Case C‑396/14

MT Højgaard A/S

and

Züblin A/S

v

Banedanmark

(Request for a preliminary ruling from Klagenævnet for Udbud)

‛Reference for a preliminary ruling — Article 267 TFEU — Jurisdiction of the Court — Status of the referring body as a court or tribunal — Procurement procedure in railway infrastructure sector — Negotiated procedure — Directive 2004/17/EC — Article 10 — Article 51(3) — Principle of equal treatment of tenderers — Group composed of two companies and admitted as such as a tenderer — Tender submitted by one of the two companies, in its own name, the other company having been declared insolvent — Company considered to be capable, by itself, of being admitted as a tenderer — Contract awarded to that company’

Summary — Judgment of the Court (Grand Chamber), 24 May 2016

1. Questions referred for a preliminary ruling — Reference to the Court — National court or tribunal under Article 267 TFEU — Meaning —Klagenævnet for Udbud (Danish Public Procurement Complaints Board) — Included

   (Art. 267 TFEU)

2. Approximation of laws — Procurement procedures of entities operating in the water, energy, transport and postal services sectors — Directive 2004/17 — Award of contracts — Principles of equal treatment of tenderers and transparency — Scope — Contracting entity permitting the substitution of one of two economic operators that formed a group of undertakings invited to submit a tender in a negotiated procedure — Substitution following the dissolution of the tendering group — Whether permissible — Conditions

   (Directive 2004/17 of the European Parliament and the Council, Arts 10, 51 and 54(3))

1.  In order to assess whether a body making a reference is a ‘court or tribunal’, which is a question governed by EU law alone, the Court will take account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent.

   Klagenævnet for Udbud (the Danish Public Procurement Complaints Board) meets those criteria, including that of independence and must, therefore, be accorded the status of a ‘court or tribunal’, within the meaning of Article 267 TFEU. As regards the criterion of independence, first, that body acts as a third party in relation to the parties to the proceedings, in particular in relation to the authority that adopted the decision against which a complaint is brought before it. Second, the fact that the secretariat of that body is attached to the Ministry for Business and Growth is not such as to call into question that finding. Further, that body carries out its functions in a wholly independent manner, does not occupy a hierarchical or subordinate position and does not take orders or instructions from any source whatsoever.

   Last, as regards the independence of the members of that body, given the greater weight of the votes of its members who, as members of the judiciary, enjoy particular protection against dismissal, the fact that the expert members of that body do not enjoy the same protection cannot, in any event, call into question the independence of that body.

   (see paras 23, 25, 26, 31, 32)

2.  The principle of equal treatment of economic operators, stated in Article 10 of Directive 2004/17 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, read together with Article 51 of that directive, must be interpreted as meaning that a contracting entity is not in breach of that principle where it permits one of two economic operators who formed part of a group of undertakings that had, as such, been invited to submit tenders by that contracting entity, to take the place of that group following the group’s dissolution and to take part, in its own name, in a negotiated procedure for the award of a public contract, provided that it is established, first, that that economic operator by itself meets the requirements laid down by the contracting entity and, second, that the continuation of its participation in that procedure does not mean that other tenderers are placed at a competitive disadvantage.

   In that regard, the principle of equal treatment and the duty of transparency mean, in particular, that tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being assessed by the contracting authority, and constitute the basis of the EU rules on procedures for the award of public contracts. Further, the principle of equal treatment as between tenderers, the aim of which is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure, requires all tenderers to be afforded equality of opportunity when formulating their tenders, which therefore implies that the tenders of all competitors must be subject to the same conditions. A strict application of the principle of equal treatment of tenderers, as expressed in Article 10 of Directive 2004/17, read together with Article 51 of that directive, would lead to the conclusion that only those economic operators who have been pre-selected can in that capacity submit tenders and be awarded contracts.

   However, the requirement of legal and substantive identity of pre-selected economic operators and those who submit tenders may be qualified in order to ensure, in a negotiated procedure, adequate competition, as required by Article 54(3) of Directive 2004/17. If, however, an economic operator is to continue to participate in the negotiated procedure in its own name, following the dissolution of the group of which it formed part and which had been pre-selected by the contracting entity, that continued participation must take place in conditions which do not infringe the principle of equal treatment of the tenderers as a whole.

   (see paras 37-39, 41, 43, 48, operative part)