Case C‑42/13

Cartiera dell’Adda SpA

v

CEM Ambiente SpA

(Request for a preliminary ruling from the Tribunale amministrativo regionale per la Lombardia)

‛Public procurement — Principles of equal treatment and transparency — Directive 2004/18/EC — Grounds for excluding a tenderer from participating — Article 45 — The personal situation of the candidate or tenderer — Compulsory statement concerning the person designated as ‘technical director’ — Statement not included with the tender — Exclusion from the contract without any possibility of remedying that omission’

Summary — Judgment of the Court (Tenth Chamber) 6 November 2014

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Questions referred by a court delivering decisions which may be appealed under domestic law — Existence of a judgment of a higher court having the authority of res judicata which the referring court considers to be at odds with EU law — Admissibility

   (Art. 267 TFEU)

2. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Jurisdiction of the national court — Establishing and assessing the facts of the dispute — The need to refer a question for a preliminary ruling and relevance of the questions raised — Assessment by the national court — Clearly irrelevant questions and hypothetical questions put in a context which precludes any useful answer — Questions bearing no relation to the subject matter of the dispute in the main proceedings

   (Art. 267 TFEU)

3. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Principle of equal treatment of tenderers — Obligation of transparency — Personal situation of a candidate or tenderer — An economic operator who has failed to comply with a requirement laid down in the contract documentation excluded from participating in a contract — Lawfulness — Whether account may be taken of the fact that it may be possible at a later stage to rectify the omission — Not possible

   (European Parliament and Council Directive 2004/18, Arts 2 and 45)

1.  A court which is not ruling at final instance must be free, if it considers that a higher court’s legal ruling could lead it to give a judgment contrary to EU law, to refer to the Court of Justice questions which concern it.

   (see para. 27)

2.  See the text of the decision.

   (see para. 29)

3.  Article 45 of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, as amended by Regulation No 1177/2009, read in conjunction with Article 2 of the directive, and the principle of equal treatment and the obligation of transparency must be interpreted as not precluding the exclusion of an economic operator from a procurement procedure on the ground that the operator has failed to comply with the requirement laid down in the contract documentation to annex to his bid, on pain of exclusion, a statement to the effect that the person designated in the bid as the operator’s technical director has not been the subject of criminal proceedings or a conviction, even where, at a date after the expiry of the deadline for submitting bids, such a statement has been provided to the contracting authority or it is shown that the person in question was identified as the technical director in error.

   (see para. 50, operative part)

Case C‑42/13

Cartiera dell’Adda SpA

v

CEM Ambiente SpA

(Request for a preliminary ruling from the Tribunale amministrativo regionale per la Lombardia)

‛Public procurement — Principles of equal treatment and transparency — Directive 2004/18/EC — Grounds for excluding a tenderer from participating — Article 45 — The personal situation of the candidate or tenderer — Compulsory statement concerning the person designated as ‘technical director’ — Statement not included with the tender — Exclusion from the contract without any possibility of remedying that omission’

Summary — Judgment of the Court (Tenth Chamber) 6 November 2014

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Questions referred by a court delivering decisions which may be appealed under domestic law — Existence of a judgment of a higher court having the authority of res judicata which the referring court considers to be at odds with EU law — Admissibility

   (Art. 267 TFEU)

2. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Jurisdiction of the national court — Establishing and assessing the facts of the dispute — The need to refer a question for a preliminary ruling and relevance of the questions raised — Assessment by the national court — Clearly irrelevant questions and hypothetical questions put in a context which precludes any useful answer — Questions bearing no relation to the subject matter of the dispute in the main proceedings

   (Art. 267 TFEU)

3. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Principle of equal treatment of tenderers — Obligation of transparency — Personal situation of a candidate or tenderer — An economic operator who has failed to comply with a requirement laid down in the contract documentation excluded from participating in a contract — Lawfulness — Whether account may be taken of the fact that it may be possible at a later stage to rectify the omission — Not possible

   (European Parliament and Council Directive 2004/18, Arts 2 and 45)

1.  A court which is not ruling at final instance must be free, if it considers that a higher court’s legal ruling could lead it to give a judgment contrary to EU law, to refer to the Court of Justice questions which concern it.

   (see para. 27)

2.  See the text of the decision.

   (see para. 29)

3.  Article 45 of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, as amended by Regulation No 1177/2009, read in conjunction with Article 2 of the directive, and the principle of equal treatment and the obligation of transparency must be interpreted as not precluding the exclusion of an economic operator from a procurement procedure on the ground that the operator has failed to comply with the requirement laid down in the contract documentation to annex to his bid, on pain of exclusion, a statement to the effect that the person designated in the bid as the operator’s technical director has not been the subject of criminal proceedings or a conviction, even where, at a date after the expiry of the deadline for submitting bids, such a statement has been provided to the contracting authority or it is shown that the person in question was identified as the technical director in error.

   (see para. 50, operative part)