Case C‑66/22

Infraestruturas de Portugal SA
and
Futrifer Indústrias Ferroviárias SA

Toscca – Equipamentos em Madeira Lda

(Request for a preliminary ruling from the Supremo Tribunal Administrativo)

Judgment of the Court (Grand Chamber) of 21 December 2023

(Reference for a preliminary ruling – Procedures for the award of public works contracts, public supply contracts and public service contracts – Directive 2014/24/EU – Point (d) of the first subparagraph of Article 57(4) – Award of public contracts in the transport sector – Directive 2014/25/EU – Article 80(1) – Facultative grounds for exclusion – Obligation to transpose – Economic operator entering into agreements aimed at distorting competition – Competence of the contracting authority – Impact of an earlier decision of a competition authority – Principle of proportionality – Article 47 of the Charter of Fundamental Rights of the European Union – Right to an effective remedy – Principle of sound administration – Obligation to state reasons)

Approximation of laws – Procedures for the award of public works contracts, public supply contracts and public service contracts – Directive 2014/24 – Award of contracts – Grounds for exclusion from participation in a tender procedure – Obligation to transpose – Scope

(European Parliament and Council Directive 2014/24, Art. 57(4), first subpara.)

(see paragraphs 49-58)
Approximation of laws – Procedures for awarding contracts in the water, energy, transport and postal services sectors – Directive 2014/25 – Award of contracts – Qualification and qualitative selection – Use of exclusion grounds and selection criteria provided for under Directive 2014/24/EU – Obligation to transpose – Scope

(European Parliament and Council Directive 2014/25, Art. 80(1), third subpara.)

(see paragraphs 59-61)
Approximation of laws – Procedures for the award of public works contracts, public supply contracts and public service contracts – Directive 2014/24 – Award of contracts – Grounds for exclusion from participation in a tender procedure – Conclusion by an operator of agreements with the aim of distorting competition – National legislation limiting the possibility of excluding a tender submitted by a tenderer due to significant evidence of conduct on the part of that tenderer that is liable to distort competition rules – Exclusion limited to the public procurement procedure in which that type of conduct has arisen – Not permissible

(European Parliament and Council Directive 2014/24, Art. 57(4), first subpara., point (d))

(see paragraphs 67-72, operative part 1)
Approximation of laws – Procedures for the award of public works contracts, public supply contracts and public service contracts – Directive 2014/24 – Award of contracts – Grounds for exclusion from participation in a tender procedure – Conclusion by an operator of agreements with the aim of distorting competition – National legislation which confers the power to decide to exclude economic operators from public procurement procedures, on the grounds of a breach of competition rules, solely on the national competition authority – Not permissible

(European Parliament and Council Directive 2014/24, Art. 57(4), first subpara., point (d))

(see paragraphs 74-80, 82-84, operative part 2)
Approximation of laws – Procedures for the award of public works contracts, public supply contracts and public service contracts – Directive 2014/24 – Award of contracts – Grounds for exclusion from participation in a tender procedure – Conclusion by an operator of agreements with the aim of distorting competition – Decision of the contracting authority as to the reliability of an economic operator, adopted pursuant to the ground for exclusion – Application of the principle of sound administration – Obligation to state reasons

(European Parliament and Council Directive 2014/24, Art. 57(4), first subpara., point (d))

(see paragraphs 87-91, operative part 3)

Résumé

Toscca is an economic operator that submitted a tender in the context of a public procurement procedure organised by Infraestruturas de Portugal for the purchase of creosoted pine sleepers and rods for use in the railway infrastructure sector; the public contract was awarded to Futrifer. Since its action seeking annulment of that award decision was dismissed, Toscca brought an appeal before the Tribunal Central Administrativo Norte (North Central Administrative Court, Portugal). That court gave judgment upholding that appeal, and ordered Infraestruturas de Portugal to award the contract to Toscca. That judgment was set aside, on grounds of a failure to state reasons, by the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal), which referred the case back to the Tribunal Central Administrativo Norte (North Central Administrative Court). That court delivered a second judgment, by way of which it confirmed the approach taken in its first judgment.

Appeals were brought against that second judgment by Infraestrutuas de Portugal and Futrifer before the Supremo Tribunal Administrativo (Supreme Administrative Court), which is the referring court. It states that, in 2019, Futrifer was ordered by the Autoridade da Concorrência (Competition Authority, Portugal) to pay a fine in respect of a breach of competition rules in the context of public procurement procedures, organised in 2014 and 2015, by the same contracting authority.

By its judgment, delivered by the Grand Chamber, the Court rules, first, on the existence of an obligation, for the Member States, to transpose the facultative grounds for exclusion provided for by Directives 2014/24 ( 1 ) and 2014/25. ( 2 ) Next, it clarifies the conditions in which contracting authorities may exercise their competence in order to exclude an economic operator from participating in a public procurement procedure on grounds of lack of reliability, on account of a breach of competition rules unrelated to the public procurement procedure concerned. It clarifies, finally, the obligation on the part of contracting authorities to state reasons for a decision as to the reliability of an economic operator, in the light of the facultative ground for exclusion linked to the involvement of such an operator in agreements aimed at distorting competition, provided for by Directive 2014/24.

Findings of the Court

As a preliminary point, the Court rules on the question whether Member States are under the obligation to transpose into their national law the facultative grounds for exclusion mentioned in Directive 2014/24, ( 3 ) and in the provision of Directive 2014/25 which refers to those grounds.

As regards, on the one hand, the facultative grounds for exclusion provided for by Directive 2014/24, the Court observes that, contrary to what is apparent from certain judgments of the Court, ( 4 ) the Member States are under the obligation to transpose those grounds into their national law. That obligation means that they must provide for either the option or the obligation for contracting authorities to apply those grounds. First of all, it is clear from the wording of the provision of Directive 2014/24 on the facultative grounds for exclusion that the choice as to the decision whether or not to exclude an economic operator from a public procurement procedure on one of those grounds falls to the contracting authorities, unless the Member States decide to transform that optional exclusion into an obligation to do so. Consequently, in order not to deprive such contracting authorities of, at the very least, the possibility of applying those grounds for exclusion, a Member State cannot omit those grounds from its national legislation transposing Directive 2014/24. Second, that interpretation is also confirmed by the context of the provision relating to facultative grounds for exclusion, in contrast with other provisions under that directive which offer the Member States a choice as to whether or not to transpose those provisions. In that connection, the Court points out that the choice left to the Member States in so far as concerns the conditions for application of the facultative grounds for exclusion ( 5 ) cannot be extended to the question whether or not those grounds are to be transposed into national law. Third, as to the objective pursued by Directive 2014/24 in so far as concerns the facultative grounds for exclusion, the Court points out that the EU legislature intended to confer on the contracting authorities, and on them alone, the task of assessing the integrity and reliability of economic operators participating in a public procurement procedure and, where necessary, to exclude any operators they deem unreliable.

As regards, on the other hand, Directive 2014/25, ( 6 ) the Court points out that the Member States must, in accordance with their obligation to transpose the first subparagraph of Article 80(1) of Directive 2014/25, make provision for the possibility for contracting entities to include those exclusion grounds amongst the objective exclusion criteria in procedures which fall within the scope of that directive, without prejudice to any decision on the part of those States consisting in requiring that those entities include those grounds amongst those criteria.

Having set out those clarifications, the Court rules, in the first place, on the facultative ground for exclusion linked to an economic operator entering into agreements aimed at distorting competition, provided for by Directive 2014/24. ( 7 ) The Court holds that that ground precludes national legislation which limits the possibility of excluding a tender from a tenderer on account of the existence of significant evidence of conduct on the part of that tenderer liable to distort competition rules in the public procurement procedure in the context of which that type of conduct has arisen. Such limitation is not apparent from the wording of the provision laying down that ground for exclusion. Furthermore, it is apparent from the context in which that provision occurs ( 8 ) that Directive 2014/24 permits, at any time during the procedure, contracting authorities to exclude or to be required by Member States to exclude an economic operator where it turns out that the economic operator is, in view of acts committed or omitted either before or during the procedure, in one of the situations covered by the grounds of exclusion provided for by that directive. Such an interpretation of that provision enables the contracting authority to ascertain the integrity and reliability of each of the economic operators, which integrity and reliability are liable to be cast into doubt not only in the event of the participation of such an operator in anticompetitive conduct in the context of that procedure, but also in the event of that operator’s participation in such conduct in the past.

In the second place, the Court points out that the facultative ground for exclusion linked to an economic operator entering into agreements aimed at distorting competition, provided for by Directive 2014/24, precludes national legislation which confers the power to decide to exclude economic operators from public procurement procedures, on the grounds of a breach of competition rules, solely on the national competition authority. Admittedly, where there is a specific procedure regulated by EU law or by national law for pursuing certain offences and in which the national competition authority is entrusted with carrying out investigations in this connection, the contracting authority must, within the context of the assessment of the evidence provided, rely in principle on the outcome of such a procedure. In that context, the decision of such a competition authority, finding that such an infringement has been committed and, on that ground, imposing a financial penalty on a tenderer, may take on particular significance, and all the more so if that penalty is accompanied by a temporary prohibition on participation in public procurement procedures. However, where such a decision may lead the contracting authority to exclude that economic operator from the public procurement procedure in question, conversely, the absence of such a decision can neither prevent nor exempt the contracting authority from carrying out such an assessment. That assessment should be carried out having regard to the principle of proportionality and taking into account all the relevant factors in order to determine whether the application of the facultative ground for exclusion linked to an economic operator entering into agreements aimed at distorting competition is justified. Accordingly, national legislation which ties the assessment of the integrity and reliability of tenderers to the findings in a decision of the national competition authority in relation to, in particular, future participation in public procurement procedures, undermines the discretion to be afforded to the contracting authority in the context of the application of the facultative grounds for exclusion provided for by Directive 2014/24.

In bringing that analysis to a close, the Court also specifies that the Member States cannot, in their legislation, restrict the scope of the facultative ground for exclusion linked to the participation of the economic operator concerned in anticompetitive conduct.

In the third place, the Court states that, in the light of the principle of sound administration, the decision of the contracting authority as to the reliability of an economic operator, adopted pursuant to the facultative ground for exclusion linked to an economic operator entering into agreements aimed at distorting competition, provided for by Directive 2014/24, must be reasoned. That obligation concerns, first, decisions by way of which the contracting authority excludes a tenderer by applying, in particular, such facultative ground for exclusion. Second, the contracting authority is subject to that obligation to state reasons for its decision when it finds that a tenderer is concerned by one of the facultative grounds for exclusion, but it nonetheless decides not to exclude that tenderer, for example, on the ground that such an exclusion would constitute a disproportionate measure. Such a decision affects the legal situation of all the other economic operators participating in the public procurement procedure in question, who must therefore be able to defend their rights, where applicable, by bringing an action against it.

( 1 ) Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65). The first subparagraph of Article 57(4) of Directive 2014/24 makes provision for the situations in which contracting authorities may exclude or may be required by Member States to exclude any economic operator from participation in a procurement procedure.

( 2 ) 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). The third subparagraph of Article 80(1) of Directive 2014/25 provides that, if Member States so request, the objective rules and criteria for exclusion are also to include the exclusion grounds listed in Article 57(4) of Directive 2014/24 on the terms and conditions set out in that article.

( 3 ) More specifically, by the first subparagraph of Article 57(4) of that directive.

( 4 ) Judgments of 19 June 2019, Meca (C‑41/18, EU:C:2019:507, paragraph 33); of 30 January 2020, Tim (C‑395/18, EU:C:2020:58, paragraphs 34 and 40); and of 3 June 2021, Rad Service and Others (C‑210/20, EU:C:2021:445, paragraph 28). By virtue of those of those judgments, the Member States may decide whether or not to transpose the facultative grounds for exclusion referred to in that provision.

( 5 ) Under Article 57(7) of Directive 2014/24.

( 6 ) More specifically, the third subparagraph of Article 80(1) of that directive.

( 7 ) Pursuant to the first subparagraph of Article 57(4) of Directive 2014/24, contracting authorities may exclude or may be required by Member States to exclude any economic operator from participation in a procurement procedure where the contracting authority has sufficiently plausible indications to conclude that the economic operator has entered into agreements with other economic operators aimed at distorting competition.

( 8 ) Inter alia, the second subparagraph of Article 57(5) of Directive 2014/24.