Case C‑440/13

Croce Amica One Italia Srl

v

Azienda Regionale Emergenza Urgenza (AREU)

(Request for a preliminary ruling from the Tribunale amministrativo regionale per la Lombardia)

‛Reference for a preliminary ruling — Public services contracts — Directive 2004/18/EC — Directive 89/665/EEC — Personal situation of the candidate or tenderer — Provisional award of the contract — Criminal investigations initiated in respect of the legal representative of the successful tenderer — Decision by the contracting authority not to proceed with the definitive award of the contract and to withdraw the invitation to tender — Judicial review’

Summary — Judgment of the Court (Fifth Chamber), 11 December 2014

1. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Invitation to tender withdrawn — National legislation under which it is possible to withdraw the invitation to tender under certain conditions — Lawfulness — Whether a contracting authority is under an obligation to carry an award procedure to its conclusion after appointing a candidate as successful tenderer — No such obligation

   (European Parliament and Council Directive 2004/18, Arts 41(1) 43 and 45)

2. Approximation of laws — Review procedures in respect of the award of public supply and public works contracts — Directive 89/665 — Invitation to tender withdrawn — Member States’ duty to provide for a review procedure — National legislation conferring on national courts the power to review whether a contracting authority’s decision not to award a public contract was expedient — Lawfulness

   (Council Directive 89/665, as amended by Directive 2007/66, Art. 1(1) third para.)

1.  Articles 41(1), 43 and 45 of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as meaning that, where the conditions for the application of the grounds for exclusion set out in Article 45 are not fulfilled, that article does not preclude the adoption by a contracting authority of a decision not to award a contract for which a procurement procedure has been held and not to proceed with the definitive award of the contract to the sole tenderer remaining in contention to whom the contract had been provisionally awarded.

   EU law does not preclude Member States from providing in their legislation for the possibility of adopting a decision to withdraw an invitation to tender. The grounds for such a decision may be based on reasons which reflect, inter alia, the assessment as to whether it is expedient, from the point of view of the public interest, to carry an award procedure to its conclusion, having regard, among other things, to any change that may arise in the economic context or factual circumstances, or indeed the needs of the contracting authority concerned. The grounds for such a decision may also relate to there being an insufficient degree of competition, due to the fact that, at the conclusion of the award procedure in question, only one tenderer was qualified to perform the contract. As a consequence, provided the principles of transparency and equal treatment are complied with, a contracting authority cannot be required to carry to its conclusion an award procedure that has been initiated and to award the contract in question, including where there remains only one tenderer in contention.

   (see paras 35-37, operative part 1)

2.  European Union public procurement law, in particular the third subparagraph of Article 1(1) of Directive 89/665 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 2007/66, must be interpreted as meaning that the review referred to in that provision constitutes a review of the lawfulness of decisions adopted by contracting authorities, the purpose of which is to ensure that the relevant rules of EU law or national provisions transposing those rules are complied with. It is not possible for such review to be confined to a simple examination of whether the decisions adopted by contracting authorities are arbitrary. On the other hand, that does not mean that it is not open to the national legislature to grant the competent national courts and tribunals the power to review whether a measure was expedient.

   In the absence of specific EU legislation in this field, the detailed provisions governing judicial review must be established by national procedural rules, subject to compliance with the principles of equivalence and effectiveness. Accordingly, the national legislature may grant the competent national courts and tribunals more extensive powers for the purpose of reviewing whether a measure was expedient.

   (see paras 45, 46, operative part 2)

Case C‑440/13

Croce Amica One Italia Srl

v

Azienda Regionale Emergenza Urgenza (AREU)

(Request for a preliminary ruling from the Tribunale amministrativo regionale per la Lombardia)

‛Reference for a preliminary ruling — Public services contracts — Directive 2004/18/EC — Directive 89/665/EEC — Personal situation of the candidate or tenderer — Provisional award of the contract — Criminal investigations initiated in respect of the legal representative of the successful tenderer — Decision by the contracting authority not to proceed with the definitive award of the contract and to withdraw the invitation to tender — Judicial review’

Summary — Judgment of the Court (Fifth Chamber), 11 December 2014

1. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Invitation to tender withdrawn — National legislation under which it is possible to withdraw the invitation to tender under certain conditions — Lawfulness — Whether a contracting authority is under an obligation to carry an award procedure to its conclusion after appointing a candidate as successful tenderer — No such obligation

   (European Parliament and Council Directive 2004/18, Arts 41(1) 43 and 45)

2. Approximation of laws — Review procedures in respect of the award of public supply and public works contracts — Directive 89/665 — Invitation to tender withdrawn — Member States’ duty to provide for a review procedure — National legislation conferring on national courts the power to review whether a contracting authority’s decision not to award a public contract was expedient — Lawfulness

   (Council Directive 89/665, as amended by Directive 2007/66, Art. 1(1) third para.)

1.  Articles 41(1), 43 and 45 of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as meaning that, where the conditions for the application of the grounds for exclusion set out in Article 45 are not fulfilled, that article does not preclude the adoption by a contracting authority of a decision not to award a contract for which a procurement procedure has been held and not to proceed with the definitive award of the contract to the sole tenderer remaining in contention to whom the contract had been provisionally awarded.

   EU law does not preclude Member States from providing in their legislation for the possibility of adopting a decision to withdraw an invitation to tender. The grounds for such a decision may be based on reasons which reflect, inter alia, the assessment as to whether it is expedient, from the point of view of the public interest, to carry an award procedure to its conclusion, having regard, among other things, to any change that may arise in the economic context or factual circumstances, or indeed the needs of the contracting authority concerned. The grounds for such a decision may also relate to there being an insufficient degree of competition, due to the fact that, at the conclusion of the award procedure in question, only one tenderer was qualified to perform the contract. As a consequence, provided the principles of transparency and equal treatment are complied with, a contracting authority cannot be required to carry to its conclusion an award procedure that has been initiated and to award the contract in question, including where there remains only one tenderer in contention.

   (see paras 35-37, operative part 1)

2.  European Union public procurement law, in particular the third subparagraph of Article 1(1) of Directive 89/665 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 2007/66, must be interpreted as meaning that the review referred to in that provision constitutes a review of the lawfulness of decisions adopted by contracting authorities, the purpose of which is to ensure that the relevant rules of EU law or national provisions transposing those rules are complied with. It is not possible for such review to be confined to a simple examination of whether the decisions adopted by contracting authorities are arbitrary. On the other hand, that does not mean that it is not open to the national legislature to grant the competent national courts and tribunals the power to review whether a measure was expedient.

   In the absence of specific EU legislation in this field, the detailed provisions governing judicial review must be established by national procedural rules, subject to compliance with the principles of equivalence and effectiveness. Accordingly, the national legislature may grant the competent national courts and tribunals more extensive powers for the purpose of reviewing whether a measure was expedient.

   (see paras 45, 46, operative part 2)