J is a trader operating under his company name, and K. Reisen is a bus transport company with limited liability of which J is the managing director and sole shareholder. Both J and K. Reisen submitted tenders relating to a contract notice for the award, by open procedure, of a public contract for public transport bus services through the same person, namely J.
J and K. Reisen were informed that their tenders had been excluded for breach of competition rules insofar as they had been drafted by the same person.
After unsuccessfully lodging a complaint, J and K. Reisen brought an action before the Vergabekammer Südbayern, which upheld that action and ordered the public authority to reinstate the tenders submitted by the two tenderers in the procedure for the award of the contract in question.
The public authority brought an appeal against that decision before the Bayerisches Oberstes Landesgericht, which decided to refer three questions to the Court of Justice for a preliminary ruling.
According to point (d) of 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 participating 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.
By means of its first question, the referring court is asking, in essence, whether the aforementioned article only covers cases where there are sufficiently plausible indications to conclude that economic operators have infringed Article 101 TFEU.
In its judgment of 15 September 2022 in Case C-416/21, the Court of Justice concluded that point (d) of the first subparagraph of Article 57(4) of Directive 2014/24 has a broader scope than Article 101 TFEU. The first provision also covers economic operators which have entered into anticompetitive agreements that do not fall within Article 101 TFEU. Therefore, the mere fact that such an agreement between two economic operators does not fall within Article 101 TFEU does not prevent it from being covered by point (d) of the first subparagraph of Article 57(4) of Directive 2014/24.
The Court of Justice emphasised that point (d) of the first subparagraph of Article 57(4) of Directive 2014/24 necessarily presupposes that there is a common intention on the part of at least two different economic operators.
By means of its second and third questions, the referring court is asking, in essence, whether Article 57(4) of Directive 2014/24 should be interpreted as meaning that Article 57(4) exhaustively regulates the optional grounds for exclusion, which prevents the principle of equal treatment from precluding the award of the contract in question to economic operators which constitute a separate economic unit and whose tenders, although submitted separately, are neither autonomous nor independent.
Firstly, the Court of Justice states that Article 57(4) of Directive 2014/24 exhaustively lists the optional grounds for exclusion capable of justifying the exclusion of an economic operator from participating in a procurement procedure for reasons based on objective factors relating to its professional qualities, a conflict of interest or a distortion of competition that might arise from its involvement in the preparation of such procedure.
Furthermore, the Court of Justice states that the exhaustive listing of optional grounds for exclusion does not, however, prevent the principle of equal treatment, provided for in Article 36(1) of Directive 2014/25, from precluding the award of the contract in question to economic operators which constitute an economic unit and whose tenders, although submitted separately, are neither autonomous nor independent.
The Court of Justice leaves it to the national court to determine whether the tenders at issue have been submitted autonomously and independently.
Please contact Peter Teerlinck or Raluca Gherghinaru for further information about this case and/or for general legal advice relating to public procurement.