OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 16 May 2018 (1)
Case C‑124/17
Vossloh Laeis GmbH
v
Stadtwerke München GmbH
(Request for a preliminary ruling
from the Vergabekammer Südbayern (Public Procurement Board for Southern Bavaria, Germany))
(Reference for a preliminary ruling — Public procurement — Procedure — Directives 2014/24/EU and 2014/25/EU — Grounds for exclusion — Obligation of the economic operator to collaborate with the contracting authority in order to demonstrate its reliability before the end of the period of exclusion — Concept of ‘investigating authorities’— Calculation of the maximum period of exclusion)
1. An economic operator may be temporarily excluded from public procurement procedures if it has engaged in any of the behaviours set out in Article 57 of Directive 2014/24/EU. (2) However, that period of exclusion may be reduced if the economic operator can demonstrate to the contracting authority that, notwithstanding its previous misconduct, it has successfully reformed itself.
2. In order to be able to prove that it is again reliable, paragraph 6 of that article establishes, among other conditions, that the economic operator must ‘clarif[y] the facts and circumstances in a comprehensive manner by actively collaborating with the investigating authorities’. (3) The interpretation of that phrase forms much of the subject matter of this dispute.
3. When incorporating Directive 2014/24 into national law, the German legislature provided that that collaboration must be afforded not only to the investigating authorities but also to the contracting authority.
4. In that context, the Vergabekammer Südbayern (Public Procurement Board for Southern Bavaria, Germany) has raised with the Court of Justice two issues which the Court has not previously addressed:
— First, it wishes to ascertain whether the additional requirement of collaboration (with the contracting authority) imposed by the domestic legislature is compatible with EU law;
— Secondly, it seeks to determine the start date of the maximum period of exclusion (three years) provided for in Article 57(7) of Directive 2014/24 in the event that that period has not been set by final judgment and must run from ‘the date of the relevant event’.
I. Legislative framework
A. EU law
1. Directive 2014/24
5. Recital 102 states:
‘Allowance should, however, be made for the possibility that economic operators can adopt compliance measures aimed at remedying the consequences of any criminal offences or misconduct and at effectively preventing further occurrences of the misbehaviour. Those measures might consist in particular of personnel and organisational measures such as the severance of all links with persons or organisations involved in the misbehaviour, appropriate staff reorganisation measures, the implementation of reporting and control systems, the creation of an internal audit structure to monitor compliance and the adoption of internal liability and compensation rules. Where such measures offer sufficient guarantees, the economic operator in question should no longer be excluded on those grounds alone. Economic operators should have the possibility to request that compliance measures taken with a view to possible admission to the procurement procedure be examined. However, it should be left to Member States to determine the exact procedural and substantive conditions applicable in such cases. They should, in particular, be free to decide whether to allow the individual contracting authorities to carry out the relevant assessments or to entrust other authorities on a central or decentralised level with that task.’
6. Article 57 (‘Exclusion grounds’) provides:
‘1. Contracting authorities shall exclude an economic operator from participation in a procurement procedure where they have established, by verifying in accordance with Articles 59, 60 and 61, or are otherwise aware that that economic operator has been the subject of a conviction by final judgment for one of the following reasons:
(a) participation in a criminal organisation …;
(b) corruption …;
(c) fraud …;
(d) terrorist offences or offences linked to terrorist activities, … or inciting or aiding or abetting or attempting to commit an offence …;
(e) money laundering or terrorist financing …;
(f) child labour and other forms of trafficking in human beings …;
…
2. An economic operator shall be excluded from participation in a procurement procedure where the contracting authority is aware that [it] is in breach of its obligations relating to the payment of taxes or social security contributions and where this has been established by a judicial or administrative decision having final and binding effect …
Furthermore, contracting authorities may exclude or may be required by Member States to exclude from participation in a procurement procedure an economic operator where the contracting authority can demonstrate by any appropriate means that [it] is in breach of its obligations relating to the payment of taxes or social security contributions.
This paragraph shall no longer apply when the economic operator has fulfilled its obligations by paying or entering into a binding arrangement with a view to paying the taxes or social security contributions due, including, where applicable, any interest accrued or fines.
…
4. Contracting authorities may exclude or may be required by Member States to exclude from participation in a procurement procedure any economic operator in any of the following situations:
(a) where the contracting authority can demonstrate by any appropriate means a violation of applicable obligations referred to in Article 18(2);
(b) where the economic operator is bankrupt or is the subject of insolvency or winding-up proceedings, where its assets are being administered by a liquidator or by the court, where it is in an arrangement with creditors, where its business activities are suspended or it is in any analogous situation arising from a similar procedure under national laws and regulations;
(c) where the contracting authority can demonstrate by appropriate means that the economic operator is guilty of grave professional misconduct, which renders its integrity questionable;
(d) 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;
(e) where a conflict of interest within the meaning of Article 24 cannot be effectively remedied by other less intrusive measures;
(f) where a distortion of competition from the prior involvement of the economic operators in the preparation of the procurement procedure, as referred to in Article 41, cannot be remedied by other, less intrusive measures;
(g) where the economic operator has shown significant or persistent deficiencies in the performance of a substantive requirement under a prior public contract, a prior contract with a contracting entity or a prior concession contract which led to early termination of that prior contract, damages or other comparable sanctions;
(h) where the economic operator has been guilty of serious misrepresentation in supplying the information required for the verification of the absence of grounds for exclusion or the fulfilment of the selection criteria, has withheld such information or is not able to submit the supporting documents required pursuant to Article 59; or
(i) where the economic operator has undertaken to unduly influence the decision-making process of the contracting authority, to obtain confidential information that may confer upon it undue advantages in the procurement procedure or to negligently provide misleading information that may have a material influence on decisions concerning exclusion, selection or award.
Notwithstanding point (b) of the first subparagraph, Member States may require or may provide for the possibility that the contracting authority does not exclude an economic operator which is in one of the situations referred to in that point, where the contracting authority has established that the economic operator in question will be able to perform the contract, taking into account the applicable national rules and measures on the continuation of business in the case of the situation referred to in point (b).
…
6. Any economic operator that is in one of the situations referred to in paragraphs 1 and 4 may provide evidence to the effect that measures taken by the economic operator are sufficient to demonstrate its reliability despite the existence of a relevant ground for exclusion. If such evidence is considered as sufficient, the economic operator concerned shall not be excluded from the procurement procedure.
For this purpose, the economic operator shall prove that it has paid or undertaken to pay compensation in respect of any damage caused by the criminal offence or misconduct, clarified the facts and circumstances in a comprehensive manner by actively collaborating with the investigating authorities and taken concrete technical, organisational and personnel measures that are appropriate to prevent further criminal offences or misconduct.
The measures taken by the economic operators shall be evaluated taking into account the gravity and particular circumstances of the criminal offence or misconduct. Where the measures are considered to be insufficient, the economic operator shall receive a statement of the reasons for that decision.
An economic operator which has been excluded by final judgment from participating in procurement or concession award procedures shall not be entitled to make use of the possibility provided for under this paragraph during the period of exclusion resulting from that judgment in the Member States where the judgment is effective.
7. By law, regulation or administrative provision and having regard to Union law, Member States shall specify the implementing conditions for this Article. They shall, in particular, determine the maximum period of exclusion if no measures as specified in paragraph 6 are taken by the economic operator to demonstrate its reliability. Where the period of exclusion has not been set by final judgment, that period shall not exceed five years from the date of the conviction by final judgment in the cases referred to in paragraph 1 and three years from the date of the relevant event in the cases referred to in paragraph 4.’
2. Directive 2014/25/EU (4)
7. According to Article 77 (‘Qualification systems’):
‘1. Contracting entities which so wish may establish and operate a system of qualification of economic operators.
Contracting entities which establish or operate a system of qualification shall ensure that economic operators are at all times able to request qualification.
2. The system under paragraph 1 may involve different qualification stages.
Contracting entities shall establish objective rules and criteria for the exclusion and selection of economic operators requesting qualification and objective criteria and rules for the operation of the qualification system, covering matters such as inscription in the system, periodic updating of the qualifications, if any, and the duration of the system.
Where those criteria and rules include technical specifications, Articles 60 to 62 shall apply. The criteria and rules may be updated as required.
…’
8. Article 80 (‘Use of exclusion grounds and selection criteria provided for under Directive 2014/24/EU’) provides:
‘1. The objective rules and criteria for the exclusion and selection of economic operators requesting qualification in a qualification system and the objective rules and criteria for the exclusion and selection of candidates and tenderers in open, restricted or negotiated procedures, in competitive dialogues or in innovation partnerships may include the exclusion grounds listed in Article 57 of Directive 2014/24/EU on the terms and conditions set out therein.
Where the contracting entity is a contracting authority, those criteria and rules shall include the exclusion grounds listed in Article 57(1) and (2) of Directive 2014/24/EU on the terms and conditions set out in that Article.
If so required by Member States, those criteria and rules shall, in addition, include the exclusion grounds listed in Article 57(4) of Directive 2014/24/EU on the terms and conditions set out in that Article.
…’
B. National law
9. Paragraph 124 of the Gesetz gegen Wettbewerbsbeschränkungen (5) (Law against restrictions on competition) provides:
‘(1) Contracting authorities may, acting with due regard for the principle of proportionality, exclude an undertaking from participation in a public procurement procedure at any time during that procedure where:
…
3. the undertaking has, in the course of business, demonstrably engaged in serious misconduct calling into question the undertaking’s integrity; …
4. the contracting authority has sufficient indications to support the conclusion that the undertaking has concluded with other undertakings agreements or arrangements having the object or effect of impeding, restricting or distorting competition,
…’
10. Paragraph 125 provides:
‘(1) Contracting authorities shall not exclude from the procurement procedure an undertaking caught by a ground for exclusion provided for in Paragraph 123 or Paragraph 124 where that undertaking has proved that it:
1. has paid or undertaken to pay compensation for damage caused by an act constituting a criminal offence or misconduct;
2. has comprehensively clarified the facts and circumstances by actively cooperating with the investigating authorities and the contracting authority; and
3. has adopted specific technical, organisational and personnel measures to prevent further criminal offences or further misconduct.
…’
11. In accordance with Paragraph 126:
‘Where an undertaking caught by a ground for exclusion has adopted no or insufficient measures to reform itself in the manner laid down in Paragraph 125, it may:
1. if caught by a ground for exclusion provided for in Paragraph 123, be excluded from participation in procurement procedures for no more than five years from the date of the conviction by final judgment;
2. if caught by a ground for exclusion provided for in Paragraph 124, be excluded from participation in procurement procedures for no more than three years from the relevant event.’
II. Facts
12. In 2011, Stadtwerke München GmbH (‘Stadwerke München’ or ‘the contracting authority’) established a ‘qualification system’, within the meaning of Article 77 of Directive 2014/25, the purpose of which was to select undertakings to supply it with railway lines. (6)
13. On 4 November 2016, the undertaking Vossloh Laeis GmbH was excluded from that system on the ground that, on 9 March 2016, it had been fined by the Bundeskartellamt (Federal Competition Authority, Germany) for having participated in an active cartel for a number of years up until spring 2011.
14. Those adversely affected by the collusive conduct of the members of the cartel included Stadtwerke München itself, which, for that reason, brought a civil action for damages against Vossloh Laeis.
15. According to the order for reference, Vossloh Laeis had not collaborated with the contracting authority in order to clarify the infringements of the rules on anticompetitive practices. In particular:
— Following the discovery of the cartel in 2011, Vossloh Laeis had not approached the contracting authority or taken the initiative to clarify the facts in full.
— Not until 2016 had it stopped denying to the contracting authority that it had participated in the relevant collusive practices, although it pointed out that it had challenged the decision imposing a fine and described the organisational and personnel measures it had taken in order to clarify the facts and ensure that there would be no repetition of these in the future. It added that it would pay compensation for the damage caused by its unlawful conduct.
16. Nonetheless, Vossloh Laeis would not agree to forward the decision imposing a fine to the contracting authority so that it could examine it. Neither would it agree to cooperate with the contracting authority in order to clarify the offence committed, having taken the view that its cooperation with the competition authority was sufficient.
17. The referring court does not dispute (because the decision imposing a fine itself stated as much) that Vossloh Laeis had afforded ongoing and unrestricted collaboration to the German competition authority during the proceedings before it.
18. The contracting authority took the view that the explanations provided by Vossloh Laeis did not demonstrate that it had taken sufficient steps to reform itself in the manner provided for in Paragraph 125 of the GWB. For that reason, it finally informed the undertaking on 4 November 2016 that it was excluded from the qualification system with immediate effect.
19. Vossloh Laeis challenged that decision before the Vergabekammer Südbayern (Public Procurement Board for Southern Bavaria), which made a reference for a preliminary ruling to the Court of Justice.
III. Questions referred
20. The questions referred for a preliminary ruling are worded as follows:
‘(1) Is legislation of a Member State that makes successful voluntary remedial measures (Selbstreinigung) by an economic operator subject to the condition that it clarifies the facts and circumstances relating to the criminal offence or the misconduct and the damage caused by it in a comprehensive manner by actively cooperating not only with the investigating authorities, but also with the contracting authority, compatible with the provisions of Article 80 of Directive [2014/25] in conjunction with the second subparagraph of Article 57(6) of Directive [2014/24]?
(2) If [Question 1] is answered in the negative: Must the second subparagraph of Article 57(6) of Directive [2014/24] be interpreted, in that context, as meaning that the relevant economic operator is, for there to be successful voluntary remedial measures, in any event required to clarify the facts for the contracting authority to such an extent that the latter may assess whether the measures taken (technical, organisational and personnel measures and compensation for damage) are appropriate and sufficient?
(3) For the optional grounds for exclusion laid down in Article 57(4) of Directive [2014/24], the maximum period or time limit of exclusion is, pursuant to Article 57(7) of Directive [2014/24], three years from the date of the relevant event. Is the fulfilment of the optional grounds for exclusion laid down in Article 57(4) of Directive [2014/24] to be understood as the relevant event or is the relevant date that on which the contracting entity has certain and reliable knowledge of the existence of the ground for exclusion?
(4) Accordingly, for the fulfilment of the conditions for exclusion under Article 57(4)(d) of Directive [2014/24] through participation of an economic operator in a cartel, is the relevant event within the meaning of Article 57(7) of Directive [2014/24] the termination of participation in the cartel or the contracting entity’s acquisition of certain and reliable knowledge of the participation in the cartel?’
IV. Procedure before the Court of Justice and the positions of the parties
21. The reference for a preliminary ruling was registered at the Court on 10 March 2017.
22. Written observations have been lodged by Vossloh Laeis, Stadtwerke München, the German, Greek, Hungarian and Polish Governments and the European Commission, all of which, with the exception of Stadtwerke München and the Polish Government, attended the public hearing held on 21 February 2018.
V. Analysis
23. As a preliminary point, it is appropriate to recall the fact, albeit not called into question by any of the parties, that the classification of the Vergabekammer Südbayern (Procurement Board for Southern Bavaria) as a court or tribunal within the meaning of Article 267 TFEU was recognised by the Court of Justice in the judgment of 27 October 2016, Hörmann Reisen. (7)
24. The four questions raised in these proceedings may be grouped into two. The first and second questions seek to determine whether the collaboration required by the second subparagraph of Article 57(6) of Directive 2014/24 (in order to demonstrate the renewed reliability of an economic operator caught by one of the grounds for exclusion laid down in paragraphs 1 and 4 of that provision) has to be afforded only to the ‘investigating authorities’ or also to the contracting authority if this is provided for in the domestic legislation of a Member State.
25. The remaining two questions have to do with the period of exclusion that may apply to an economic operator which has not adopted the voluntary remedial measures set out in Article 57(6) of Directive 2014/24. In particular, it falls to be clarified what the ‘relevant event’ is to which paragraph 7 of that provision refers as the starting point for that period.
A. The concept of ‘investigating authorities’ within the meaning of the second subparagraph of Article 57(6) of Directive 2014/24 (first and second questions)
1. Summary of the arguments of the parties
26. Vossloh Laeis maintains that, in requiring active collaboration with the contracting authority, the German legislation imposed a condition additional to voluntary remediation, given that the second subparagraph of Article 57(6) of Directive 2014/24 refers only to active collaboration with the investigating authorities.
27. In its view, the terms ‘contracting authority’ and ‘investigating authority’ refer in EU law to different actors performing different functions: while the former awards public contracts, the latter is tasked with investigating criminal offences or any misconduct generally.
28. Vossloh Laeis submits that Article 57 of Directive 2014/24 distinguishes between the remedial measures adopted by the economic operator, on the one hand, and evidence of their effectiveness, on the other. The rationale behind that provision is that the economic operator should adopt the voluntary remedial measures necessary and, then, in the event of participating in a public procurement procedure (be this at the award or pre-qualification stage), should prove to the contracting authority that those measures have been effective. The German legislature departed from that scheme by extending the collaboration requirement, contrary to Directive 2014/24.
29. The Greek Government’s position is, in essence, the same as that adopted by Vossloh Laeis.
30. In the view of Stadtwerke München and the German and Hungarian Governments, on the other hand, the fact that the German legislation has not transposed verbatim the wording of Article 57(6) of Directive 2014/24 is not in any way problematic. The addition of the reference to the contracting authority served to take into account the fact that, in German law, the expression ‘investigating authorities’ could be interpreted as relating only to those responsible for prosecuting criminal offences. In order to avert inadequate transposition, it was essential that that expression be used in its broadest sense, and it was for this reason that the national legislature made it clear that the economic operator has an obligation to collaborate simultaneously with the ‘investigating authorities’ in a strict sense and with the contracting authority as an ‘investigating authority’ in a loose sense. The latter also ‘investigates’ in cases where, in accordance with Article 57(5) and (6) of Directive 2014/24, it examines whether a tenderer is caught by an optional ground for exclusion or satisfies the remediation criteria.
31. At the hearing, the German Government’s representative nonetheless qualified its initial position by stating that the joint reference to the investigating authorities and the contracting authority in the national legislation is not intended to duplicate the same obligation.
32. Stadtwerke München submits that, even if the extension of the duty to collaborate is considered not to be covered by Article 57(6) of Directive 2014/24, EU law does not preclude Member States from adopting stricter measures in this regard. This follows from the spirit, purpose and function of the grounds for exclusion from public procurement.
33. In this connection, it contends that the approach taken by the national legislature is transparent and non-discriminatory. Moreover, the directive does not expressly prohibit the adoption of stricter measures. Finally, the involvement of the contracting authorities in the voluntary remediation process is also necessary, since it is up to them to verify whether economic operators must be excluded from the procedure and, if so, to verify also the voluntary remedial measures which they have put into effect.
34. The Commission maintains that, unlike the term ‘contracting authority’ used in Article 2(1) of Directive 2014/24, the concept of ‘investigating authority’ has not been defined either by that directive or by Directive 2014/25. In its opinion, although the same authority may intervene simultaneously as contracting authority and as investigating authority, the reference to the latter in Article 57(6) of Directive 2014/24 does not appear to be a reference to the contracting authority.
35. The Commission submits that it follows from a schematic interpretation of the provision at issue that, in addition to collaboration with the investigating authorities, there is also a duty to collaborate with the contracting authority, albeit that the latter is of a different nature. In any event, collaboration with the two authorities must not lead to a duplication or repetition of the same obligations.
36. The Commission also takes the view that the cooperation which economic operators may be called upon to afford to each of the two authorities has unique features, which is to say that it is not identical in both cases. The aim pursued by the investigating authorities in conducting their procedures (to detect offences) differs from that of the examination for which the contracting authorities are responsible (to ensure that an economic operator is reliable). The former seek to determine the culpability of the parties involved for past offences. The latter seek to analyse the risks potentially associated with awarding a public contract to a particular tenderer in the future.
2. Assessment
37. Article 57 of Directive 2014/24 contains a series of grounds for excluding economic operators from public procurement procedures. Paragraph 1 sets out the mandatory grounds (‘contracting authorities shall exclude’) and paragraph 4 the optional grounds (‘contracting authorities may exclude’).
38. The optional grounds include the collusive conduct referred to in subparagraph (d): ‘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’, it may deny that economic operator the right to participate in one of those procedures.
39. Unless that disqualification has been ordered by final judgment — in which case it lasts for as long as the court order directs —, the economic operator may make use of the possibility afforded to it by Article 57(6) of Directive 2014/24, that is to say to terminate the normal period of exclusion (8) before it runs its full course.
40. In order to benefit from that possibility, the aforementioned economic operator must show that, ‘despite the existence of a relevant ground for exclusion’ (first subparagraph of Article 57(6) of Directive 2014/24), its later conduct has made it ‘reliable’. In order to ‘demonstrate its reliability’ (ibid.), it ‘may provide evidence to the effect that measures taken by [the economic operator] are sufficient’ (ibid.) for those purposes.
41. The reliability referred to in that provision is a quality which the contracting authority must necessarily assess in accordance with the guidelines contained in the second subparagraph of paragraph 6. It may consider such reliability to have been demonstrated only if the economic operator has: (a) paid — or undertaken to pay — compensation for the damage caused by the offence on account of which it was excluded; (b) clarified the facts and circumstances in a comprehensive manner; and (c) adopted concrete (technical, organisational and personnel) measures that are appropriate to prevent further offences.
42. The referring court’s doubts are concerned only with the second of those conditions and are based on the discrepancy between the second subparagraph of Article 57(6) of Directive 2014/24 (according to which the economic operator must demonstrate that it has ‘clarified the facts and circumstances in a comprehensive manner by actively collaborating with the investigating authorities’) and Paragraph 125(1), point 2, of the GWB (pursuant to which the active collaboration must be with ‘the investigating authorities and [with] the contracting authority’).
43. The reference to ‘contracting authority’ was added to the reference which the EU legislature made to ‘investigating authorities’ with a view, according to Stadtwerke München, to avoiding a restrictive interpretation of Article 57(6) of Directive 2014/24 that would limit the duty incumbent upon the economic operator to collaborate exclusively with the ‘investigating authorities’ in a strict sense (that is to say, with the authorities that prosecute criminal offences or misconduct), thus leaving out of account the fact that, in a broad sense, the contracting authority also investigates in cases where it examines whether an economic operator is caught by a ground for exclusion or has successfully demonstrated, notwithstanding its exclusion, that it is reliable.
44. In my view, however, there is no risk of any misunderstanding due to the presumed imprecision of the second subparagraph of Article 57(6) of Directive 2014/24, in the light of its various language versions.
45. The German version uses the term ‘Ermittlungsbehörden’, which corresponds exactly to that used in other language versions such as the Spanish (‘autoridades investigadoras’), the English (‘investigating authorities’), the French (‘autorités chargées de l’enquête’), the Italian (‘autorità investigative’), the Portuguese (‘autoridades responsáveis pelo inquérito’) or the Dutch (‘onderzoekende autoriteiten’). In all the language versions, moreover, the authorities and bodies that award public contracts or organise procurement procedures are referred to by equally unequivocal terms: ‘poder adjudicador’ in Spanish and ‘öffentliche Auftraggeber’ in German.
46. The issue, then, does not lie in the imprecision of the terms used by Article 57 of Directive 2014/24 to describe bodies of a different nature. The fact is that that same provision confers on contracting authorities, too, certain functions having investigative connotations. Thus, for example:
— Pursuant to paragraph 1, contracting authorities must exclude an economic operator ‘where they have established … or are aware … that that economic operator has been the subject of a conviction by final judgment for [certain] reasons’.
— By the same token, the second subparagraph of paragraph 2 refers to the situation where ‘the contracting authority can demonstrate by any appropriate means that the economic operator is in breach of its obligations relating to the payment of taxes or social security contributions’.
— Finally, other situations listed in paragraph 4 require some investigation (9) by the contracting authorities. For example, pursuant to subparagraph (c), the latter may ‘demonstrate by appropriate means that the economic operator is guilty of grave professional misconduct, which renders its integrity questionable’.
47. In my view, the performance of those functions does not convert the contracting authority into one of the ‘investigating authorities’ referred to in the second subparagraph of Article 57(6) of Directive 2014/24.
48. It is true that the contracting authority must necessarily engage in some investigative activity (in the sense indicated above) in order to establish whether any of the grounds for exclusion referred to in paragraphs 1 and 4 of Article 57 of Directive 2014/24 are applicable. However, the intention behind paragraph 6 of that provision is henceforth not that the contracting authority should determine by itself and in every case the facts capable of triggering exclusion, but that, once the economic operator has been excluded, it should evaluate the evidence presented bythe operator claiming to have reformed itself.
49. The task of the contracting authority in the evaluation of that evidence is therefore passive, while the task that falls to the economic operator is active. The latter must provide the evidential material on the basis of which the contracting authority will make an adjudication, without — I would reiterate — being compelled on every occasion to engage in investigative activity in order to be able to do so.
50. An economic operator which claims to have reformed itself must demonstrate, inter alia, that it has ‘clarified the facts and circumstances in a comprehensive manner by actively collaborating with the investigating authorities’. Logically, it must demonstrate this to the contracting authority, that is to say to the body which, after weighing up the evidence, will decide whether the tenderer has adequately shown itself to be reliable and can therefore be readmitted to procurement procedures.
51. Generally speaking, therefore, the ‘investigating authorities’ to which the second subparagraph of Article 57(6) of Directive 2014/24 refers will not be the same as the contracting authorities. It is to the latter that the tenderer (or the undertaking wishing to join a qualification system, as in this case) has to demonstrate that it has collaborated actively and comprehensively with the investigating authorities in order to clarify the facts. It must, however, necessarily afford that collaboration to an institution other than the contracting authority itself, since its collaboration would otherwise, from the point of view of the latter authority, be a known fact requiring no evidence whatsoever.
52. That conclusion is borne out by the time sequence of the actions to which Article 57(6) refers. What the economic operator has to demonstrate to the contracting authority comprises facts that lie in the past, that is to say at a point in time prior to that when it asks the contracting authority to recognise its reformed status.
53. Thus, the economic operator must have paid or undertaken to pay compensation for the damage caused and must already have adopted appropriate measures to prevent new offences. For exactly the same reason, the clarifications (of the facts and circumstances of the conduct warranting exclusion) must at the time have been offered to an authority other than the contracting authority, to which it need only be demonstrated that those clarifications — as to the payment of compensation or the adoption of appropriate measures, for example — had already been provided.
54. This, in my opinion, is the most plausible interpretation of Article 57(6) of Directive 2014/24. And it is, more specifically, the interpretation best suited to a situation such as that at issue here, in which the conduct giving rise to exclusion (the undertaking’s participation in a cartel) had been assessed and penalised by an ‘investigating authority’: the Federal Competition Authority.
55. In that situation, it does not make any sense to duplicate the obligation to collaborate by also imposing a duty to do so with the contracting authority, as would be the case if an economic operator seeking reformed status after having been excluded were compelled to clarify the same facts and the same circumstances before two different authorities.
56. However, it could be argued (as Stadtwerke München does) that EU law does not preclude Member States from introducing stricter criteria against which economic operators must demonstrate their renewed reliability during the exclusion period. It is therefore feasible to require them to collaborate not only with investigating authorities but also with the contracting authority.
57. That position is supported by not insignificant arguments. On the one hand, Article 57(7) of Directive 2014/24 provides that ‘Member States shall specify the implementing conditions for this Article’. On the other hand, the Court has held, (10) with respect to the optional grounds for exclusion, (11) that the Public Procurement Directive ‘does not provide for uniform application at EU level …, since the Member States may choose not to apply those grounds for exclusion, or to incorporate them into national law with varying degrees of rigour according to legal, economic or social considerations prevailing at national level’.
58. In my opinion, this would be possible only in the case of collaboration different from that, complained of, with the investigating authorities. Thus, the view might be taken that the collaboration with the contracting authority provided for in Paragraph 125(1), point 2, of the GWB does not have the same focus as that which an economic operator is required to afford to the investigating authorities, being concerned rather with conduct the examination and assessment of which as a ground for exclusion is a matter for the contracting authority itself.
59. From this point of view, the provision contained in Paragraph 124(4) of the GWB (12) would make sense: the economic operator must actively collaborate with the contracting authority in order: (i) to clarify the facts and circumstances which may have prompted that authority to form the view that the ground for exclusion which it is responsible for assessing is applicable; and (ii) to persuade the authority that, notwithstanding the foregoing, it is capable of reform.
60. Conversely, an interpretation of the national provision as meaning that the economic operator must cooperate on an equal (and twofold) basis with the contracting authority and the investigating authorities in order to clarify the same facts and circumstances in connection with the same ground for exclusion would give rise to a result not compatible in my opinion with Article 57(6) of Directive 2014/24:
— on the one hand, it would lead to a duplication of obligations owed to institutions, such as the investigating authorities and the contracting authorities, which perform different functions;
— on the other hand, it could leave the economic operator all but defenceless in the case where, in circumstances such as those at issue here, the contracting authority claims to have suffered damage, as a result of the offending conduct on account of which the economic operator was excluded, for which it is seeking compensation. (13)
61. After all, such a duplication of obligations fails to take into account the differences between the antitrust functions of the investigating authorities and the functions performed by the contracting authorities. Moreover, if a contracting authority were put in the position of having to determine whether or not the facts on account of which it considers itself to have suffered damage have been duly clarified, and its role were not therefore confined to ascertaining whether the economic operator collaborated in a comprehensive manner with the investigating authorities in order to clarify those facts, it might not be best placed to adjudicate on the application for recognition of its reformed status with the neutrality and impartiality required.
B. The concept of ‘relevant event’ within the meaning of Article 57(7) of Directive 2014/24 (third and fourth questions)
62. Article 57(7) of Directive 2014/24 provides that Member States ‘shall … determine the maximum period of exclusion if no measures as specified in paragraph 6 are taken by the economic operator to demonstrate its reliability’.
63. However, Member States do not have absolute freedom in this regard, since that provision attaches certain limits to the length of the maximum period. In particular:
— If the period of exclusion has been set by final judgment, that period must be observed in any event.
— If, notwithstanding the existence of a final judgment, that judgment has not specified the period of exclusion, the latter may not last longer than five years from the time of the conviction, in cases involving mandatory grounds for exclusion (provided for in paragraph 1 of that article).
— If there is no final judgment, or that delivered does not indicate the maximum period of exclusion, that period is confined to ‘three years from the date of the relevant event in the cases referred to in paragraph 4’ (optional grounds for exclusion).
64. The foregoing qualification forms the subject matter of the last two questions raised by the referring court, which seeks to dispel doubts about the notion of ‘relevant’.
1. Summary of the observations of the parties
65. Vossloh Laeis submits that the expression at issue refers to the objective existence of the ground for exclusion. If the legislature had preferred that account be taken of the contracting authority’s subjective knowledge, it would have used a form of words to that effect. That inference is supported by the schematic interpretation of that provision, as the date would otherwise fall to be determined by each contracting authority, which would be incompatible with legal certainty.
66. In the view of Stadtwerke München, the decisive point in time is not that at which the conduct giving rise to the optional exclusion takes place (or stops), but when the conditions of exclusion, which include the subjective component (knowledge of the ground for exclusion by the contracting authority) are fully met. On that premiss, the relevant event would normally be the date on which the contracting authority has reliable information on the presence of a ground for exclusion.
67. The position taken by the German and Hungarian Governments is essentially the same. The ‘relevant event’, they contend, is determined by the point at which the contracting authority has certain and reliable information on the existence of the ground for exclusion, that is to say, in the submission of the Hungarian Government, the point at which there is a final decision on the matter.
68. The Greek Government is in favour of applying to the scope of public procurement the provisions of Article 25(2) of Regulation (EC) No 1/2003, (14) so as to ensure that there are no differences with the corresponding administrative or criminal proceedings. It infers from this that what is ‘relevant’ is the point at which the event giving rise to exclusion occurred, rather than when that event came to the knowledge of the contracting authority.
69. In the view of the Polish Government, which has submitted observations in relation to this question alone, the ‘relevant event’ is the conclusion of the agreement which sought to distort competition. If the date of that agreement cannot be specified, regard must be had to the date of the event supporting the likelihood that such an agreement was concluded (this might be, for example, the end date of the procurement procedure during which it was established that the participating economic operators had attempted to distort competition).
70. The Commission considers that account might be taken of three different dates: (1) the date of the behaviour constituting a ground for exclusion; (2) the point at which the criteria governing the application of one of those grounds for exclusion are fulfilled, which, in the case of Article 57(4)(c) and (d) of Directive 2014/24, would be when the contracting authority is able to demonstrate, or has sufficiently plausible indications of, the economic operator’s misconduct; and (3) the date on which the investigating authority established by final decision the existence of improper conduct.
71. For the Commission, legal certainty (the reason behind the time limits on the grounds for exclusion) militates in favour of the first of those three options. However, the risk that the public contract will be awarded to a person who has committed acts of professional misconduct (the very reason for the grounds for exclusion provided for in Directive 2014/24) argues in favour of the second.
72. At the hearing, the Commission invoked the provisions regulating public contracts concluded by the EU institutions, in particular Article 106(14) and (15) of Regulation (EU, Euratom) No 966/2012, (15) which it considered useful for the purposes of interpreting Article 57 of Directive 2014/24 given that there has to be a degree of harmony between the latter and the former provisions. It infers from this that, ultimately, the maximum period for which an economic operator may be excluded is three years from the final decision imposing a penalty adopted by an investigating authority.
2. Assessment
73. As I have already pointed out, Article 57(7) in fine of Directive 2014/24 takes into account, for the purposes of determining the start of the maximum period of exclusion in cases where the latter has not been specified by final judgment, ‘the relevant event in the cases referred to in paragraph 4’. (16) In principle, therefore, this concept includes the conduct or the circumstance described in each of the various situations provided for in the aforementioned Article 57(4).
74. The question, raised by the referring court, as to whether the period of exclusion must be counted from the date on which that conduct or circumstance actually occurs or from the point at which the contracting authority has certain and verifiable information on its existence, is a separate issue.
75. The parties represented in these preliminary ruling proceedings have adopted positions ranging from an objective interpretation predicated on the materialisation of the ‘relevant event’ and a subjective interpretation based on knowledge of that event by the awarding authority.
76. As the Commission has pointed out, while the first position gives priority to ensuring legal certainty, the second is focused on protecting procurement procedures against the risk inherent in admitting tenderers caught by grounds for exclusion.
77. In order to answer the referring court’s question, however, it is not essential to carry out an exhaustive analysis of the timings of the exclusion periods provided for in Directive 2014/24, it being sufficient to have regard to the ground for exclusion specifically at issue here.
78. More particularly, so far as concerns Vossloh Laeis’s participation in a cartel, proved and penalised by the German competition authority, the dispute turns on whether the three-year period starts: (i) when its participation took place or ended (objective approach); or (ii) when the authority, be it the investigating authority or the contracting authority, acquired reliable evidence of the unlawful conduct or imposed a penalty for it (subjective approach).
79. The Greek Government regards as relevant the form of words adopted in Article 25(2) of Regulation No 1/2003 in connection with the starting point for the limitation period applicable to unlawful conduct in matters of competition. That period ‘shall begin to run on the day on which the infringement is committed. However, in the case of continuing or repeated infringements, time shall begin to run on the day on which the infringement ceases’.
80. One might indeed take the view that, if the EU legislature chose to give priority to the offender’s legal certainty over the effectiveness of the Commission’s power to impose penalties, the same criteria can be extrapolated to the start date for the period of exclusion in public procurement procedures.
81. To my mind, however, this is an incomplete view. If that analogy were applied, it would have to be so to its full extent, meaning that — as with limitation periods applicable to conduct that is restrictive of competition — the maximum period of exclusion, once it has started to run, might be interrupted. (17) It might then extend beyond the three years laid down as a limit by Article 57(7) of Directive 2014/24. (18)
82. I am of the view, therefore, that the solution may be arrived at by way of analogy but in accordance with the aforementioned method of applying the rule with due regard to the remaining provisions of the article. It is apparent from those provisions that, where the ground for exclusion is unlawful conduct established by a judgment which does not specify the length of the period of exclusion, the five-year period of exclusion actually starts to run from the date of conviction.
83. That same criterion can in my opinion be applied, without interpretational difficulties, to conduct restrictive of competition the existence of which may be regarded as proved (account being taken of the presumption of innocence) only by way of decision of a court or administrative authority. In that situation, which is the situation at issue here, it is the date of that decision (the conviction in a loose sense) which operates as the ‘relevant event’ for the purposes of establishing the starting point for the three-year period of exclusion.
84. In the circumstances of this case, therefore, Article 57(7) of Directive 2014/24 does not take into account as the ‘relevant event’ the collusive conduct itself but the legal establishment of the existence of that conduct; or, to put it differently, the legal classification of an action for which the authority has already imposed a penalty on the ground that it is unlawful.
85. In other words, where there has been a decision explicitly assessing an economic operator’s participation in a cartel, the ‘relevant event’ which the contracting authority — in receipt of the order or option, as the case may be, to exclude that economic operator — must use to calculate the maximum period of disqualification is not the offending undertaking’s material conduct itself but its classification and punishment as conduct that is restrictive of competition.
86. In my opinion, which happens to be the same as that expressed by the Hungarian Government and, certainly at the hearing, by the Commission, it is that factor which the contracting authority must take as ‘relevant’ for the purposes of determining the maximum period of exclusion applicable to the economic operator in question. In the light of the penalty imposed by the competition authority, the contracting authority needs nothing further, having already been given legal notice of the existence of conduct warranting exclusion. The period of exclusion starts to run from then, that is to say from the date on which the corresponding decision imposing a penalty was issued.
VI. Conclusion
87. In the light of the foregoing, I propose that the Court’s reply to the Vergabekammer Südbayern (Public Procurement Board for Southern Bavaria, Germany) should be as follows:
(1) Article 80 of Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC, in conjunction with the second subparagraph of Article 57(6) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC:
– preclude an economic operator seeking to demonstrate its reliability notwithstanding the existence of a relevant ground for exclusion from having to collaborate actively with the contracting authority in order to clarify in a comprehensive manner the facts and circumstances in the context of which it acted as joint author of agreements intended to distort competition, where that same operator, by clarifying its circumstances in a comprehensive manner, had already actively collaborated with the competition authority which investigated and penalised those facts;
– do not preclude a Member State from requiring such active collaboration with the contracting authority as a condition of the economic operator’s being able to demonstrate its reliability and bring to an end its exclusion from the procurement procedure, in the case of offending conduct the facts and circumstances of which have to be determined by the contracting authority itself.
(2) Where an economic operator is caught by the ground for exclusion provided for in Article 57(4)(d) of Directive 2014/24 for having concluded agreements intended to distort competition which have already been the subject of a decision imposing a penalty, the maximum period of exclusion is calculated from the date of that decision.