OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 30 June 2016 (1)
Case C‑171/15
Connexxion Taxi Services BV
v
Staat der Nederlanden,
Transvision BV,
Rotterdamse Mobiliteit Centrale RMC BV,
and
Zorgvervoercentrale Nederland BV
(Request for a preliminary ruling from the Hoge Raad der Nederlanden (Supreme Court of the Netherlands)
(Public procurement — Selection procedure — Criteria for qualitative selection — Optional grounds for exclusion — Grave professional misconduct — Principle of proportionality — Discretion which is not provided for in the descriptive document — Scope of judicial review)
The question referred for a preliminary ruling from the
1. Hoge Raad der Nederlanden (Supreme Court of the Netherlands) is concerned, first, with one of the most common problems in the interpretation of Directive 2004/18/EC, (2) that is, the powers of Member States to exclude certain tenderers from public contracts. The referring court also enquires as to the scope of the judicial review in the context of the review procedures brought under Directive 89/665/EEC. (3)
2. In this case, one of the tenderers had been guilty of grave professional misconduct, conduct referred to in the ‘descriptive document’ (4) for the tender as a ground for (automatic?) exclusion. The contracting authority, however, not only allowed it to participate, but ultimately also awarded the contract to it.
3. Directive 2004/18 (specifically, Article 45(2)(d)) authorises Member States to incorporate, on an optional basis, that clause in the national rules governing public procurement. The Hoge Raad (Supreme Court) seeks to ascertain whether the contracting authority is empowered, notwithstanding the terms of the descriptive document, to assess the tenderer’s misconduct in the light of the principle of proportionality and even to determine that such behaviour does not have an exclusionary effect.
4. If the contracting authority is found to have that power, the referring court enquires next as to the intensity of the judicial review of the decision taken. More specifically, it asks whether it is compatible with EU law for the court to carry out, in those circumstances, a review limited to assessing only the ‘reasonableness’ of the administrative decision.
I – Legislative framework
A – EU law
Directive 2004/18
5. According to Article 45:
‘2. Any economic operator may be excluded from participation in a contract where that economic operator:
…
(d) has been guilty of grave professional misconduct proven by any means which the contracting authorities can demonstrate;
…’
6. According to the final subparagraph of Article 45(2):
‘Member States shall specify, in accordance with their national law and having regard for Community law, the implementing conditions for this paragraph.’
Directive 89/665
7. The third subparagraph of Article 1(1) provides:
‘Member States shall take the measures necessary to ensure that, as regards contracts falling within the scope of Directive 2004/18/EC, decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in Articles 2 to 2f of this Directive, on the grounds that such decisions have infringed Community law in the field of public procurement or national rules transposing that law.’
8. Article 2(1) provides:
‘Member States shall ensure that the measures taken concerning the review procedures specified in Article 1 include provision for powers to:
(a) take, at the earliest opportunity and by way of interlocutory procedures, interim measures with the aim of correcting the alleged infringement or preventing further damage to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a public contract or the implementation of any decision taken by the contracting authority;
(b) either set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discriminatory technical, economic or financial specifications in the invitation to tender, the contract documents or in any other document relating to the contract award procedure;
(c) award damages to persons harmed by an infringement.’
B – National law
Besluit aanbestedingsregels voor overheidsopdrachten (5)
9. Article 45(3) reproduces the optional grounds for exclusion contained in Article 45(2) of Directive 2004/18.
10. In accordance with the ‘Nota van toelichting’ (explanatory note) (6) attached to the BAO, the assessment of whether a tenderer must actually be excluded, having regard to the general principles of Directive 2004/18, must always be proportional and be carried out in a non-discriminatory manner. The contracting authorities must examine in each particular case, on the basis of the nature and size of the public contract, the type and scope of the misconduct and the measures taken in the meantime by the undertaking, whether that undertaking should be excluded from the invitation to tender.
II – Facts in the main proceedings and questions referred for a preliminary ruling
11. On 10 July 2012 the Ministerie van Volksgezondheid, Welzijn en Sport (‘the Ministry’) launched a European call for tenders for the award of ‘socio-recreational interregional transport services for persons with reduced mobility’ (‘the contract’). The contract had a duration of over three years and its annual value was approximately EUR 60 000 000.
12. According to paragraph 3.1 (‘Grounds for exclusion and suitability requirements’) of the descriptive document, ‘A tender to which a ground for exclusion applies shall be set aside and shall not be eligible for further (substantive) assessment’.
13. The descriptive document refers to the annex ‘Uniform self-declaration — Tenders’ (which must be added as a mandatory annex to the tender) the requirements imposed on tenderers.
14. According to the descriptive document, ‘the tenderer … declares … that no grounds for exclusion … apply to him; this is confirmed by signature of the Uniform self-declaration — Tenders’.
15. The Uniform self-declaration refers, in turn, to Article 45 of the BAO and specifies which optional grounds for exclusion apply. The tenderer is required, inter alia, to declare that ‘neither his company nor any manager has been guilty of grave professional misconduct’.
16. Among those taking part in the procurement procedure were Connexxion Taxi Services BV (‘Connexxion’) and the Tender Group, comprising Transvision, RMC and ZCN (‘the Tender Group’).
17. By letter of 8 October 2012, the Ministry informed Connexxion that its tender had been placed in second position and that the intention was to award the contract to the Tender Group.
18. On 20 November 2012, the Nederlandse Mededingingsautoriteit (Netherlands Competition Authority) imposed a number of penalties on RMC and the BIOS Group, of which ZCN formed part, pursuant to the Mededingingswet (Law on Competition), in relation to acts which took place between 17 April 2009 and 1 March 2011 relating to taxi services in the Rotterdam region.
19. By letter of 18 February 2013, the Ministry informed Connexxion that it stood by its decision to award the contract to the Tender Group, because, although the latter had been guilty of ‘grave professional misconduct’, its exclusion would be disproportionate.
20. Connexxion brought legal proceedings against the decision of the Ministry, seeking an order prohibiting the State from awarding the contract to the Tender Group, which opposed that claim.
21. The Voorzieningenrechter te Den Haag (the court hearing the application for interim measures, The Hague) upheld Connexxion’s claim, taking the view that the Ministry, having established that the Tender Group had been guilty of grave professional misconduct, no longer had any latitude to carry out a review of proportionality.
22. An appeal having been brought before it, the Gerechtshof Den Haag (Court of Appeal, The Hague) set aside the decision of the court hearing the application for interim measures and ordered the State, if it still wished to do so, to award the contract to the Tender Group.
23. The Gerechtshof (Court of Appeal) held that Directive 2004/18 gives the Member States the latitude to act as the Netherlands legislature did, that is to say to transpose in full Article 45(2) of that directive into Article 45(3) of the BAO and then to delegate to the contracting authorities the power to define in more detail the grounds for exclusion.
24. The Gerechtshof (Court of Appeal) ruled that, regardless of whether EU law concerning the award of public contracts requires a review of proportionality, EU law does not prohibit one. Furthermore, it follows from the Netherlands legislation that exclusion must not be automatic and that a contracting authority must assess whether it would be proportionate.
25. The Gerechtshof (Court of Appeal) added that the decision of the Ministry had to be evaluated with caution, a fortiori as the grave professional misconduct at issue had not (yet) been irrevocably established. The essential question is whether the Ministry could reasonably have reached the conclusion that excluding the Tender Group was disproportionate. It held that it was not relevant that the descriptive document includes as a reason for eliminating a tenderer the existence of a ground for exclusion and stated that the decision of the Ministry could withstand the ‘marginal’ (7) review of the court.
26. The Hoge Raad der Nederlanden (Supreme Court of the Netherlands), hearing an appeal against the judgment of the appellate court, notes certain tensions between: (a) on the one hand, the obligation imposed by law on the contracting authority to make the optional grounds for exclusion subject to an assessment of proportionality in order to determine whether they must have an exclusionary effect; and, (b) on the other hand, the descriptive document for the contract, under which tenders to which a ground for exclusion applies must be rejected.
27. The referring court has doubts as to whether application of the proportionality test observes the principles of equality, transparency and public access, when that test has not been expressly incorporated in the descriptive document.
28. Furthermore, according to the Hoge Raad der Nederlanden (Supreme Court of the Netherlands), although the court must adjudicate on the content of the decision of the administrative body, Netherlands law limits the powers of the court to a ‘marginal’ review of the decision of the contracting authority, which is confined to determining whether that contracting authority could reasonably have come its decision.
29. Against that background, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) referred the following questions to the Court for a preliminary ruling:
‘(1) (a) Does EU law, in particular Article 45(2) of Directive 2004/18/EC [of the European Parliament and of the Council of 31 March 2004] on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, preclude national law from obliging a contracting authority to assess, by application of the principle of proportionality, whether a tenderer which is guilty of grave professional misconduct must indeed be excluded?
(b) Is it significant in this regard that a contracting authority has stated in the tender conditions that a tender to which a ground for exclusion applies must be set aside and is not to be eligible for further substantive assessment?
(2) If the answer to Question 1(a) is in the negative: does EU law preclude a situation in which the national courts fail to carry out an ‘unrestricted’ judicial review of an assessment conducted on the basis of the principle of proportionality, such as the assessment conducted by a contracting authority in the present case, but merely carry out a (‘marginal’) review as to whether the contracting authority could reasonably have come to the decision not to exclude a tenderer notwithstanding the fact that that tenderer was guilty of grave professional misconduct within the meaning of the first subparagraph of Article 45(2) of Directive 2004/18/EC?’
III – Summary of the arguments of the parties
A – The first question referred for a preliminary ruling
30. According to Connexxion, the contracting authority is not in a position to make an assessment of proportionality having found that the tenderer has been guilty of grave professional misconduct. That assessment has already been carried out by inclusion of the misconduct as a ground for exclusion in the descriptive document. Given the wording of the latter, it would be contrary to the principles of public access, transparency and equality in matters of administrative procurement for the contracting authority to have the power to assess the proportionality of the ground for exclusion.
31. All the other parties take the contrary view. Whether or not to incorporate the optional grounds for exclusion is a matter for the Member States, which enjoy discretion in that regard. Within that discretion, Directive 2004/18 does not preclude making the exclusion of tenderers to which one of the optional grounds for exclusion applies subject to a prior assessment of proportionality. As to the fact that the descriptive document considers grave professional misconduct as sufficient grounds for rejecting the perpetrator, this does not prevent the contracting authority from applying the general rule, namely, to make application of that ground for exclusion subject to an assessment of proportionality.
B – The second question referred for a preliminary ruling
32. Connexxion is in favour of allowing the court to carry out a full review of the administrative decision.
33. The Netherlands Government and the Tender Group argue, however, that the judicial review should be limited to a marginal examination of the reasonableness of the decision of the contracting authority.
34. According to the Commission, the court’s review must be wider in scope, allowing the court to examine the accuracy of the facts and the absence of manifest error of assessment, as well as to ensure that the facts supporting the decision of the contracting authority are accurate, complete and reliable.
35. According to the Italian Government, it is for the national legislature to establish the appropriate form of review, as EU law does not require that the assessment by the referring court should fully reproduce the substantive examination by the contracting authority.
IV – Assessment
A – Part (a) of the first question referred for a preliminary ruling
36. Is it consistent with Directive 2004/18 for a Member State to require contracting authorities to make the possible exclusion of tenderers who have been guilty of grave professional misconduct subject to an assessment of proportionality?
37. Before answering that question two clarifications should be made. According to the information contained in the order for reference, on both the date on which the tenders were submitted and the date of the decision of the contracting authority (8 October 2012), the Tender Group had not been penalised as the perpetrator of any grave misconduct. It was at a later date (on 20 November 2012) that the Netherlands competition authority imposed a number of penalties on some of its members, for concerted practices which occurred years earlier. It is for the referring court to decide whether those penalties, subsequent to the date of submission of the tenders and the initial award decision, can be regarded as a valid ground for excluding a perpetrator which had already submitted its tender (obviously, without referring in it to any grave misconduct, which had not until then been established by law).
38. If the referring court considers, nonetheless, that the penalty imposed on the tenderer justifies the latter being classified (8) as the perpetrator of ‘grave professional misconduct’, there arises the question of the application of that ground for exclusion, that is whether it should apply with automatic effect or only following a review of its proportionality.
39. The second clarification concerns the interpretation of the national rules, which falls exclusively to the referring court. In the order for reference, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) states that ‘national law obliges a contracting authority, in the case where one of the optional grounds for exclusion in Article 45(3) of the BAO is applicable, to determine on the basis of the principle of proportionality whether exclusion of the tenderer concerned must in fact follow’. As regards the preliminary ruling procedure, and in so far as national law is concerned, this resolves the dispute as to the adequacy of the legal basis of the ‘obligation’ to assess proportionality (and indirectly, as to the effect of the explanatory note to the BAO).
40. Following those clarifications, the answer to the question referred may be inferred without major difficulties from the case-law of the Court both prior and subsequent to Directive 2004/18. (9)
41. Under Directive 92/50/EEC (10) (Article 29 of which is worded in a similar way to Article 45(2) of Directive 2004/18), the Court held in the judgment in La Cascina and Others (11) that application of the cases of optional exclusion are to be left to the assessment of the Member States, as shown by the phrase ‘may be excluded from participation in a contract’, which appears at the beginning of Article 29. The Member States cannot add grounds of exclusion to those referred to in the provision, (12) but Article 29 of Directive 92/50 does not provide for uniform application of those grounds for exclusion. (13)
42. When Directive 2004/18 came in force, the Court followed the same approach in the judgment in Consorcio Stabile Libor Lavori Publicci, (14) paragraph 35 of which reproduces the arguments contained in the judgment in La Cascina and Others. (15) It reiterated that the Member States must specify, in accordance with their national law and having regard to EU law, the implementing conditions for Article 45(2) of Directive 2004/18. The Court therefore again endorsed the power of the Member States to apply the exclusion criteria and, should they so wish, make them more flexible.
43. If it is for Member States to define which grounds for exclusion – among those laid down as optional in Directive 2004/18 – are to apply in their own legal systems, it is logical that they are also entitled to specify the conditions or requirements for their application. They may, therefore, define those grounds more or less strictly, so that if they prefer to subject each, or only some, of them to a case-by-case review or comparison of proportionality, nothing in Directive 2004/18 prevents this.
44. It follows from the judgment in Consorcio Stabile Libor Lavori Publicci (16) that the exercise of that power by Member States is not, however, unconditional. First, the European Union attaches great importance to freedom of establishment and freedom to provide services, which serves as a reason for it to facilitate opening up procurement procedures as far as possible, an aim which could be hindered by application of the optional grounds for exclusion. Secondly, it is legitimate to justify the grounds for exclusion in terms of general interest objectives, such as guarantees of the tenderer’s reliability, diligence, professional honesty and seriousness. In order to balance those interests, the Court applies the principle of proportionality.
45. The corollary of that case-law is that a national law under allowing a contracting authority to reject tenderers guilty of grave professional misconduct only if their exclusion, for that reason, is deemed to be consistent with the principle of proportionality does not infringe Article 45(2) of Directive 2004/18 or EU law.
B – Part (b) of the first question referred for a preliminary ruling
46. The descriptive document for the contract does not make exclusion of a tenderer who is guilty of grave professional misconduct subject to an assessment of proportionality. Hence the uncertainty of the referring court: is the actual wording of that descriptive document relevant in the present case?
47. The answer to that question must be based on the foregoing. A case-by-case assessment of proportionality relating to the optional grounds for exclusion is required by the Netherlands rules applicable to public procurement (specifically, the BAO) and is also not contrary to EU law. Nevertheless, should the legal provision laying down that rule in general terms take precedence or, on the contrary, is the contracting authority bound by a particular clause in a descriptive document which, in this specific invitation to tender, excludes a tenderer who has committed a serious infringement?
48. The Court, I repeat, cannot take the place of the referring court in the interpretation of national law. However, strictly from the perspective of national law, I think it is possible to make the clause in the descriptive document consistent with the general rule. Otherwise, it would be tantamount to allowing, in a particular case, derogation from certain inviolable provisions applicable to public procurement by means of a specific measure which fails to comply with them.
49. The clause in the descriptive document can be interpreted in a manner consistent with the BAO, without excessive interpretative difficulties, if the starting point is an overall assessment of the entirety of the rules applicable to public procurement. The optional grounds for exclusion operate not in a vacuum but within a predetermined legal framework, with which they must comply. They are effective, therefore, only where the legally established requirements for their application are fulfilled. One such requirement is that conduct must be assessed in the light of the principle of proportionality, in so far as infringements by tenderers are concerned.
50. Where the contracting authority acts in accordance with that criterion, it does so in a manner entirely consistent with the general rules governing public procurement in the Netherlands, as set out in the BAO and its explanatory note. Hence, even if the descriptive document does not expressly provide that the contracting authority has the power to assess the infringement committed by the tenderer in the light of the principle of proportionality, that power must be understood to be implicit.
51. The requirement included in paragraph 3.1 of the descriptive document (‘a tender to which a ground for exclusion applies must be set aside’), precisely because of its quasi-regulatory nature, must, in my view, be read in the light of the interpretative rules applicable to all subordinate legal rules, which cannot disregard the more general rules which govern them. If the BAO provides that exclusion on the ground of grave professional misconduct requires that the contracting authority examine each particular case ‘on the basis of the nature and size of the public contract, the type and scope of the misconduct and the measures taken in the meantime by the undertaking’, the fact that the descriptive document is silent as to that necessary and individual application of the principle of proportionality cannot result in that principle being disregarded.
52. That approach is confirmed from the perspective of EU law. The case-law of the Court on the optional grounds for exclusion, rejecting their automatic application, confirms the need for that consistent interpretation. It follows from the judgment in Forposta and ABC Direct Contact (17) that automatic exclusion (of a tenderer guilty of grave misconduct) could go beyond the discretion conferred on Member States by Article 45(2) of Directive 2004/18.
53. According to that judgment, at the outset, it is necessary to carry out ‘a specific and individual assessment of the conduct of the economic operator concerned’. (18) Because it failed to comply with that criterion, the Court declared incompatible with EU law a national law which ‘require[s] the contracting authority … to exclude an economic operator from a … procedure for the award of a contract …, without allowing the contracting authority the power to assess, on a case-by-case basis, the gravity of the allegedly wrongful conduct of that operator’. Although the circumstances of the case which gave rise to the judgment in Forposta and ABC Direct Contact (19) differ from those in this case, the line of argument then adopted by the Court is applicable to this case as an interpretative criterion.
54. In summary, in addition to reasons relating to the internal legal system (the fact that the BAO takes precedence, as the general law governing Netherlands public contracts), which it is for the referring court to assess, it is also necessary to consider the case-law of the Court which is contrary, in principle, to automatic exclusion when that ground for exclusion is assessed.
55. I suggest, therefore, as an answer to the question referred, that the clause in the descriptive document cannot be used to avoid the case-by-case assessment of proportionality concerning the tenderer’s misconduct, for the purpose of determining whether or not to exclude it from the contract.
56. The objections to that approach, based on the principles of public access, equal treatment and transparency (to which both the referring court and Conexxion refer, citing the judgment in Commission v CAS Succhi di Frutta (20)), though of some weight, do not convince me. In accordance with the case-law of the Court recalled in that judgment, (21) all tenderers must be governed by the same requirements, without distinction. However, in the case before the Court, application of the principle of proportionality, as well as being supported by the general rules applicable to public procurement in the Netherlands, would have been extended equally to all the tenderers to which that ground for exclusion applied. There could have been discrimination if one of them, guilty of a similar serious infringement, had, unlike the Tender Group, been automatically excluded from the tender, that is without the prior assessment of proportionality. However, that did not happen.
57. The line of case-law which includes the judgment in Commission v CAS Succhi de Frutta (22) does not, in my opinion, rule out the answer which I propose. Application of the principles of equality, public access and transparency regarding certain clauses in the descriptive document, which must be interpreted in the light of the general rules applicable to public procurement, does not preclude the contracting authority from assessing whether, in a particular case, the tenderer’s misconduct, evaluated in accordance with the criterion of proportionality, prevents it from being awarded the contract which it seeks and with a view to the award of which it has submitted a better proposal than the other tenderers.
58. In the invitation to tender at issue, the conditions and the selection procedure, the same for all applicants, were not modified. The contracting authority checked that their tenders satisfied the criteria applicable to the contract (23) and applied no ground for exclusion which was not provided for in the descriptive document. (24) The fact that, in order to assess one of those grounds for exclusion expressly included in that document it applied the criterion of proportionality, which was not expressly referred to in the descriptive document but is required by the general Netherlands rules on public procurement (as well as by the case-law of the Court), is, in my view, consistent with the principle of equal treatment and its corollary, the obligation to act transparently.
59. It is plausible that the Court should insist (most recently in the judgment in Pizzo (25)) on respect for the contract documents or similar documents as a guarantee of equal treatment of tenderers. However, like all rules, that rule has its limits and cannot magnify the significance of the contract documents (or similar documents) to the point of simply dispensing with the requirements of public contracts laid down in the legislation of each Member State. It should be noted that, in that manner, certain contracting authorities could be tempted to omit from contract documents certain requirements, lawfully established by the national legislature, with which they may not agree or simply prefer to avoid (including ones of benefit to a potential applicant), and will have the assurance that the contract documents so drawn up will be, in practice, unchallengeable. Although it is important to maintain equality of tenderers, it is no less important that they, and the contracting authority itself, should not be exempt from the rules and general criteria which, in each Member State, govern this area, including, in particular, the criterion of proportionality, which is applicable to the ground for exclusion at issue in this dispute.
C – The second question referred for a preliminary ruling
60. Although the referring court does not expressly refer to it, I take the view that the Court is asked to interpret Directive 89/665, which coordinates national rules for the review procedures concerning the award of public contracts.
61. With regard to the decisions of contracting authorities (in so far as they concern, obviously, contracts falling within the scope of Directive 2004/18), Member States must ensure that the persons concerned have available review mechanisms suitable for determining, quickly and effectively, whether they have infringed EU law on public procurement or national rules transposing EU law into their respective legal systems. That is, ultimately, the purpose of Directive 89/665.
62. The analysis which I propose to carry out will address, first, whether Directive 89/665 and the case-law which has interpreted it provide guidelines for determining the level or intensity with which review bodies must assess the decisions of contracting authorities. If such guidelines exist, they must then be compared with those in force under Netherlands law, which the referring court mentions.
63. Next, it will be ascertained whether the intensity of the judicial review must be the same in the two types of procedures referred to in Article 2 of Directive 89/665, that is: (a) interlocutory procedures which allow interim measures to be taken in the stage prior to the conclusion of the contract; and (b) other review procedures, aimed at obtaining annulment of the administrative award measure and compensation for damages. In this case, (26) Connexxion challenged the Ministry’s decision to award the contract to the Tender Group, requesting that the Voorzieningenrechter te Den Haag (the court hearing the application for interim measures, The Hague) revoke it. Connexxion’s action therefore fell within the scope of Article 2(1)(a) of Directive 89/665.
64. Finally, I shall consider whether, given the circumstances of the dispute in the main proceedings, it is possible to assert, as the Netherlands Government maintains, that the judicial review carried out by the respective courts, at first instance and on appeal, met the standard of review laid down by Directive 89/665.
1. The intensity of the judicial review of decisions of contracting authorities
65. In matters of public procurement, the same trend which is observable in other areas of European public law is clearly discernible: although the Court was initially content to refer to the procedural autonomy of the Member States and to use, as a corrective, the principles of equivalence and effectiveness as minimum requirements of the national systems of judicial review in disputes involving EU law, gradually, requirements specific to ‘judicial protection’ or supervision have gained ground, so as to increase, at the same time, the intensity of that review. (27)
66. The trend is, as is logical, more pronounced where the EU legislature has adopted harmonising provisions, specifically in relation to the judicial review of certain decisions of national authorities. This applies, in particular, in the field of public procurement, since Directive 89/665 and subsequent reforms to it have been based on an awareness that Community legislation would become worthless without review mechanisms which, as well as being harmonised, are effective and ensure compliance with the applicable rules. Those mechanisms have the purpose not only of protecting tenderers’ rights, but also of improving the entire system of public procurement, whose economic importance for the internal market cannot be overemphasised.
67. It is not surprising, therefore, that both the order for reference and the observations of the parties repeatedly cite the judgments in HI (28) and Croce Amica One Italia, (29) in which the Court ruled on the scope of the powers of courts and tribunals to review the activities of contracting authorities.
68. In the first of those judgments, the Court held that Directive 89/665 precludes national legislation from limiting review ‘of the legality of the withdrawal of an invitation to tender to mere examination of whether it was arbitrary’. (30) In the judgment in Croce Amica One Italia, (31) the Court picked up that line of argument where it had been left in the judgment in HI; the Court recalled that the review of legality cannot be confined to an examination of whether the decisions of contracting authorities are arbitrary and went further, stating that the legislature may grant its country’s national courts and tribunals the power to review whether a measure was expedient.
69. In the same vein, this reference for a preliminary ruling gives the Court the opportunity to clarify whether a review which is merely ‘marginal’ (that is the term used by the referring court) fulfils the requirements of Directive 89/665. The referring court is not overly explicit in describing the features of the system of ‘marginal’ review, and it is possible to infer from the order for reference only that the Netherlands court limits its assessment solely to determining the ‘reasonableness’ of the decision taken by the contracting authority.
70. At first sight, almost intuitively, it might be thought that if this is the general system of judicial review of administrative measures in force in the Netherlands (and not only with regard to public procurement, but also in other areas of public law), the procedural autonomy of that State should prevail, unless a harmonising provision requires a ‘comprehensive’ and not merely ‘marginal’ review by the courts.
71. Notwithstanding what I shall subsequently assert in connection with the interim stage of the review, I nonetheless take the view that a judicial review which, in that regard, is restricted to an evaluation of the ‘reasonableness’ of the decision awarding the contract is not compatible with Article 2 of Directive 89/665. As stated in the judgment in Alcatel Austria and Others, (32) the arrangements for challenging such decisions must ensure effective application of EU provisions on public contracts, ‘in particular at the stage where infringements can still be rectified’. The review must ensure that, if the relevant conditions are met, an applicant may obtain the setting aside of ‘the contracting authority’s decision prior to the conclusion of the contract as to the bidder in a tender procedure with which it will conclude the contract’. A mere test of reasonableness does not ensure that that decision complied strictly with the procurement rules themselves.
72. A contracting authority may adopt, in principle, several equally ‘reasonable’ solutions, which would not cease to be so because ultimately just one of them is the best solution, namely the one which is most consistent with the terms of the invitation to tender. An examination by a court which is limited to verifying the ‘reasonableness’ of a measure is not, in the final analysis, qualitatively very different from an examination as to whether that measure is arbitrary. It would be a standard of review close to that rejected in the judgment in HI, (33) which limited the assessment solely to determining whether or not the contested decision was arbitrary.
73. For my part, I consider that the judicial review imposed by Directive 89/665 requires something more to deserve that name. The assessment by the court cannot end with a mere assessment of the ‘reasonableness’ of the contested decisions, especially as those decisions must comply with detailed rules covering formal and substantive matters. A court hearing an application in this field will have to assess whether the disputed award observed the rules of the invitation to tender and whether the successful tenderer’s application can withstand the critical analysis which its competitors present in the action. That assessment will require, in many cases, verification of the decisive facts (which the administration may have determined incorrectly), as well as evidence concerning the relative merits of the various applications. It will also involve gauging whether the administrative action is duly reasoned and whether it is in line or at variance with the objectives which underlie it (in other words, whether there is evidence of misuse of powers) and the other legal provisions which govern it. Examination of all that evidence goes beyond, I repeat, a mere assessment of the ‘reasonableness’ of the contested measure and involves matters of fact and law of a more ‘technical’ and usually more complex nature, which every court having jurisdiction to review administrative acts usually carries out.
74. Accordingly, my view is that, if it is understood in the sense set out above, a merely ‘marginal’ review of the decisions of the contracting authority, which is limited to assessing their ‘reasonableness’, as described by the referring court, is not consistent with the requirement for judicial review laid down in Directive 89/665. However, do those considerations apply at the interim stage of reviews brought against those decisions?
2. Judicial review at the interim stage
75. As I have already indicated, the proceedings at first instance were concerned with the measure by which the Ministry selected the tenderer, but the action brought before the Voorzieningenrechter te Den Haag (the court hearing the application for interim measures, The Hague) was initiated in the context of interlocutory proceedings. (34) Accordingly, this dispute is specifically concerned with the interim protection provided for in Article 2(1)(a) of Directive 89/665. In the Netherlands system (35) there is a division of jurisdiction according to whether an interim action is brought or whether substantive proceedings are initiated to challenge the administrative decision. (36)
76. The presence of this interim or provisional element could be relevant to the answer to the second question referred: the intensity of the judicial review of decisions of contracting authorities need not be the same at the interim stage as when giving final judgment on the substance of the dispute. At the first stage, the court’s knowledge of the case is usually limited, (37) to the extent that its interim decision often does not have the force of res judicata and may subsequently be amended in the substantive proceedings.
77. The particular position of the court hearing the application for interim measures, from the perspective of Directive 89/665, means, therefore, that the measures which it adopts are temporary in nature, pending definitive resolution of the dispute, and that those measures ‘do … not finally determine the legal situation’. (38) Accordingly, and because the interpretation of Directive 2004/18 undertaken at the interim stage may, subsequently, be ‘classified as erroneous by the court hearing the substance of the case’, (39)it follows that interim proceedings, as such, are regarded in the case-law of the Court as a mere preliminary to the subsequent proceedings and that only the latter proceedings must end with a decision on the substance, so that, once the dispute has been presented in its entirety, the legal relationship at issue can be fully defined.
78. The level of judicial review to which I referred earlier would need to be undertaken in full only during the subsequent proceedings and not at the preliminary stage. The court hearing the application for interim measures could therefore assess the administrative measure with less intensity than the court which must give judgment on the substance. It would be permissible, in particular, to apply a simple test of the reasonableness of the opposing claims and of the award measure, similar to that which governs other forms of interim relief (assessment of whether there is a prima facie case or a risk of harm in the event of delay and the balancing of the conflicting interests).
79. Such a line of argument, which I consider valid, in principle, for the purpose of providing a response to the referring court, could be called into question, however, by a set of factual circumstances which cannot be disregarded. The fact is that, according to data obtained in relation to Netherlands practice, (40) the overwhelming majority of reviews concerning public contracts (some 92% between 2004 and 2009) are resolved at the interim stage, when applicants seek interim measures to prevent the contract from being concluded. The interim decision is usually, in Netherlands procedural practice, ‘the sole and final ruling on a procurement dispute’. (41)
80. If that is the true situation concerning review procedures in the Netherlands, the Netherlands court hearing the application for interim measures is almost the sole, and final, guarantor within the judicial system for addressing to challenges to acts of the contracting authority brought under Directive 89/665. Accordingly, there has been a blurring of the distinction which exists, in the abstract, between the interim and final stages of those review procedures.
81. In those circumstances, full review by the courts of decisions of contracting authorities would be weakened and replaced by a merely ‘marginal’ assessment of those decisions by courts hearing applications for interim measures. The review mechanisms would probably gain in efficiency and speed, while, simultaneously, losing their responsiveness to all kinds of possible irregularities in the decisions of the contracting authority, which would be freed from the necessary scrutiny to which those decisions should be subject under Directive 89/665. In other words, that directive would not be complied with in full.
3. The judicial review carried out in the main proceedings
82. The considerations set out above have served to answer the second question referred in rather abstract terms, in line with the wording used by the referring court in that question. A detailed analysis of the events in the main proceedings reveals, however, that both the review by the court hearing the application for interim measures and the review by the Gerechtshof Den Haag (Court of Appeal, the Hague) exceeded, in my opinion, a ‘marginal’ level of judicial review, if that word is to be understood in the sense previously discussed.
83. Indeed, the court hearing the application for interim measures not only considered the reasonableness of the decision of the Ministry, but also assessed it in the light of the ‘positive’ rules applicable to the invitation to tender (in particular the descriptive document, which it regarded as prevailing) when ruling that the selected tenderer should be excluded. Moreover, as regards the Court of Appeal, I agree with the assessment of the Netherlands Government (42) when it maintains that the review conducted by that court was ‘exhaustive’, that is that it ‘took into consideration all the aspects on the basis of which the Ministry had decided not to exclude definitively’ the Tender Group, after interpreting, in a manner contrary to the court hearing the application for interim measures, the applicable body of legislation.
84. If that is so, as I believe, the second question referred may well be classed as purely hypothetical (since it asks whether it is possible to carry out a ‘marginal’ review which did not in fact take place during either of the preceding procedural stages) or call for a negative response, which is what I suggest, qualified by specific reference to the circumstances of the proceedings before the Netherlands courts. It cannot be inferred from the information available in the present case that the judicial review carried out by the courts involved in the main proceedings was limited to such an assessment.
V – Conclusion
85. In the light of the foregoing reasoning, I propose that the Court reply to the questions raised by the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) as follows:
(1) Article 45(2) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts does not preclude a national measure, such as that at issue in this case, under which the contracting authority must apply the principle of proportionality for the purpose of excluding a tenderer who has been guilty of grave professional misconduct, even when that option is not expressly referred to in the descriptive document for the contract.
(2) Articles 1 and 2 of Council Directive 89/665/EEC of 21 December 1989 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 are not compatible with legislation, or the usual practice, of a Member State which limits the scope of the review procedures to a review merely of the reasonableness of the decisions of contracting authorities.