Judgment of the Court (Fourth Chamber) of 16 January 2025 (request for a preliminary ruling from the ondernemingsrechtbank Gent, afdeling Gent – Belgium) – DYKA Plastics NV v Fluvius System Operator CV

(Case C-424/23, (1) DYKA Plastics)

(Reference for a preliminary ruling - Award of public works contracts - Directive 2014/24/EU - Article 42 - Technical specifications - Formulation - Whether the list at Article 42(3) is exhaustive in nature - Invitation to tender requiring drainage work to be carried out using pipes made of vitrified clay and made of concrete - Plastic pipes excluded - Article 42(4) - Reference to a type or to a specific production - Situations in which a reference must be accompanied by the words ‘or equivalent’)

(C/2025/1396)

Language of the case: Dutch

Referring court

Ondernemingsrechtbank Gent, afdeling Gent

Parties to the main proceedings

Applicant: DYKA Plastics NV

Defendant: Fluvius System Operator CV

Operative part of the judgment

Article 42(3) of 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

must be interpreted as meaning that the list, in that provision, of the methods for formulating technical specifications is exhaustive, without prejudice to mandatory national technical rules which are compatible with EU law, as referred to in that provision, and without prejudice to Article 42(4) of that directive.

Article 42(4) of Directive 2014/24

must be interpreted as meaning that contracting authorities may not, without adding the words ‘or equivalent’, state, in the technical specifications of a public works contract, the materials of which the products proposed by the tenderers must be made, unless the use of a particular material follows inevitably from the subject matter of the contract, it not being possible to contemplate an alternative based on a different technical solution.

Article 42(2) of Directive 2014/24, read in conjunction with Article 18(1) of that directive,

must be interpreted as meaning that the obligation to afford economic operators equal access to public procurement procedures and the prohibition on creating unjustified obstacles to the opening up of public procurement to competition, set out in the latter provision, are necessarily infringed where a contracting authority eliminates certain undertakings or certain products by means of a technical specification which is incompatible with the rules set out in Article 42(3) and (4) of that directive.

(1) OJ C C/2023/1125.