tender in order to determine whether it complies with the technical specifications referred to in the call for tenders in question.
100 In order to be considered an ‘appropriate means’, within the meaning of Article 60(5) and Article 62(2) of Directive 2014/25, a declaration of equivalence must therefore be issued by a body which is able to guarantee such equivalence, which means that that body assumes technical responsibility for the components in question and possesses the means necessary to ensure the quality of those components. Those conditions can be satisfied only by the producer or manufacturer of those components.
101 Such an interpretation is confirmed by Article 62(2) of Directive 2014/25, which provides that an appropriate means of proof may be a ‘technical dossier of the manufacturer’, which means that that proof is issued by the manufacturer of the spare part in question. That interpretation is also consistent with Article 1(u) of Regulation No 1400/2002, according to which, for the purposes of that regulation, ‘spare parts of matching quality’ meant ‘exclusively spare parts made by any undertaking which can certify at any moment that the parts in question match the quality of the components which are or were used for the assembly of the motor vehicles in question’. Although that regulation expired on 31 May 2010, Article 1(u) thereof confirmed that, in order to be relevant, a declaration of equivalence had to be made by the manufacturer.
102 Furthermore, under Article 3(27) of Directive 2007/46, the term ‘manufacturer’ is defined as ‘the person or body who is responsible to the approval authority for all aspects of the type-approval or authorisation process and for ensuring conformity of production’; that person or body does not necessarily have to intervene directly at all stages of the construction of a vehicle, system, component or separate technical unit subject to approval.
103 Although that definition refers only to vehicles and spare parts which are subject to approval, it provides useful guidance for determining who may be regarded as the ‘manufacturer’ of a component, in order to examine whether a declaration of equivalence issued by a person describing itself as a ‘manufacturer’ of that component may constitute an appropriate means of proof. It is apparent from that definition that, in order to be classified as a ‘manufacturer’ of a component, an undertaking does not necessarily have to intervene directly at all stages of the construction of that component.
104 The definition of the terms ‘original parts or equipment’ in Article 3(26) of Directive 2007/46, according to which ‘It is presumed unless the contrary is proven, that parts constitute original parts if the part manufacturer certifies that the parts match the quality of the components used for the assembly of the vehicle in question and have been manufactured according to the specifications and production standards of the vehicle manufacturer’ is also useful in that context.
105 It is apparent from that definition that, in order to be able to demonstrate that a spare part may be regarded as an original part, a declaration to that effect must be issued by the manufacturer of that component, notwithstanding the fact that the construction of that component was carried out in accordance with the specifications and production standards laid down by the manufacturer of the vehicle for which it is intended.
106 Accordingly, it must be found that, in order to be considered an appropriate means of proof, in the context of a call for tenders such as those which gave rise to the main proceedings, a declaration of equivalence of a component must be issued by the manufacturer of that component, even though that manufacturer does not necessarily have to intervene directly at all stages of the construction of that component.
107 By contrast, a declaration of equivalence from a reseller or dealer cannot be regarded as capable of constituting an appropriate means of proof.
108 Although it is for the referring court to determine whether, in the cases in the main proceedings, tenderers may be classified as ‘manufacturers’ of the components which they proposed, it must be stated, in order to give a useful answer to that court, that, contrary to what certain parties which took part in the procedure before the Court have argued, the fact that a tenderer manufactures spare parts other than those covered by the call for tenders at issue, whether that tenderer is registered with a chamber of commerce or its activity has been the subject of quality certification, is irrelevant for the purpose of determining whether that tenderer may be considered the manufacturer of the components which it proposes in its tender.
109 Furthermore, the argument that a broader interpretation of the concept of ‘manufacturer’ is necessary because, under certain EU directives on consumer protection, and in particular Article 1(2)(d) of Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (OJ 1999 L 171, p. 12) and Article 2(4) of Directive (EU) 2019/771 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the sale of goods, amending Regulation (EU) 2017/2394 and Directive 2009/22/EC, and repealing Directive 1999/44/EC (OJ 2019 L 136, p. 28), the concept of ‘producer’ is to be understood as including the operator who merely markets the product, placing its name on it, without having materially participated in the construction process, must also be disregarded. That legislation seeks in particular to ensure the protection of consumers, as is apparent from Article 1(1) of Directive 1999/44 and Article 1 of Directive 2019/771, and is therefore not relevant for the purposes of interpreting EU public procurement legislation.
110 Lastly, it should be recalled, as is apparent from the case-law cited in paragraph 96 of the present judgment, that proof of the equivalence of the products proposed by a tenderer, in relation to those defined in the technical specifications set out in the call for tenders, must already be provided in the tender and that that proof actually enables the contracting entity to carry out a meaningful assessment of the tenders submitted to it.
111 Having regard to all the foregoing considerations, the answer to the second question is that Articles 60 and 62 of Directive 2014/25 must be interpreted, in the light of the definition of the term ‘manufacturer’ in Article 3(27) of Directive 2007/46, as precluding a contracting authority from accepting, in the context of a call for tenders for the supply of spare parts for buses intended for public service, as proof of the equivalence of components, covered by the regulatory acts listed in Annex IV to Directive 2007/46 and proposed by the tenderer, a declaration of equivalence issued by that tenderer where that tenderer cannot be regarded as being the manufacturer of those components.
112 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.