Request for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 2 February 2022 – Infraestruturas de Portugal, S.A., Futrifer Indústrias Ferroviárias, S.A. v Toscca Equipamentos de Madeira, Lda.

(Case C-66/22)

Language of the case: Portuguese

Referring court

Supremo Tribunal Administrativo

Parties to the main proceedings

Appellants: Infraestruturas de Portugal, S.A., Futrifer Indústrias Ferroviárias, S.A.

Defendant: Toscca Equipamentos de Madeira, Lda.

Questions referred

Does the ground for exclusion provided for in Article 57(4)(d) of Directive 2014/24/EU ¹ constitute a matter reserved for decision by the contracting authority?

May the national legislature fully replace the decision that should be taken by the contracting authority under Article 57(4)(d) of Directive 2014/24/EU with a generic decision (with the effects of a decision) from its national competition authority to impose an ancillary penalty consisting of prohibition from participating in public procurement procedures for a certain period, adopted in the context of the imposition of a fine for infringement of competition rules?

Should the contracting authority’s decision concerning the ‘reliability’ of the economic operator in view of its compliance (or non-compliance) with the rules of competition law, beyond the scope of the specific tendering procedure, be interpreted as requiring an assessment based on the relative suitability of that economic operator, which constitutes a concrete expression of the right to good administration under Article 41(2)(c) of the Charter of Fundamental Rights of the European Union?

May the solution adopted in Portuguese law under Article 55(1)(f) of the CCP, ¹ whereby the exclusion of an economic operator from a tendering procedure on grounds of infringement of competition rules unrelated to that specific procurement procedure is subject to a decision from the competition authority in the context of an application of an ancillary penalty consisting of a prohibition from tendering, a procedure in which it is the competition authority itself that assesses the relevance of the corrective measures taken, be regarded as consistent with EU law, specifically, Article 57(4)(d) of Directive 2014/24/EU?

Furthermore, may the solution adopted under Portuguese law in Article 70(2)(g) of the CCP, which limits the possibility of excluding a tender due to significant evidence of acts, agreements, practices or information that are liable to distort competition rules in the specific procurement procedure in which such practices are detected, be regarded as consistent with EU law, and in particular with Article 57(4)(d) of Directive 2014/24/EU?

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¹ 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 (OJ 2014 L 94, p. 65).

¹ Código dos Contratos Públicos (Public Procurement Code).