Request for a preliminary ruling from the Symvoulio tis Epikrateias (Greece) lodged on 21 October 2019 — NAMA Symvouloi Michanikoi kai Meletites A.E. — LDK Symvouloi Michanikoi A.E., NAMA Symvouloi Michanikoi kai Meletites A.E.,LDK Symvouloi Michanikoi A.E.v Αrchi Εxetasis Prodikastikon prosfygon (ΑΕPP), ATTIKO METRO A.E.

(Case C-771/19)

Language of the case: Greek

Referring court

Symvoulio tis Epikrateias

Parties to the main proceedings

Applicants: NAMA Symvouloi Michanikoi kai Meletites A.E.— LDK Symvouloi Michanikoi A.E., NAMA Symvouloi Michanikoi kai Meletites A.E., LDK Symvouloi Michanikoi A.E.

Defendants: Αrchi Εxetasis Prodikastikon Prosfygon (ΑΕPP), ATTIKO METRO A.E.

Questions referred

1.    a) Do Articles 1(3), 2(1)(a) and (b) and 2a(2) of Council Directive 92/13/ΕEC 1 of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1992 L 76, p. 14), interpreted in light of the judgments in Fastweb (C-100/12), PFE (C-689/13), Archus and Gama (C-131/16) and Lombardi (C-333/18), conflict with national judicial practice whereby if, by decision of the contracting authority, one competitor is excluded from, and another interested party (competitor) is admitted to, a stage of the procurement procedure prior to the final contract award stage (for example the stage for the examination of technical bids) and the court with jurisdiction dismisses the part of its application for suspension contesting its exclusion, the excluded competitor retains a legal interest in contesting the admission of the other competitor, by the same application for suspension, only if the other competitor was admitted in breach of the same criterion?

b) If the answer to Question 1a is in the affirmative, do the above provisions mean that the tenderer excluded as described above may, by its application for suspension, raise any complaint against the participation of its competitor in the procurement procedure; in other words, it may also complain of other, separate, shortcomings in the competitor’s bid which have no bearing on the shortcomings for which its bid was excluded, in order to obtain suspension of the competition and of the award of the contract to its competitor in a decision to be adopted at a later stage of the procedure, so that if the main remedy (application for annulment) is subsequently upheld, its competitor will be excluded, the contract award will be cancelled and the only remaining possibility will be to launch a new contract award procedure in which the excluded applicant will participate?

2.    In light of the judgment in Bietergemeinscaft Technische Gebäudebetreuung und Caverion Österreich (C-355/15), is the answer to the previous question affected by the fact that provisional (but not final) judicial protection depends on an application for review having previously been dismissed by an independent national review board?

3.    Is the answer to the first question affected by (a) the finding that, if the excluded tenderer’s complaints against its competitor’s participation in the competition are upheld, it will not be possible to issue a new notice of competition or (b) the fact that the reason the applicant was excluded will make it impossible for it to participate if a new competition is announced?

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1 Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1992 L 76, p. 14).