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Document 62016CO0162
Order of the Court (Sixth Chamber) of 10 November 2016.
Spinosa Costruzioni Generali SpA and Melfi Srl v Comune di Monteroduni.
Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Public procurement — Directive 2004/18/EC — Directive 2014/24/EU — Participation in a tendering procedure — Tenderer having failed to refer in the tender to the business charges relating to safety and security at work — Judicial obligation to include such a reference — Exclusion from the contract without the possibility of rectifying that omission.
Case C-162/16.
Order of the Court (Sixth Chamber) of 10 November 2016.
Spinosa Costruzioni Generali SpA and Melfi Srl v Comune di Monteroduni.
Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Public procurement — Directive 2004/18/EC — Directive 2014/24/EU — Participation in a tendering procedure — Tenderer having failed to refer in the tender to the business charges relating to safety and security at work — Judicial obligation to include such a reference — Exclusion from the contract without the possibility of rectifying that omission.
Case C-162/16.
Court reports – general – 'Information on unpublished decisions' section
Order of the Court (Sixth Chamber) of 10 November 2016 —
Spinosa Costruzioni Generali and Melfi
(Case C‑162/16) ( 1 )
(Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Public procurement — Directive 2004/18/EC — Directive 2014/24/EU — Participation in a tendering procedure — Tenderer having failed to refer in the tender to the business charges relating to safety and security at work — Judicial obligation to include such a reference — Exclusion from the contract without the possibility of rectifying that omission)
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1. |
Questions referred for a preliminary ruling—Questions identical to those already ruled on in the case-law—Application of Article 99 of the Rules of Procedure (Art. 267 TFEU; Rules of Procedure of the Court of Justice, Art. 99) (see paras 16-18) |
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2. |
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—Exclusion of an economic operator which has not complied with an obligation which was not expressly laid down in the contract documentation or in the national law from participating in a contract—No possibility of rectifying that omission—Not permissible (European Parliament and Council Directive 2004/18, Art. 27(1) and 49 to 51) (see paras 29-32, operative part) |
Operative part
The principle of equality of treatment and the duty of transparency, as implemented by 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, must be interpreted as precluding the exclusion of a tenderer from a procedure for the award of a public works contract as a result of the tender’s failure to comply with a requirement to indicate clearly in the tender the business charges relating to safety and security at work — for which the penalty for non-compliance is exclusion from the procedure — a requirement which arises, not expressly from the procurement documents or from national legislation, but from an interpretation of that legislation and the filling of gaps in those documents by the national court adjudicating at last instance. The principles of equality of treatment and of proportionality must also be interpreted as not precluding such a tenderer from being afforded the opportunity of remedying the situation and satisfying that requirement within a time limit set by the awarding authority.
( 1 ) OJ C 200, 6.6.2016.