In its judgment of 8 February 2018 in Lloyds of London (C-144/17), the Court of Justice confirmed settled case-law stating that “the automatic exclusion of candidates or tenderers that are in a relationship of control or of association with other competitors goes beyond that which is necessary to prevent collusive behaviour and, as a result, to ensure the application of the principle of equal treatment and compliance with the obligation of transparency”.
The Court has already held that groups of undertakings can have different forms and objectives, which do not necessarily preclude controlled undertakings from enjoying a certain autonomy in the conduct of their commercial policy and their economic activities, inter alia, in the area of their participation in the award of public contracts.
As a result, observance of the principle of proportionality requires that the contracting authority examines and assesses the facts, in order to determine whether the relationship between two entities has actually influenced the respective content of the tenders submitted in the same tendering procedure. The finding of such influence, in any form, is sufficient for those undertakings to be excluded from the procedure.
In Lloyds of London, the Court held a functional approach with regard to the treatment of multiple bidding situations, and more in particular, to the exclusion of tenders on grounds of prohibition of multiple bidding.
The Court rules that the Italian legislation, which does not allow two syndicates of Lloyd’s of London to be excluded from participation in the same procedure for the award of a public service contract for insurance merely because their respective tenders were each signed by the General Representative of Lloyd’s of London of Italy but instead allows their exclusion if it appears, on the basis of unambiguous evidence, that their tenders were not drawn up independently, is in line with the principles of transparency, equal treatment and non-discrimination.
For further information on this case and/or for general legal advice relating to public procurement, please contact Peter Teerlinck or Raluca Gherghinaru.