Case C‑470/13

Generali-Providencia Biztosító Zrt

v

Közbeszerzési Hatóság Közbeszerzési Döntőbizottság

(Request for preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság)

‛Reference for a preliminary ruling — Public procurement — Contracts falling below the threshold laid down in Directive 2004/18/EC — Articles 49 TFEU and 56 TFEU — Applicability — Certain cross-border interest — Grounds for exclusion from a tendering procedure — Exclusion of an economic operator having committed an infringement of national competition rules, established by a judgment given not more than five years ago — Lawfulness — Proportionality’

Summary — Judgment of the Court (Tenth Chamber), 18 December 2014

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Provisions of EU law rendered directly and unconditionally applicable by national law to situations outside their scope — Included

   (Art. 267 TFEU; European Parliament and Council Directive 2004/18, Art. 7)

2. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Scope — Contract of a lower value than the threshold laid down by the directive — Not included — Application of the fundamental rules and general principles of the TFEU — Condition — Contract having a certain cross-border interest

   (European Parliament and Council Directive 2004/18, Art. 7)

3. Questions referred for a preliminary ruling — Admissibility — Need to provide the Court with sufficient information on the factual and legislative context — Scope of the obligation in the field of public procurement

   (Art. 267 TFEU; Rules of Procedure of the Court of Justice, Art. 94)

4. Freedom of establishment — Freedom to provide services — Public procurement procedures — Obligations of the contracting authorities — Compliance with the principle of equal treatment and the obligation of transparency

   (Arts 49 TFEU and 56 TFEU)

5. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Award of contracts — Grounds for exclusion from participation in a tender procedure — Grave professional misconduct — Meaning — Interpretation — Commission of an infringement of competition law established by a judgment having the force of res judicata — Included

   (Arts 49 TFEU and 56 TFEU; European Parliament and Council Directive 2004/18, Arts 7 and 45(2)(d))

1.  See the text of the decision.

   (see paras 22, 23, 25)

2.  See the text of the decision.

   (see para. 27)

3.  See the text of the decision.

   (see paras 28, 29)

4.  See the text of the decision.

   (see paras 31, 32)

5.  Articles 49 TFEU and 56 TFEU do not preclude the application of national legislation excluding the participation in a tendering procedure of an economic operator who has committed an infringement of competition law, established by a judicial decision having the force of res judicata, for which a fine was imposed.

   The notion of professional misconduct, for the purposes of Article 45(2)(d) 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 Commission Regulation (EC) No 1177/2009 covers all wrongful conduct which has an impact on the professional credibility of the operator at issue and not only the infringements of ethical standards in the strict sense of the profession to which that operator belongs. In those circumstances, the commission of an infringement of the competition rules, in particular where that infringement was penalised by a fine, constitutes a cause for exclusion under Article 45(2)(d).

   Moreover, if such a cause for exclusion is possible under Directive 2004/18, it must a fortiori be regarded as justified in relation to public contracts which fall short of the threshold defined in Article 7 of that directive and which are consequently not subject to the strict special procedures laid down in that directive.

   (see paras 34-36, 39, operative part)

Case C‑470/13

Generali-Providencia Biztosító Zrt

v

Közbeszerzési Hatóság Közbeszerzési Döntőbizottság

(Request for preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság)

‛Reference for a preliminary ruling — Public procurement — Contracts falling below the threshold laid down in Directive 2004/18/EC — Articles 49 TFEU and 56 TFEU — Applicability — Certain cross-border interest — Grounds for exclusion from a tendering procedure — Exclusion of an economic operator having committed an infringement of national competition rules, established by a judgment given not more than five years ago — Lawfulness — Proportionality’

Summary — Judgment of the Court (Tenth Chamber), 18 December 2014

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Provisions of EU law rendered directly and unconditionally applicable by national law to situations outside their scope — Included

   (Art. 267 TFEU; European Parliament and Council Directive 2004/18, Art. 7)

2. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Scope — Contract of a lower value than the threshold laid down by the directive — Not included — Application of the fundamental rules and general principles of the TFEU — Condition — Contract having a certain cross-border interest

   (European Parliament and Council Directive 2004/18, Art. 7)

3. Questions referred for a preliminary ruling — Admissibility — Need to provide the Court with sufficient information on the factual and legislative context — Scope of the obligation in the field of public procurement

   (Art. 267 TFEU; Rules of Procedure of the Court of Justice, Art. 94)

4. Freedom of establishment — Freedom to provide services — Public procurement procedures — Obligations of the contracting authorities — Compliance with the principle of equal treatment and the obligation of transparency

   (Arts 49 TFEU and 56 TFEU)

5. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Award of contracts — Grounds for exclusion from participation in a tender procedure — Grave professional misconduct — Meaning — Interpretation — Commission of an infringement of competition law established by a judgment having the force of res judicata — Included

   (Arts 49 TFEU and 56 TFEU; European Parliament and Council Directive 2004/18, Arts 7 and 45(2)(d))

1.  See the text of the decision.

   (see paras 22, 23, 25)

2.  See the text of the decision.

   (see para. 27)

3.  See the text of the decision.

   (see paras 28, 29)

4.  See the text of the decision.

   (see paras 31, 32)

5.  Articles 49 TFEU and 56 TFEU do not preclude the application of national legislation excluding the participation in a tendering procedure of an economic operator who has committed an infringement of competition law, established by a judicial decision having the force of res judicata, for which a fine was imposed.

   The notion of professional misconduct, for the purposes of Article 45(2)(d) 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 Commission Regulation (EC) No 1177/2009 covers all wrongful conduct which has an impact on the professional credibility of the operator at issue and not only the infringements of ethical standards in the strict sense of the profession to which that operator belongs. In those circumstances, the commission of an infringement of the competition rules, in particular where that infringement was penalised by a fine, constitutes a cause for exclusion under Article 45(2)(d).

   Moreover, if such a cause for exclusion is possible under Directive 2004/18, it must a fortiori be regarded as justified in relation to public contracts which fall short of the threshold defined in Article 7 of that directive and which are consequently not subject to the strict special procedures laid down in that directive.

   (see paras 34-36, 39, operative part)