Procurement procedures of entities operating in the water, energy, transport and postal services sectors •
Case C-513/99 - Concordia Bus Finland Oy Ab, formerly Stagecoach Finland Oy Ab v Helsingin kaupunki and HKL-Bussiliikenne, also a
public procurement ruling, delivered 17 September 2002. The
City of Helsinki began progressively tendering for the operation of
bus services across the whole city network in 1997.
Concordia Bus Finland challenged the inclusion of environmental factors in the evaluation criteria. One of the objections of Concordia Bus was that the criteria were discriminatory because the Community’s own bus company HKL was the only company with gas-powered vehicles that could comply with the emission levels set. The court ruled that the fact that one of a set of various award criteria imposed by the contracting authority could only be met by a small number of companies did not in itself make this discriminatory. See Public Power Corporation#Legal issues. •
Case C-331/04: ATI EAC and Others v ACTV Venezia SpA and others: see
below in the public procurement section •
Joined Cases C-21/03 and C-34/03: Fabricom SA v État belge: a case regarding participation in a tender exercise by an organisation which has contributed to the development of the works, supplies or services concerned. An organisation in this position must be "given the opportunity to prove that, in the circumstances of the case, the experience which he has acquired was not capable of distorting competition". •
Case C-206/08: Wasser- und Abwasserzweckverband Gotha und Landkreisgemeinden (WAZV Gotha) v Eurawasser Aufbereitungs- und Entsorgungsgesellschaft mbH. Ruled in relation to a contract for the supply of services, that "the fact that the supplier does not receive
consideration directly from the contracting authority, but is entitled to collect payment under
private law from third parties, is sufficient for the contract in question to be categorised as a 'service concession' within the meaning of Article 1(3)(b) of Directive 2004/17/EC of the European Parliament and of the council of 31 March 2004".
Public procurement •
Case 31/87 Gebroeders Beentjes BV v State of the Netherlands on the interpretation of Council
Directive 71/305/EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts: a "social consideration" such as a condition relating to the employment of
long-term unemployed persons is compatible with the public works directive if it has no direct or indirect discriminatory effect on tenderers from other Member States of the Community. In his opinion as an
Advocate-General in this case, also advised that the distinction between checking a tenderer's suitability for a specific contract and the contract award decision based on the bid evaluation criteria does not require these two steps to be assessed in sequence, and where an awarding authority "belatedly" becomes aware of a tenderer's unsuitability, it should be able to rely on that information "up to the last moment". •
Case C-243/89 Commission v Denmark - construction contract for the
Storebaelt bridge: a condition requiring use of local labour and local materials was held to be incompatible with treaty principles. •
Case C-107/92 Commission v Italian Republic – an urgent need had arisen to construct an
avalanche barrier in the Alpe Gallina region near Colle Isarco and
Brenner in the
South Tyrol, following publication of a
geological report in June 1988 recommending in advance of the 1988-89 winter. The Italian government appointed a contractor without advertising in the
Official Journal of the European Communities on the grounds of urgency, but the European Commission argued, and the Court agreed, that there was sufficient time to advertise the works opportunity under the accelerated procedure as defined in section 15 of the Directive on Public Works Contracts (Directive 71/305/EEC). •
Case C-331/92 Gestión Hotelera Internacional SA v Comunidad Autónoma de Canarias, Ayuntamiento de Las Palmas de Gran Canaria and Gran Casino de Las Palmas SA: the contract in question covered the assignment of publicly-owned land to a
casino concession with incidental works to be undertaken in order to operate the casino. The court held that, because the works were "merely incidental" to the concession, the provisions of Directive 71/305 did not apply to the contract award procedure. •
Case C-97/94 Commission v Belgium: contracting authorities have "a degree of choice" as to which
procurement procedure they follow for each procurement exercise, but "once they have issued an
invitation to tender under one particular procedure, they are required to observe the rules applicable to it until the contract has been finally awarded". In this case, brought by the Commission of the European Communities against the Kingdom of Belgium, the Belgian government argued that although this tender for the supply of buses for public transport in
Wallonia had been issued using the "Open Procedure", the "negotiated procedure" could have been used instead. The court stated that subsequently changing the procedure in order to negotiate (or accept further post-tender information) was not permitted. •
Case C-225/98 Commission v French Republic – ruled that the
Nord-Pas-de-Calais region and the
Département du Nord had failed to fulfil their legal obligations through the use of employment criteria in the technical specification used when contracting for the construction and maintenance of school buildings. However, the court ruled that where a contracting authority had to assess two or more economically equivalent bids, they could adopt employment opportunities as an "accessory" or "additional" criterion, as long as the use of this criterion was not discriminatory. •
Case C-237/99 Commission v French Republic – ruled that the
French public housing institutions, ''offices publics d'aménagement et de construction
(OPAC, public development and construction entities) and societes anonymes habitations à loyer modéré'' (SA HTMs, low-rent housing corporations) met the criteria in the then-applicable public works contracts directive (Council Directive 93/37/EEC) for being treated as a "body governed by public law" according to article 1(b) of the directive: :*a body established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, :*having legal personality, and ::[either] ::*financed, for the most part, by the State, or regional or local authorities, or other bodies governed by public law, or ::*subject to management supervision by those bodies, or ::*having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities or by other bodies governed by public law. •
Case C-470/99 Universale-Bau AG established that a contracting authority must disclose not just the selection criteria it intends to use in the award of a public contract, but also the weighting that it intends to apply in respect of those criteria. The ruling also established that the EU's procurement legislation does not preclude
national rules invoking a time limit during which an application for review of a contracting authority's decision must be commenced, so long as the time limit is "reasonable". namely the
Austrian federal government, in respect of its offices in the
Land of
Carinthia. •
Case C-327/00 Santex SpA v Unita Socio Sanitaria Locale n. 42 di Pavia: Unita Socio Sanitaria Locale n.42 di
Pavia in Italy tendered for home-delivery of incontinence products for their service users. A requirement in the invitation to tender (ITT) referring to tenderers' turnover over the preceding three years was challenged by a bidder, Santex SpA, and so the public body stated that the requirement would not effect eligibility to tender but would be considered in tender evaluation. Tender evaluation was postponed while additional information was requested from bidders, but ultimately the public body decided to enforce the requirement in the ITT and exclude certain bidders, including Santex, from evaluation. Santex sought to enforce its original challenge in court but as it was now more than 60 days from the publication of the ITT it was ruled out of time. The Court stated that the principle of effectiveness required the national court to override the 60 day limitation period and allow Santex's challenge to be heard. •
Case C-211/02 Tideland Signal Ltd v European Commission: supply case where the Commission rejected a tender in circumstances where the
Court of First Instance held that a clarification should have been sought instead of the tender being rejected, giving rise to a proposition on the circumstances where a clarification should be sought, subsequently referred to as the "
Tideland principles". •
C-15/04 Koppensteiner: an authority's decision to withdraw an invitation to tender must be open to review. •
Joined cases C-226/04 and C-228/04: whether companies bidding for public service contracts who have failed to pay tax or
social security contributions on time but have subsequently regularised their position may be included within a procurement procedure, where national harmonising legislation makes provision for such companies not to be considered. •
Case C-331/04 ATI EAC and Others v ACTV Venezia SpA and others, a public service contracts and transport procurement case, allowed that specific weightings may be applied to the subheadings of an award criterion which are defined in advance, even though the weightings were not determined at the time when the contract notice was issued, so long as the criteria themselves are not amended, the weightings do not contain elements which, if they had been known at the time the tenders were prepared, could have affected their preparation, and they do not give rise to any discrimination between the tenderers. •
Case T-70/05 European Dynamics v European Maritime Safety Agency (EMSA): European Dynamics challenged two contract awards by EMSA, one successfully and one unsuccessfully. On one tender, European Dynamics was successful because EMSA had wrongly accepted a tender which had been received after the tender deadline and which was not covered by a "
registered post" exception provided for in the tender documents. On the other tender, the General Court upheld the decision-making in
Case C-331/04 (ATI) and ruled in favour of EMSA, noting additionally that "where an applicant challenges the weighting applied to sub-criteria, there must be an evidential base for any contention that there has been a failure to satisfy any of the three ATI conditions". •
Case C-444/06 Commission v Spain: the Spanish public procurement rules did not adequately transpose the requirements of Council Directive 89/665/EEC 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 Council Directive 92/50/EEC of 18 June 1992. However, in regard to some provisions in Spanish law intended to preserve the effects of a contract subject to an administrative declaration of invalidity and to maintain continuity of public service provision, the Court found that the commission had not demonstrated that the legislation undermined the requirements of the review directive. •
Case C‑450/06 Varec SA v Belgian State, 14 February 2008: a review body must ensure that confidentiality and
business secrecy are respected. The review body itself is responsible for determining how this can best be done whilst also providing effective legal protection and respecting the rights of the parties to the dispute under review to conduct their defence. •
Case C-454/06 pressetext Nachrichtenagentur GmbH v Republic of Austria, on amendments to the Austrian government's contract with the
Austria Press Agency (APA), and the question of material amendments to a contract. •
Case C-532/06 Emm G Lianakis AE and others v Dimos Alexandrouplis and others, states that the "selection" and "award" stages of a procurement process are distinct processes with different purposes and should not be fused into one. The case establishes that a supplier's "experience" may be used as a selection criterion but cannot function as a evaluation criterion at the "award" stage. •
Case T-258/06 Commission v Germany, a case in the
General Court of the European Union: Germany unsuccessfully challenged the lawfulness of the Commission's
Interpretative Communication on the Community law applicable to contract awards not or not fully subject to the provisions of the Public Procurement Directives, published in August 2006. •
Case C‑538/07 Assitur Srl v Camera di Commercio, Industria, Artigianato e Agricoltura di Milano: addressed a referral from the Italian
Tribunale Amministrativo Regionale per la Lombardia for advice on whether the list of criteria in the (old) procurement directive 92/50/EEC for excluding tenderers from a procurement process was to be treated as exhaustive. The ruling confirmed that in itself the list was not exhaustive, but parallel
Italian legislation according to which "undertakings linked by a relationship of control or affiliated to one another" were not permitted to take part simultaneously in the same procurement procedure" was unlawful unless the businesses involved were given "an opportunity to demonstrate that [their] relationship did not influence their conduct in the course of that tendering procedure". •
Case C-406/08, Uniplex (UK) Ltd. v NHS Business Services Authority: reviewed the provision in the UK's Public Contracts Regulations obliging an unsuccessful tenderer to submit a challenge to the contracting authority's decision "
promptly, and in any event within three months". The court concluded that this national provision was contrary to EU law because this form of wording prevented claimants from knowing the exact time limit which would apply. •
Case C-456/08 Commission v Ireland: Order 84A of the Rules of the
Superior Courts in Ireland required procurement review actions to be brought "at the earliest opportunity and in any event within three months". The Court ruled that this wording left disappointed bidders "in uncertainty regarding their position when they consider making use of their Community law right to effective legal remedy against a decision of a contracting authority". A new Order 84A was issued by the
Irish Government on 8 September 2010 which is now consistent with EU law. This requires that actions be brought within 30 calendar days of when the claimant "knew or ought to have known" of the alleged infringement". •
Case C-599/10 SAG ELV Slovensko a.s. and others v Úrad pre verejné obstarávanie, referral from the
Najvyšší súd Slovenskej republiky (
Supreme Court of the Slovak Republic). In a case where a tender is imprecise or does not meet the technical requirements of the specification, there is no obligation to consult the tenderer or to ask for a clarification, and to do so would conflict with the principle of equal treatment of tenderers. There is a duty to request clarification of an abnormally low price and in this case the contracting authority "must set out clearly its request for clarification". •
Case C-159/11 Azienda Sanitaria Locale di Lecce and Universita del Salento v Ordine degli Ingegneri della Provincia di Lecce and others, referral from the Italian Consiglio di Stato. The (public hospital authority) in
Lecce appointed the
University of Salento to undertake a
seismic vulnerability study of its hospital buildings in accordance with Italian , which authorised public administrative authorities to enter into agreements on cooperation in activities of common interest, and in accordance with Italian university reforms effective from 1980. The Court ruled that public procurement law precluded national legislation which authorised the conclusion of public authority cooperation agreements without tendering. An exception would be where all the cooperating authorities had to perform the same public task. • '
Case C-182/11 Econord SpA v Comune di Cagno et al.''''', 29 November 2012: control "similar to the control which [a local authority] exercises over its own departments" is maintained where the authority holds capital in a public entity and also plays "a role in its managing bodies". Joined case with case C-183/11. •
Case C-552/13: Grupo Hospitalario Quirón SA v Departamento de Sanidad del Gobierno Vasco and Instituto de Religiosas Siervas de Jesús de la Caridad, confirmed that the 2004 Directive on Public Procurement did not permit a tender for medical services to state as a requirement that the proposed services must be provided within the boundaries of a particular locality, in this case the
municipality of Bilbao. A more general proximity requirement in the specification, more easily justifiable, was not criticised by the court. •
Case T-4/13: Communicaid Group Ltd. v European Commission, another EU General Court case. Communicaid, a London-based language-training company challenged a procurement award decision made by the Commission and requested that the proposed contract award be suspended. The challenge was dismissed as Communicaid had failed to establish why urgent measures were required. • '
Joined cases C-439/14 and C-488/14, SC Star Storage v Institutul Naţional de Cercetare-Dezvoltare în Informatică (ICI) and SC Max Boegl România SRL et al
v RA Aeroportul Oradea et al''''': two
Romanian appeal court cases testing out Romania's requirement for tenderers to pay for a "good conduct guarantee" if they wish to appeal against the decision of a contracting authority. The Court found that, so long as the guarantee funding was to be returned to the tenderer regardless of the outcome of their appeal, the legislation which specified that the "good conduct guarantee" was a requirement was upheld as permissible. •
Case C-549/14: Finn Frogne A/S v Rigspolitiet ved Center for Beredskabskommunikation: the Court of Justice ruled that a
settlement agreement in relation to a dispute between a public body and a contractor could in some cases amount to a material amendment to their contract, for which a new tender should have taken place. In this case, which originated in the
Danish courts, the settlement agreement reduced the scope of the contract, and the ECJ's view was that other operators might have wanted to take on the reduced-scope provision. •
Case C-413/17: Roche Lietuva, related to the detailed formulation of technical specifications. == Social policy ==