Judgment of the Court (Grand Chamber) of 24 May 2016 (request for a preliminary ruling from Klagenævnet for Udbud — Denmark) — MT Højgaard A/S, Züblin A/S v Banedanmark

(Case C-396/14) (1)

((Reference for a preliminary ruling - Article 267 TFEU - Jurisdiction of the Court - Status of the referring body as a court or tribunal - Procurement procedure in railway infrastructure sector - Negotiated procedure - Directive 2004/17/EC - Article 10 - Article 51(3) - Principle of equal treatment of tenderers - Group composed of two companies and admitted as such as a tenderer - Tender submitted by one of the two companies, in its own name, the other company having been declared insolvent - Company considered to be capable, by itself, of being admitted as a tenderer - Contract awarded to that company))

(2016/C 260/03)

Language of the case: Danish

Referring court

Klagenævnet for Udbud

Parties to the main proceedings

Applicants: MT Højgaard A/S, Züblin A/S

Defendant: Banedanmark

Operative part of the judgment

The principle of equal treatment of economic operators, stated in Article 10 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, read together with Article 51 of that directive, must be interpreted as meaning that a contracting entity is not in breach of that principle where it permits one of two economic operators who formed part of a group of undertakings that had, as such, been invited to submit tenders by that contracting entity, to take the place of that group following the group’s dissolution and to take part, in its own name, in a negotiated procedure for the award of a public contract, provided that it is established, first, that that economic operator by itself meets the requirements laid down by the contracting entity and, second, that the continuation of its participation in that procedure does not mean that other tenderers are placed at a competitive disadvantage.

(1)  OJ C 388, 3.11.2014.