OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 28 February 2018(1)
Case C‑14/17
VAR, Srl
v
Iveco Orecchia SpA,
intervener:
Azienda de Trasporti Milanesi SpA — (ATM)
(Request for a preliminary ruling
from the Consiglio di Stato (Council of State, Italy))
(Preliminary-ruling proceedings — Transport contract — Supply of spare parts for buses, trolley-buses and tramways — Technical specifications — Products equivalent to those covered by a specific trade mark — Proof of equivalence — National law pursuant to which proof of equivalence may be provided after the contract is awarded)
1. Contracting authorities are required to define, in the contract documents they publish, the characteristics of the works, services or supplies of goods which they propose to purchase in the context of public procurement. Those characteristics may include the ‘technical specifications’ of the goods or services concerned.
2. A biased description of those technical specifications may, at the very least, amount to a significant ‘barrier to entry’ for certain tenderers and, in extreme cases, predetermine (including fraudulently) the final choice of successful tenderer if characteristics of products or services are stipulated which that tenderer alone is in a position to supply.
3. The concern to prevent these irregular practices and the intention to ‘allow public procurement to be opened up to competition’ (2) led the EU legislature to lay down legislative provisions in this area. Those provisions include Article 34(8) of Directive 2004/17/EC, (3) which is applicable to these proceedings and provides that, on an exceptional basis, it is possible to ‘refer … to trade marks, patents, types or a specific origin or production’, provided that such reference is accompanied by the words ‘or equivalent’.
4. In the proceedings to be decided by the Italian court, the contract documents used that derogating provision, stating that the contract was for the ‘supply of original spare parts and/or original equipment and/or equivalent for buses, trolley-buses and tramways manufactured by Iveco’.
5. The dispute does not concern the validity of that technical specification as such (since it respected the right to supply equivalent parts) but rather the time when a tenderer must provide the certificate of equivalence of the parts.
6. According to the contract documents, proof of equivalence could be presented to the contracting authority after the award of the contract, at ‘the time of the first delivery of an equivalent spare part’. However, the referring court wonders whether that clause may be incompatible with Article 34 of Directive 2004/17. That would be the case if, in accordance with that provision, proof of equivalence must be attached to the tender or, in any event, must be furnished before the contract is awarded.
I. Legal framework
A. EU law. Directive 2004/17
7. Article 34 provides:
‘1. Technical specifications as defined in point 1 of Annex XXI shall be set out in the contract documentation, such as contract notices, contract documents or additional documents. Whenever possible these technical specifications should be defined so as to take into account accessibility criteria for people with disabilities or design for all users.
2. Technical specifications shall afford equal access for tenderers and not have the effect of creating unjustified obstacles to the opening up of public procurement to competition.
3. Without prejudice to legally binding national technical rules, to the extent that they are compatible with Community law, the technical specifications shall be formulated:
(a) either by reference to technical specifications defined in Annex XXI and, in order of preference, to national standards transposing European standards, European technical approvals, common technical specifications, international standards, other technical reference systems established by the European standardisation bodies or — when these do not exist — national standards, national technical approvals or national technical specifications relating to the design, calculation and execution of the works and use of the products. Each reference shall be accompanied by the words “or equivalent”;
(b) or in terms of performance or functional requirements; the latter may include environmental characteristics. However, such parameters must be sufficiently precise to allow tenderers to determine the subject matter of the contract and to allow contracting entities to award the contract;
(c) or in terms of performance or functional requirements as mentioned in subparagraph (b), with reference to the specifications mentioned in subparagraph (a) as a means of presuming conformity with such performance or functional requirements;
(d) or by referring to the specifications mentioned in subparagraph (a) for certain characteristics, and by referring to the performance or functional requirements mentioned in subparagraph (b) for other characteristics.
4. Where a contracting entity makes use of the option of referring to the specifications mentioned in paragraph 3(a), it cannot reject a tender on the ground that the products and services tendered for do not comply with the specifications to which it has referred, once the tenderer proves in his tender to the satisfaction of the contracting entity, by whatever appropriate means, that the solutions which he proposes satisfy in an equivalent manner the requirements defined by the technical specifications.
An appropriate means might be constituted by a technical dossier from the manufacturer or a test report from a recognised body.
…
8. Unless justified by the subject matter of the contract, technical specifications shall not refer to a specific make or source, or to a particular process, or to trade marks, patents, types or a specific origin or production with the effect of favouring or eliminating certain undertakings or certain products. Such reference shall be permitted, on an exceptional basis, where a sufficiently precise and intelligible description of the subject matter of the contract pursuant to paragraphs 3 and 4 is not possible; such reference shall be accompanied by the words “or equivalent”.’
8. Under the heading ‘Criteria for qualitative selection’, Article 54 provides:
‘1. Contracting entities which establish selection criteria in an open procedure shall do so in accordance with objective rules and criteria ...’
B. Italian law
9. In accordance with Article 68(13) of Legislative Decree No 163 of 2006: (4)
‘Unless justified by the subject matter of the contract, technical specifications shall not refer to a specific make or source, or a particular process, or to trade marks, patents, types or a specific origin or production with the effect of favouring or eliminating certain undertakings or certain products. Such references are permitted on an exceptional basis, where a sufficiently precise and intelligible description of the subject matter of the contract pursuant to paragraphs 3 and 4 is not possible, on condition that they are accompanied by the expression “or equivalent”.’
II. Facts of the dispute and questions referred for a preliminary ruling
10. The Azienda Trasporti Milanese (‘ATM’) launched an open procedure (5) for the award of a contract for the ‘supply of original spare parts and/or original equipment and/or equivalent for buses, trolley-buses and tramways manufactured by Iveco’.
11. The value of the contract was EUR 3 350 000.00 plus VAT, for the supply of 2 195 IVECO/FIAT-branded spare parts, or equivalent. The award criterion was the lowest price, with the possibility of a further bid after the initial tenders and between the tenderers placed first in the ranking.
12. The contract documents stipulated that:
– ‘Original spare parts’ meant either spare parts ‘made by the vehicle manufacturer itself’ or spare parts ‘made by the vehicle manufacturer’s suppliers … which are certified by the producer as having been manufactured according to the specifications and production standards defined by the vehicle manufacturer’.
– ‘Equivalent spare parts’ were defined as spare parts ‘made by any undertaking which certifies that the quality of those parts matches that of components used for the assembly of the vehicle and the spare parts supplied by the vehicle manufacturer’. (6)
13. The contract documents stated that ‘at the time of the first delivery of an equivalent spare part, the supplier must provide the certificate of equivalence to the original, this being a necessary condition for acceptance of the product’. (7)
14. Only VAR, s.r.l., tendering for equivalent spare parts, and Iveco Orecchia, s.p.a., tendering for original spare parts, took part in the tendering procedure. The contract was awarded to VAR.
15. Iveco Orecchia contested that decision before the Tribunal Amministrativo Regionale della Lombardia — Milano (Regional Administrative Court of Lombardy — Milan, Italy), which, by judgment No 679 of 11 April 2016, upheld the action.
16. The lower court held that it was the responsibility of the tenderer, pursuant to Article 68 of Legislative Decree No 163 of 2006, to prove, during the procedure, that the spare parts proposed were equivalent to the originals. Accordingly, VAR should be excluded since it had stated its willingness to supply spare parts equivalent to the originals (as permitted by the lex specialis) without providing, either with its tender or during the course of the tendering procedure, the certificates of equivalence to the original products or any other proof.
17. That judgment is the subject of an appeal before the Consiglio di Stato (Council of State, Italy), which points out that the contract documents did not require the tenderer to provide proof of equivalence before the contract was awarded but rather at the time of the first delivery of the spare parts.
18. That court takes the view that, since the Italian provision implementing Directive 2004/17 is a verbatim copy of Article 34(8) of that directive, any conflict between national law and EU law can, in principle, be ruled out. However, the referring court is uncertain whether Directive 2004/17 should be interpreted systematically, such that, pursuant to it, proof of equivalence must be furnished at the time when the tender is submitted.
19. Against that background, the Consiglio di Stato (Council of State) seeks a preliminary ruling from the Court on the following questions:
‘(a) Must Article 34(8) of Directive 2004/17/EC be interpreted as meaning that it requires that proof that the products to be supplied are equivalent to the original products be presented at the stage of submission of the tender?
(b) In the alternative, in the event that Question (a) on interpretation is to be answered in the negative: Which steps are required to ensure that there is respect for the principles of equal treatment and impartiality, of open competition and sound administration, and for other tenderers’ rights of defence and right to be heard?’
III. Summary of the parties’ observations
20. VAR and the ATM submit that the first question must be answered in the negative. Relying on the fact that the interpretation of provisions of EU law must take account not only of the wording of those provisions but also of their context and the aim which they pursue, VAR and the ATM argue that:
– Article 34(8) of Directive 2004/17 contains no requirement that tenderers must present proof of equivalence with their tenders.
– In the cases referred to in Article 34(3) and (4) of Directive 2004/17, the quality of the goods to be supplied is described. Accordingly, a tender who proposes to submit a tender relating to the goods referred to in paragraph 4, whose technical features do not match those set out in the technical specifications of the contract documents, will have to prove that the alternatives he proposes are functionally equivalent in order to meet the contracting authority’s requirements.
– However, in the case referred to in Article 34(8) of Directive 2004/17, the features, functions and performance of the product to be supplied are not described; all that is required is the supply of the product defined in the contract documents, albeit from a source different to that of the product made by the original manufacturer because these are cases where such a description is not possible without reference to a specific trade mark.
– In that situation, in order to protect free competition, tenderers are allowed to tender for equivalent products, even though these are covered by a different trade mark, without having to present proof of equivalence under Article 34(3) and (4) of Directive 2004/17. A converse interpretation would lead to unfair outcomes and it would be difficult to understand why, where the contracting authority used a reference to a trade mark with the intention of simplifying the procedure, the tenderer should be in a more unfavourable situation than if the traditional methods of defining the technical features had been used.
– the requirement that proof of equivalence must be provided with the tender is incompatible with the objective of enabling the opening-up of public procurement to competition, for it means that proof of equivalence must be available in advance, in relation to a large number (sometimes thousands) of products which, ultimately, the administrative authorities may not purchase. It is, therefore, an unnecessary and onerous burden which makes it excessively difficult for the suppliers of ‘equivalent products’ to participate in such procedures, to the benefit of distributors of original spare parts and vehicle manufacturers.
– The Commission notice of 28 May 2010 on Supplementary guidelines on vertical restraints in agreements for the sale and repair of motor vehicles and for the distribution of spare parts for motor vehicles (8) confirms, as regards competition policy in the motor vehicle sector, the need to protect access by spare parts manufacturers to the second-hand market. That ensures that competing brands of spare parts continue to be available to both independent and authorised repairers, as well as to wholesale distributors.
21. As regards the second question, VAR and the ATM submit that the mechanisms for guaranteeing respect for the principles which the referring court cites are derived from the documents governing the tendering procedure, as determined by the contracting authority.
22. Iveco Orecchia, the Italian Government and the Commission maintain that Article 34(8) of Directive 2004/17 does not require that proof of equivalence be furnished with the tender but, interpreted systematically, it leads to that conclusion.
23. Iveco Orecchia and the Italian Government submit that proof of equivalence must be presented with the tender, whereas the Commission submits that it is sufficient if proof is presented during the tendering procedure, provided this is done before the contract is awarded. Their arguments may be summarised as follows:
– Although Article 34(4) and (5) of Directive 2004/17 indicates the tender as the stage when a tenderer must provide proof of equivalence, the fact that Article 34(8) remains silent on that point does not meant that there is a derogation from that rule.
– The purpose of Article 34(8) of Directive 2004/17 is, first, to prohibit the use in the tender documents of technical specifications referring to a specific make or source and, second, to indicate the exceptional circumstances in which such wording is permitted. Since that is the specific content given to the provision by the EU legislature, it is unsurprising that the legislature did not find it necessary to state, in addition, the time when proof of equivalence must be included.
– Regardless of the subject matter of the contract, proof of equivalence is aimed at enabling the contracting authority to verify the extent to which a tenderer is capable of complying with the contractual conditions. That proof must be provided during the procedure for the award of the contract, for, at the end of that procedure, the contracting authority must decide on the award of the contract on the basis of the tender which best satisfies the terms of the conditions governing the invitation to tender.
– A different interpretation would lead to conflict between Article 34(4) and (5), on the one hand, and Article 34(8), on the other, of Directive 2004/17, contrary to the principle of equal treatment. If tenderers were permitted to provide proof of equivalence after the contract had been awarded, the tenders would no longer be comparable and some tenders might have presented such evidence whilst others might have chosen to do so later.
– More important still, the contracting authority would run the risk of undertaking to purchase products not suitable for meeting its requirements, which would leave it with the only option of declaring the contract null and void, which, Iveco Orecchia, the Italian Government and the Commission state, was not the EU legislature’s intention when it drafted Directive 2004/17.
– That interpretation is confirmed by other provisions of Directive 2004/17, such as Article 49(2), second indent, which provides that ‘contracting entities shall, as soon as possible, inform … any unsuccessful tenderer of the reasons for the rejection of his tender, including … the reasons for their decision of non-equivalence or their decision that the works, supplies or services do not meet the performance or functional requirements’. Naturally this means that the examination of the equivalence of the product, to the product described in the contract documents, through the use of technical specifications, must take place before the contract is awarded.
– Article 51(3) of Directive 2004/17 takes the same line. Proof of equivalence is essential in order to verify that the tender complies with the technical specifications, which must be done, in all cases, before the contract is awarded.
IV. Procedure before the Court of Justice
24. The order for reference was received at the Registry of the Court on 11 January 2017.
25. Written observations were lodged by VAR, Iveco Orecchia, the ATM, the Italian Government and the European Commission. All those parties, with the exception of the Italian Government, attended the hearing held on 6 December 2017.
V. Assessment
A. Introductory remarks
26. As I have pointed out above, the formulation of technical specifications in the terms governing public procurement procedures may have a significant (possibly negative) effect on competition, by erecting unjustified barriers to the participation of economic operators.
27. The EU legislature’s concern in that regard is quite clear and that is why it included in Article 34(2) of Directive 2004/17 the rule that ‘technical specifications shall … not have the effect of creating unjustified obstacles to the opening up of public procurement to competition’. (9)
28. Since the contract at issue concerns the supply of spare parts for motor vehicles, I believe it is helpful, before analysing Directive 2004/17, to recall that, in the motor vehicle sector, the EU legislature combined the protection of competition with a system of block exemptions, reflected in Regulation (EC) No 1400/2002. (10) Within the framework of that regulation, the EU legislature sought specifically to preserve competition (11) between original spare parts and spare parts of matching quality. (12)
29. The Commission shares that aim, which led it to adopt, in 2010, supplementary guidelines on Regulation No 461/2010. In point 18 of those guidelines the Commission points out that their objective is ‘to protect access by spare parts manufacturers to the motor vehicle aftermarkets, thereby ensuring that competing brands of spare parts continue to be available to both independent and authorised repairers, as well as to parts wholesalers’.
30. The Commission observes in those guidelines that ‘the availability of [spare parts] brings considerable benefits to consumers, especially since there are often large differences in price between parts sold or resold by a car manufacturer and alternative parts’. (13) The restriction of competition may harm consumers in particular by ‘limiting the choice of products, lowering their quality or reducing the level of product innovation’. (14)
31. Whilst the protection of competition in relation to vertical agreements focuses on the market power of producers and its effect in controlling supply, public procurement is more concerned with the sphere of demand. However, the same effect of limiting supply may be felt from the perspective of a contracting authority which demands goods or services if it sets out technical specifications which unjustifiably reduce the pool of potential tenderers. On that basis, the benefits of competition in the area of private contracts may be transposed to the area of public contracts.
32. The legislative intervention referred to suggests that, in the sector of private procurement of motor vehicle spare parts, the principle of opening-up to competition must foster a trend whereby original spare parts and spare parts of matching quality can be supplied on an equal footing. That same trend must, a fortiori, apply to public procurement.
B. The first question
33. The inclusion, in invitations to tender for public contracts or in the relevant contract documents, of technical specifications which refer to a specific trade mark was examined by the Court before the adoption of the 2004 directives on public procurement.
34. While Directive 77/62/EEC (15) was in force, the Court examined, in Commission v Netherlands, (16) a term in a public contract which named the UNIX operating system without including the words ‘or equivalent’. The Court found that ‘the fact that the term UNIX was not followed by the words “or equivalent” may … deter economic operators using systems similar to UNIX from taking part in the tendering procedure’.
35. That line of case-law continued while Directive 93/37/EEC was in force. (17) In Commission v Austria, (18) the Court upheld the Commission’s complaint that Austria’s wording of the technical specification in the contract documents for a public contract ‘had the effect of favouring “Unix products”’, thereby infringing Article 10(6) of Directive 93/37.
36. The idea underpinning those judgments was that where, on an exceptional basis, it is permitted to use a trade mark to define the technical specifications, the category of persons targeted needs to be widened through use of the words ‘or equivalent’. That enables the participation of tenderers other than those who manufacture the original articles, thus helping to prevent the creation of unjustified obstacles to the opening-up of public procurement to competition.
37. Article 34(8) of Directive 2004/17 contains no legislative direction regarding the time when proof of equivalence of spare parts must be provided to the contracting authority. That silence allows Member States to lay down rules of national law governing this matter in accordance with their own criteria, either using a general provision or granting discretion to their contracting authorities. However, they must be guided by the basic principles underpinning public procurement. (19)
38. Must Article 34(8) of Directive 2004/17, in conjunction with Article 34(3) and (4) thereof, be interpreted as meaning that the certificate of equivalence must, of necessity, be provided with a tenderer’s tender? The arguments relied on by those who opt for that approach are not without merit from the perspective of ensuring that the right contractor is selected. (20)
39. Such proof of equivalence is one of the criteria by means of which the contracting authority establishes whether a tenderer is in a position to meet his contractual obligations. It must, therefore, be provided before the contract is awarded because otherwise the only option would be to terminate the contract on the grounds that the contractor is in breach of his obligations.
40. Furthermore, given that Article 34(8) of Directive 2004/17 simply lays down the general prohibition of technical specifications which refer to a specific trade mark and defines the exceptional circumstances in which that is permitted, it is necessary to apply the same criteria as those in paragraphs 3 and 4. In line with those criteria, it appears that proof must accompany the tender.
41. Whilst that line of reasoning is acceptable, it is possible that it does not take into account other elements of the decision-making process. In particular, Article 34(3) and (4) of Directive 2004/17 allows contracting authorities considerable latitude, when drawing up technical specifications, to deal with the objectives of a contract from a functional point of view, meaning that tenderers may submit alternatives which satisfy those objectives, including, obviously, solutions equivalent to those sought in the contract documents. That is why it makes sense that, in those cases, the contracting authority should have the assessment criteria for the different tenders, including proof of equivalence, at its disposal from the outset.
42. The situation changes slightly when the technical specifications refer directly to a trade mark or a product model, as in this case. The general rule, laid down in Article 34(4) of 2004/17, that technical specifications must be openly worded is reaffirmed in Article 34(8), which prohibits the unjustified restriction of the field of assessment.
43. The reason for a specific reference to a trade mark, patent or similar concept (provided that the words ‘or equivalent’ are added) is that the scope for vagueness disappears. Where, for example, it is only possible to supply vehicle spare parts covered by a single trade mark (in this case, IVECO), or their equivalent, the contracting authority has already chosen to provide ‘a sufficiently precise and intelligible description of the subject matter of the contract’. That is the crucial difference vis-à-vis Article 34(3) and (4) of Directive 2004/17, which allows the requirements concerning certificates of equivalence to be treated differently. (21)
44. It is the contracting authority which is best placed to define its requirements by means of technical specifications. In a situation like that in the main proceedings, where the only option is to supply spare parts for a specific type of vehicle, the definition by reference to a trade mark appears to be appropriate and no one disputes it.
45. The Commission draws attention to the fact that the lack of prior certification of equivalence creates the risk for the contracting authority of purchasing a number of unsuitable products and being obliged to terminate the contract. To bolster its argument regarding selection of the best candidate, the Commission cites the judgment in CoNISMa, (22) in which the Court held that the harmonisation of the directives on procurement was also carried out in the interests of contracting authorities.
46. That judgment undoubtedly draws attention to the position of the public procuring entity, which is required to uphold the general interest. However, like others before and after it, the judgment also points out that ‘one of the primary objectives of Community rules on public procurement is to attain the widest possible opening-up to competition … and that it is the concern of Community law to ensure the widest possible participation by tenderers in a call for tenders’. (23) In addition, I repeat, while that judgment refers to the interest of the contracting authority, it does so in so far as wider participation allows the contracting authority ‘greater choice as to the most advantageous tender which is most suitable for the needs of the public authority in question’. (24)
47. Nevertheless, neither that judgment nor those cited above directly address the issue raised in this reference for a preliminary ruling: when, in accordance with Directive 2004/17, is a tenderer who tenders for equivalent spare parts required to provide documentary proof that those spare parts match the originals?
48. The concern not to undermine the success of the procedure is of course legitimate and that could occur where a contracting authority which has not required such proof at the outset is ultimately faced with the fact that the successful tenderer is not able to prove the equivalence of its spare parts.
49. However, that concern cannot override the fundamental principles of public procurement, in particular, the principle that tenderers must be guaranteed equal access and must not be faced with ‘unjustified obstacles to the opening up of public procurement to competition’. I shall refer to both of these principles below.
50. The principle of equal treatment is not infringed if all tenderers are afforded the opportunity to provide their certificates of equivalence at the time of delivery of spare parts. Contrary to what one of the parties has argued, that requirement does not destabilise the position of tenderers, who are free, at their own choice, to attach that proof to their tenders or to wait until the outcome of the award procedure. All that is required of them, from that perspective, is that they comply with the relevant term, which must be clear and must be applied without exceptions. (25)
51. I do not believe, therefore, that the equal treatment of tenderers is jeopardised because proof of equivalence may be submitted during the stage of performance of the contract. On the contrary, requirement of such proof at an earlier stage could discriminate against tenderers by giving a manufacturer of original spare parts an advantage over a tenderer who tenders for equivalent spare parts, where the latter has not already made those parts. It must be assumed that, in many cases (and this would be one), a tenderer who tenders for equivalent spare parts is not in possession, beforehand, of all the certificates relating to each model.
52. There was a debate at the hearing regarding how a contracting authority could evaluate the quality of the products to be supplied before the award of the contract if proof that those products are not of ‘matching quality’ is not provided. It is helpful to refer to the Supplementary Guidelines for a clearer definition of the term ‘matching quality’ as applied to motor vehicle spare parts. (26)
53. Those guidelines establish a rebuttable presumption of qualitative suitability, in accordance with which the recipient of spare parts (in this case, the contracting authority) can be confident that the products made available to him, even though they are of equivalent quality, will meet the necessary requirements for the assigned function. When applied to the area of public procurement, that presumption helps to place all suppliers on an equal footing. (27)
54. An analysis from the perspective of the widest possible opening-up of procurement to competition supports that view: the duty to provide certificates of equivalence before the contract is awarded may, depending on the circumstances of each call for tenders, become a disproportionate obstacle which impedes the participation of economic operators seeking to tender for their products. (28)
55. The contract announced by ATM is a good example of a tendering procedure in which the contracting authority may reasonably be allowed sufficient latitude to set the standard of ex post facto proof that it stipulated in the contract documents. If it had imposed the obligation to provide the certificate of equivalence with the tender, a candidate tendering for non-original spare parts would have been obliged either to manufacture each of the parts (in the main proceedings, 2 195) ‘as a precaution’ or to have certificates (in the same amount) for all the parts to be supplied. However, a manufacturer of original spare parts would have the advantage of all the parts already being made.
56. According to the contract documents, the decisive criterion in the call for tenders published by ATM was the ‘most economically advantageous tender’, which was identified following the bids of the two tenderers which submitted tenders. Before that time, the contracting authority was required to weigh up each tenderer’s suitability by evaluating, inter alia other factors, their technical ability to perform the contract.
57. In fact, the arguments put forward by those who maintain that the certificates of equivalence should, of necessity, have been submitted before the award of the contract make proof of equivalence the decisive driver in the evaluation of technical ability.
58. I believe, however, that a contracting authority may use other criteria to evaluate candidates’ technical ability, (29) even if the certificates of equivalence for each of the parts sought in the call for tenders are not provided at the outset. To put it another way, proof that a manufacturer or supplier of non-original spare parts has the necessary technical ability to perform the contract may be provided by other means (for example, by requiring a certain amount of previous experience in the manufacture or supply of spare parts, even if these are covered by other trade marks).
59. Indeed, the tender specifications published by ATM contained a reference to the ‘information and formalities required for evaluating conformity with the criteria’ relating to technical ability. (30) In those tender specifications, candidates were asked, inter alia other requirements, for documentary proof that they had ‘carried out successfully in the last three years (2012-2013-2014) the supply of original spare parts … or equivalent for buses, trolley-buses or commercial vehicles manufactured by IVECO’ and that they had ‘concluded successfully in the last three years … at least two contracts for the supply of the abovementioned products, for a value exceeding EUR 750 000’. (31)
60. Tender specifications worded in that way are, in themselves, restrictive, for they limit the class of person targeted to those who have already made spare parts under the IVECO brand, whether original or equivalent, which prevents other manufacturers from participating. In my view, the contracting authority, which had already imposed those strict conditions, could reasonably have taken them into account as criteria for evaluating the technical ability of the tenderers, without having to impose on them the additional requirement that they provide, at the outset, certificates of equivalence for the 2 195 parts to which the supply contract refers. (32)
61. Those considerations lead me to propose a negative answer to the first question referred for a preliminary ruling: limiting the uncertainty of the Consiglio di Stato (Council of State) to the question of whether Article 34(8) of Directive 2004/17 requires that proof of equivalence be presented at the stage of submission of the tender, the answer must be not necessarily.
62. That provision does not lay down such an obligation because it leaves the Member State (or, if the national legislation allows, the contracting authority) free to stipulate when certificates of equivalence must be presented. It does not predetermine a single solution because the legislature decided, wisely, that it should be the Member States and their contracting authorities which weigh up the advantages and disadvantages of choosing one or other solution.
63. In a situation like that in the instant case, in view of the number of spare parts for which certificates of equivalence were required, I believe it is appropriate that submission of the relevant certificates of equivalence should be accepted at a time after submission of the initial tenders or even after the award of the contract, since the contract documents include strict criteria for confirming the technical ability of tenderers.
64. I must add a final point, in line with those I made in the Opinion in Specializuotas transportas, (33) concerning a requirement ‘which is not set out in the contract documents, is not provided for in national law and is not laid down in Directive 2004/18’. Where a tenderer has relied on the terms of the tender specifications which allow him, expressly, to provide the certificates of equivalence subsequently, refusal to allow those certificates to be provided subsequently will not pass the transparency test which the Court required, observing that ‘the principles of transparency and equal treatment which govern all procedures for the award of public contracts require the substantive and procedural conditions concerning participation in a contract to be clearly defined in advance and made public, in particular the obligations of tenderers, in order that those tenderers may know exactly the procedural requirements and be sure that the same requirements apply to all candidates’. (34)
65. I therefore propose a negative reply to the first question referred for a preliminary ruling.
C. The second question
66. The second question is raised in case the first question is answered in the negative, as I propose. The Consiglio di Stato (Council of State) asks the Court how respect for the principles of equal treatment and impartiality, of open competition and sound administration, and for other tenderers’ rights of defence and right to be heard are to be ensured.
67. The question is excessively general and the order for reference does not explain why those principles would be jeopardised if the certificate of equivalence were accepted after submission of the tender.
68. The order for reference (correctly) emphasises the issues of interpretation relating to the various articles of Directive 2004/17, but, I repeat, it includes no actual reference (by the referring court) (35) to those principles.
69. The Court’s role in references for preliminary rulings is not to make abstract declarations concerning how certain general principles might be applied but rather to provide the national court with an interpretation of EU law which may be useful to it when it decides on the proceedings before it.
70. From that point of view, the considerations which I set out when proposing the answer to the first question already provide the referring court with sufficient interpretative guidance on the application to the instant case of at least some of the principles to which it refers: equal treatment, promotion of competition and impartiality of the contracting authority.
71. As regards the remaining principles referred to, I fail to see why the rights of defence and the principle that all tenderers (and perhaps all litigants) should be heard would be affected, whatever the reply to the first question. The two operators which took part in the tendering procedure at issue were able to explain their arguments, in favour of or against ATM’s decision, before the national courts, without any infringement of their rights to a fair trial and to judicial protection (which, obviously, does not have to coincide with the success of their respective claims in the proceedings).
72. As regards the right to sound administration, presumably, in the context of the reference for a preliminary ruling, the Consiglio di Stato (Council of State) was seeking to refer to the principle of good administration enshrined in Article 41 of the Charter of Fundamental Rights of the European Union. Suffice it to state, in that connection, that that right may be exercised as against institutions, bodies, offices and agencies of the European Union and, therefore, may not be relied on as against a transport undertaking of a Member State which operates as a company limited by shares, as is the case of ATM (even if it could be treated in the same way as a public authority under national law).
73. In those circumstances, I believe that it is not necessary to reply to the second question.
VI. Conclusion
74. In the light of the foregoing considerations, I propose that the Court reply as follows to the Consiglio di Stato (Council of State, Italy):
Article 34(3), (4) and (8) of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors must be interpreted as meaning that it does not require a tenderer to provide with his tender certificates confirming that motor vehicle spare parts are equivalent to the originals where:
– the technical specifications in the contract documents have been expressed, on an exceptional basis, by a reference to a specific trade mark ‘or equivalent’; and
– the contract documents have also stipulated that those certificates may be submitted at the time of the first delivery of an equivalent spare part.