OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 17 September 2020 (1)
Case C‑387/19
RTS infra BVBA,
Aannemingsbedrijf Norré-Behaegel
v
Vlaams Gewest
(Request for a preliminary ruling
from the Raad van State (Council of State, Belgium))
(Reference for a preliminary ruling – Public procurement of works, supplies and services – Conduct of the procedure – Grounds for exclusion – Evidence of reform measures – Detailed rules)
1. Article 57 of Directive 2014/24/EU (2) governs the grounds for excluding economic operators from participating in public procurement procedures.
2. Those operators may nonetheless provide evidence to show that the measures they have taken are sufficient to demonstrate that they are reliable, despite having been caught by one of those grounds for exclusion. The self-cleaning permitted by Article 57(6) is one of the new features of Directive 2014/24 as compared with Directive 2004/18/EC, (3) which preceded it.
3. The Court has already examined Article 57 of Directive 2014/24 on a number of occasions, including in relation to paragraph 6 thereof. (4) It has not, however, ruled on whether the contracting authority may make it a condition of qualifying for self-cleaning that the economic operator act on its own initiative, as is the case here.
I. Applicable law
A. EU law
1. Directive 2014/24
4. Recitals 101 and 102 state:
‘(101) Contracting authorities should further be given the possibility to exclude economic operators which have proven unreliable, for instance because of violations of environmental or social obligations, including rules on accessibility for disabled persons or other forms of grave professional misconduct, such as violations of competition rules or of intellectual property rights. …
Bearing in mind that the contracting authority will be responsible for the consequences of its possible erroneous decision, contracting authorities … should be able to exclude candidates or tenderers whose performance in earlier public contracts has shown major deficiencies with regard to substantive requirements, for instance failure to deliver or perform, significant shortcomings of the product or service delivered, making it unusable for the intended purpose, or misbehaviour that casts serious doubts as to the reliability of the economic operator. National law should provide for a maximum duration for such exclusions.
In applying facultative grounds for exclusion, contracting authorities should pay particular attention to the principle of proportionality. …
(102) 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. … 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.’
5. According to Article 18(1) (‘Principles of procurement’):
‘Contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.
…’
6. Article 56(1) (‘General principles’) provides:
‘Contracts shall be awarded on the basis of criteria laid down in accordance with Articles 67 to 69, provided that the contracting authority has verified in accordance with Articles 59 to 61 that all of the following conditions are fulfilled:
…
(b) the tender comes from a tenderer that is not excluded in accordance with Article 57 …’.
7. Article 57 (‘Exclusion grounds’) states:
‘…
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:
…
(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;
…
(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.
…
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.
…
The measures taken by the economic operators shall be evaluated taking into account the gravity and particular circumstances of the criminal offence or misconduct. …
…
7. By law, regulation or administrative provision and having regard to Union law, Member States shall specify the implementing conditions for this Article. …’
8. Article 59 (‘European Single Procurement Document’) stipulates:
‘1. At the time of submission of requests to participate or of tenders, contracting authorities shall accept the European Single Procurement Document (ESPD), consisting of an updated self-declaration as preliminary evidence in replacement of certificates issued by public authorities or third parties confirming that the relevant economic operator fulfils the following conditions:
(a) it is not in one of the situations referred to in Article 57 in which economic operators shall or may be excluded;
…
4. A contracting authority may ask tenderers and candidates at any moment during the procedure to submit all or part of the supporting documents where this is necessary to ensure the proper conduct of the procedure.
…’
2. Implementing Regulation (EU) 2016/7 (5)
9. In accordance with Article 1:
‘From the moment the national measures implementing Directive 2014/24/EU enter into force, and at the latest from 18 April 2016, the standard form set out in Annex 2 to this Regulation shall be used for the purposes of drawing up the European single procurement document referred to in Article 59 of Directive 2014/24/EU. Instructions for its use are set out in Annex 1 to this Regulation.’
B. Belgian law
10. Article 61(2), point 4, of the koninklijk besluit van 15 juli 2011 plaatsing overheidsopdrachten klassieke sectoren states: (6)
‘In accordance with Article 20 of the Law, a candidate or tenderer who … has been guilty of grave professional misconduct may be excluded from the procedure at any time.’
11. Article 70 of the wet van 17 juni 2016 inzake overheidsopdrachten provides: (7)
‘Any candidate or tenderer who is in one of the situations referred to in Articles 67 or 69 may provide evidence to show that the measures it has taken are sufficient to demonstrate its reliability despite the existence of a relevant ground for exclusion. If the contracting authority considers that evidence to be sufficient, the candidate or tenderer concerned shall not be excluded from the award procedure.
To that end, the candidate or tenderer shall prove [on its own initiative] that it has paid or undertaken to pay compensation in respect of any damage caused by the criminal offence or misconduct, has 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.
…’
II. Facts and questions referred for a preliminary ruling
12. In May 2016, the Flemish Administration (8) published a notice of a public call for tenders for works contract X40/N60/54, concerning the remodelling of the Nieuwe Steenweg (N60) junction and the access and exit spurs to and from the E17 in De Pinte. (9)
13. The notice made formal reference to the application of the grounds for exclusion under Article 61(1) and (2) of the Royal Decree of 15 July 2011, including the previous commission of an act of grave professional misconduct. (10)
14. The contracting authority, by decision of 13 October 2016, chose to exclude one of the tenderers (a joint venture made up of Norré Behaegel and RTS infra BVBA; ‘RTS-Norré’) from the procedure because its members had previously committed acts of grave professional misconduct. (11)
15. The contract was awarded to another tenderer, which had submitted the economically most advantageous tender.
16. The undertakings comprising RTS-Norré challenged the decision of 13 October 2016 before the Raad van State (Council of State, Belgium). They claimed that, before being excluded, they should have been allowed to demonstrate that they had taken corrective measures evidencing their reliability, in accordance with Article 57(6) of Directive 2014/24. In their view, that provision is directly applicable.
17. They also argued that the defendant administration had acted negligently and had infringed a number of principles: the right to a fair hearing (audi et alteram partem), transparency, fair competition and equality (since they themselves had been treated unequally by comparison with their ‘European colleagues’).
18. The contracting authority rebutted the assertion that Article 57 of Directive 2014/24 can be regarded as being directly effective; in particular, it rejected the notion that paragraph 6 is unconditional, clear and precise. As regards the remedial measures, it submitted that it is for the Member States to define the conditions governing the implementation of that provision.
19. In the alternative, it went on to say that the contested decision does not infringe the regime for the adoption by economic operators, on their own initiative, of the self-cleaning measures provided for in Directive 2014/24. (12)
20. The referring court is uncertain about how to interpret Article 57(4)(c) and (g), in conjunction with paragraphs 6 and 7 of that article, of Directive 2014/24. In particular, it wishes to ascertain whether those provisions:
– Allow a tenderer to be excluded without being given the opportunity to present evidence of reliability, in the case where, according to the contracting authority, that tenderer has committed an act of grave professional misconduct and has not indicated on its own initiative the corrective measures it has taken;
– Are directly effective, in the event that they preclude a requirement that the tenderer provide evidence on its own initiative.
21. It was in those circumstances that the Raad van State (Council of State) referred the following questions to the Court of Justice for a preliminary ruling:
‘Should the provisions of Article 57(4)(c) and (g), in conjunction with paragraphs 6 and 7 of that article, 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 be interpreted as precluding an application whereby the economic operator is required to provide evidence on its own initiative of the measures that the economic operator has taken to demonstrate its reliability?
If so, do the provisions of Article 57(c) and (g), in conjunction with paragraphs 6 and 7 of that article, of [Directive 2014/24] therefore have direct effect?’
III. Procedure before the Court of Justice
22. The reference for a preliminary ruling was received at the Court on 17 May 2019.
23. Written observations have been lodged by RTS-Norré, the Governments of Austria, Belgium, Hungary and Estonia, and the Commission.
IV. Assessment
A. Preliminary clarifications
24. In order to answer the two questions referred for a preliminary ruling, it is necessary first and foremost to clarify which directive is applicable in this case.
25. It follows from the documents before the Court that the applicable legislation is not Directive 2014/24 (on which the reference is based) but the directive previously in force (Directive 2004/18), to which the contract notices referred.
26. That call for tenders for that contract was conducted in two stages:
– The ‘Prior Information Notice’ was published on 17 October 2015 (13) and cited Directive 2004/18 as the legal basis for the procedure.
– The ‘Contract Notice’ was published on 13 May 2016 (14) and this too states that Directive 2004/18 is applicable, while at the same time drawing the attention of parties to the grounds for exclusion set out in the Royal Decree of 15 July 2011, which transposed Directive 2004/18.
27. The time limit for transposing Directive 2014/24 expired, in accordance with Article 90 thereof, on 18 April 2016, on which date Directive 2004/18 was repealed.
28. According to the Court’s settled case-law, ‘the applicable directive in the field of public procurement is, as a rule, the one in force when the contracting authority [chooses which type of procedure it intends to pursue]. Conversely, a directive is not applicable if the period prescribed for its transposition expired after that point in time’. (15)
29. As the [date of publication of the] contract notice in this case was ‘necessarily after the time when the contracting authority selected the type of procedure which it intended to pursue and determine[d] conclusively whether or not there was an obligation to conduct a prior call for competition for the award of the public contract in question’, (16) which it did prior to 18 April 2016, Directive 2004/18 was applicable ratione temporis.
30. It is therefore clear both from the Court’s case-law and, specifically, from the prior information notice and the contract notice that the public procurement procedure was subject in this case to the provisions of Directive 2004/18. The corollary of the foregoing is that the questions referred for a preliminary ruling are concerned with the interpretation of provisions of EU law (Directive 2014/24) which are not relevant to the resolution of the dispute. (17)
31. The considerations I shall set out below are therefore presented in the alternative, in the event only that the Raad van State (Council of State) takes the view, for reasons inherent in its domestic law, that it must nonetheless apply Directive 2014/24.
B. First question
1. Criteria for textual and contextual interpretation
(a) Wording of Article 57(6) and (7) of Directive 2014/24
32. Directive 2004/18 did not make it possible for an economic operator caught by a ground for exclusion to demonstrate that it had adopted self-cleaning measures. Article 51 thereof nonetheless allowed the contracting authority to invite undertakings to submit documents on their personal situation. (18)
33. Directive 2014/24, on the other hand, does devote a provision (Article 57(6)) to such measures, (19) but this contains only certain information concerning, for example, the purpose of the measures (20) or the need to give reasons for a negative evaluation of them. (21) Otherwise, reference is made to the implementing conditions to be specified by the Member States.
34. Article 57(7) thus provides that, ‘by law, regulation or administrative provision and having regard to Union law, Member States shall specify the implementing conditions for this Article’.
35. The freedom enjoyed by the Member States in this field manifests itself on two levels:
– At the general level, inasmuch as they have some discretion in ‘determining the implementing conditions of the optional grounds for exclusion laid down in Article 57(4) of Directive 2014/24’. (22)
– At the specific level, in relation to the required timing and form for submitting evidence of reform. As regards such evidence, recital 102 of Directive 2014/24 states that ‘it should be left to Member States to determine the exact procedural and substantive conditions applicable in such cases’.
36. There is, therefore, nothing to stop a Member State from requiring the economic operator concerned to take the initiative in this regard. Recital 102 of the directive specifically refers to requests by economic operators that the measures they have adopted be examined. (23)
37. As I have already stated elsewhere, (24) the intention behind Article 57(6) is that the contracting authority ‘should evaluate the evidence presented by the operator claiming to have reformed itself’. The task of the contracting authority ‘in the evaluation of that evidence is … passive, while the task that falls to the economic operator is active …’.
38. In short, the wording of Article 57(6) and (7) of Directive 2014/24 does not preclude a Member State from providing that an economic operator which wishes to participate in a public procurement procedure, despite having been caught by grounds for exclusion, must, in order to demonstrate its reliability, provide, motu proprio, evidence of the measures which it has taken.
(b) Context of Article 57(6) of Directive 2014/24
39. A schematic or contextual interpretation of Article 57(6) of Directive 2014/24 leads to the same result.
40. First, in accordance with Article 56(3) of that directive, contracting authorities may request economic operators to submit, supplement, clarify or complete the relevant information or documentation (be it on the tender or on the candidate) within an appropriate time limit.
41. The provision so worded does not lay down a duty, that is to say a positive obligation, to request the information referred to in paragraph 1(b) of that article. In fact, that article itself allows the national transposing legislation to provide otherwise.
42. Secondly, Article 59 of Directive 2014/24 requires the economic operator itself to certify, by means of the European Single Procurement Document (ESPD), that it is not in one of the exclusion situations.
43. The ESPD is thus a formal declaration by the economic operator in which the latter must state that it is not covered by the relevant ground for exclusion or, if it is, that it has corrected its conduct in order to recover its lost credibility.
44. The ESPD, the rules governing which are set out in Implementing Regulation 2016/7:
– Puts the economic operator signing it in a position whereby it must itself identify whether it is caught by any grounds for exclusion, be these the compulsory ones or any others provided for in national legislation or specified in the contract notice or the tender specifications;
– Compels the operator, in that event, to state which self-cleaning measures it has taken by completing the sections provided for that purpose in the ‘standard form’. (25)
45. Use of the ESPD does not exempt the tenderer from having to provide subsequent evidence, this being one of the undertakings it has to give. Article 59(1) of Directive 2014/24 states that the ESPD ‘shall … contain a formal statement to the effect that the economic operator will be able, upon request and without delay, to provide those supporting documents’.
46. Article 59(4) of Directive 2014/24 therefore authorises the contracting authority to ask tenderers and candidates at any moment during the procedure to submit all or part of the supporting documents (mentioned or referred to in the ESPD) where this is necessary to ensure the proper conduct of the procedure.
47. In accordance with the same provision, that right becomes an obligation in the case of a tenderer to which the contracting authority has decided to award the contract: the contracting authority must then require it to submit up-to-date supporting documents (in accordance with Article 60 and, where appropriate, Article 62).
48. The inference I draw from all of the foregoing is that, if analysed schematically and in context, the provisions of Directive 2014/24 and Implementing Regulation 2016/7 indicate a clear preference as regards the proper timing and form for a declaration by the economic operator that it has taken reform measures, which is to say that, whether it does so by using the ESPD or by some other means, it must always make that declaration when submitting its tender.
49. It follows from that rule that a requirement by a national legislature or a national contracting authority that economic operators must claim to have taken self-cleaning measures (and, in that event, provide (26) the corresponding supporting documents) at the outset, is consistent with Directive 2014/24.
(c) Article 69, in particular
50. RTS-Norré proposes that Article 57(6) of Directive 2014/24 be interpreted by analogy with the rules governing abnormally low tenders (Article 69). The referring court also refers to that interpretative criterion in its order. (27)
51. I cannot endorse that proposal, since Article 69 of Directive 2014/24 deals with tenders which, in other provisions of the directive, are classified as ‘irregular’ (28) but may be admissible. That provision is concerned not with the economic operator’s reliability but with the material viability of its tender.
52. Analogies are not to be used where, as is the case here, in my opinion, the applicable provision contains enough information on its own to enable it to be interpreted without the need for recourse to another (supposedly) analogous provision. This is particularly true where the latter provision serves a different purpose: Article 69 of Directive 2014/24 is intended to protect candidates from arbitrary decisions by the contracting authority in a context very different from that of Article 57(6).
2. Objective of Article 57(6) of Directive 2014/24
53. The rule allowing economic operators to declare and demonstrate their reliability despite the existence of grounds for exclusion appears at first sight to be favourable primarily to them. It is logical, then, that it should fall to the person with an interest in participating in the procurement procedure to declare and prove that self-cleaning measures have been taken.
54. There is, in addition, another side to that rule which applies to the contracting authority. In accordance with Article 56(1)(b) of Directive 2014/24, the contracting authority must award the contract after verifying that the tender was submitted by a suitable tenderer (that is to say, not one excluded under Article 57).
55. It is for the contracting authority to verify whether there are any grounds for exclusion (29) and, if there are, whether the unreliable economic operator has nonetheless claimed to be worthy of trust on account of the measures it has taken. (30)
56. In performing that task, the contracting authority must rely in the first place on the data provided to it by tenderers. Article 57(4)(h) of Directive 2014/24 refers to the scenario in which the operator has withdrawn the information required to verify the absence of grounds for exclusion or is not able to submit the supporting documents required pursuant to Article 59. Both of those circumstances are sufficient to warrant the operator’s rejection from the procurement procedure. (31)
57. It might be excessive to require those participating in a procurement procedure to include in their tender, motu proprio, documentary evidence, in the form of the relevant certificates, of compliance with all of the conditions listed in Article 59(1) of Directive 2014/24. This would also be unnecessary from the point of view of ensuring that the procedure is conducted properly, and inconsistent with the introduction of the ESPD into EU public procurement legislation.
58. By contrast, it does not seem to me to be excessive to require that the tenderer’s tender be accompanied by a declaration and a description of the self-cleaning measures it has taken if it wishes to rely on those measures. That requirement is in the nature of a procedural burden. (32)
59. The contracting authority needs, as I have said, to be acquainted with those measures in order to be able to assess them and satisfy itself as to the reliability of a technically unreliable successful tenderer. This does not mean, however, that, in the absence of any such declaration from the tenderer, the contracting authority must ascertain of its own motion whether or not the tenderer has taken those measures.
60. The Court states in the judgment in Vossloh that:
– the economic operator ‘must provide the contracting authority with evidence demonstrating that [the reform measures] are sufficient for the purpose of its admission to the procurement procedure’;
– and that, if it ‘wishe[es] to establish its reliability despite the existence of a relevant ground for exclusion[, it] must collaborate effectively with the authorities to which those respective duties have been entrusted, regardless of whether this is the contracting authority or the investigating authority’. (33)
61. The same judgment nonetheless qualifies the duty to cooperate, which is limited ‘to the measures which are strictly necessary for the effective pursuit of the objective of the examination of the reliability of the economic operator, mentioned in Article 57(6) of Directive 2014/24’. (34)
62. I shall deal with the requirement of proportionality directly, after looking at the requirements that flow from the principles of transparency and equality.
3. Limits on the rule requiring economic operators to provide evidence on their own initiative
63. Article 57(7) stipulates that the laws, regulations and administrative provisions which the Member States introduce under it must comply with EU law. Part of that duty is to observe the principles of EU law governing public procurement. The call for proportionality is also made expressly in paragraph 6 of that article, in the context of the evaluation of self-cleaning measures.
(a) Transparency and equality
64. The principle of transparency, which is expressed in the obligation to set out clearly the conditions governing the suitability of tenderers, is so closely linked to the principle that they be treated equally that, in the view of the Court, one is the corollary of the other. (35)
65. All tenderers must therefore be in a position whereby they are equally acquainted with the conditions of the call for tenders. Hence the need for the grounds for exclusion, in particular the optional ones, to be set out clearly, since the uniform regime and mode of implementation applicable to them are defined not by EU law but by the rules of each Member State. (36)
66. Where a ground for exclusion is specified in the contract notice, the principles of transparency and equality do not preclude a national provision from requiring an economic operator wishing to counter that ground to include in its tender (that is to say, on its own initiative) evidence of the self-cleaning measures it has taken.
67. This will enable all candidates to identify, under the same conditions, whether, because they are caught by the ground for exclusion specified, they must from the outset declare that they have recovered their credibility to the contracting authority that is to select one of them.
68. According to the Court, tenderers cannot be required to disclose on their own initiative circumstances internal to them where ‘neither applicable national legislation nor the call for tenders or the tender specifications’ provide for such an obligation. In those circumstances, that obligation would not constitute a clearly defined condition and the principles of transparency and equal treatment would be infringed. (37)
69. By converse inference, the duty to disclose the aforementioned circumstances will be lawful if it is provided for ‘in [the] applicable national legislation[, …] the call for tenders or the tender specifications’.
70. That case-law does not therefore preclude a model for the relationship between the contracting authority and the economic operator whereby the latter is generally made to bear the burden of declaring and, in that event, providing evidence of the reform measures it has taken, if it wishes to rely on those measures in order to overcome the ground for exclusion set out in the contract notice.
71. A ‘reasonably informed [tenderer] exercising ordinary care’ (38) might, hypothetically, be unaware of substantive requirements applicable to the tender which have not been published. By contrast, once the tenderer has been alerted to the specific grounds for exclusion in the contract notice, the fact that that operator has to declare (and, in that event, prove) that, despite being caught by one of those grounds, it has remedied its lack of credibility, does not infringe the principles of transparency and disclosure.
72. That same operator cannot be unaware of the fact that, even if the contract notice does not make explicit reference to cleaning measures, Directive 2014/24 enables it to avail itself of them.
73. All of the foregoing has been particularly true since the introduction of the ESPD, which, as I have said, includes specific sections for declaring (and describing) reform measures. I would reiterate that use of the ESPD is practically compulsory in almost all of the procedures covered by Directive 2014/24. (39)
(b) Proportionality
74. According to recital 1 of Directive 2014/24, procedures for the award of public contracts are governed by the principle of proportionality. Recital 101 reiterates this with reference to optional grounds for exclusion in particular.
75. Article 57(6) includes an express reference to proportionality in the evaluation of any reform measures which economic operators claim to have taken.
76. It is logical, therefore, that the Court should have held that ‘… the rules intended to lay down the implementing conditions of Article 57 of that directive … must not go beyond what is necessary to achieve the objectives of that directive …’. (40)
77. The principle of proportionality has a material role to play, therefore, where the contracting authority has to evaluate the adequacy of self-cleaning measures and its own grounds for exclusion, while ensuring, in connection with the latter, that minor one-off irregularities do not have an exclusionary effect, except in exceptional circumstances. (41)
78. Could the contracting authority be asked to apply that same principle to the requirement that a tenderer declare in its tender that, despite having been caught by an optional ground for exclusion, it has subsequently rectified its behaviour and thereby recovered its credibility?
79. In normal circumstances, the contracting authority will have to confine itself to verifying whether the tenderer has complied with that requirement. A decision whereby it rejects the application of an economic operator which, in breach of its duty, has omitted to mention in its tender that it is caught by a ground for exclusion cannot be described as disproportionate. This will be the case, for example where the tenderer fails to disclose the fact that it has previously committed an act of grave professional misconduct.
80. In such a situation, the trigger for exclusion will be not so much the failure to declare as the very existence of the ground for exclusion (grave professional misconduct, for example) the rectification of which, in the form of a suitable self-cleaning measure, has not been disclosed by the economic operator.
81. There will, conversely, be situations in which there is greater scope for flexibility, in accordance with the criteria which the Court laid down in the judgment in Pizzo in connection with tenderers established in other Member States, ‘inasmuch as their level of knowledge of national law and the interpretation thereof and of the practice of the national authorities cannot be compared to that of national tenderers’. (42)
82. In those situations, ‘the principles of equal treatment and of proportionality must be interpreted as not precluding an economic operator from being allowed to regularise its position and comply with that obligation within a period of time set by the contracting authority’. (43)
83. In the judgment of 14 December 2016, Conexxion Taxi Services, the Court returned to that idea that an economic operator established in another Member State is less familiar with the terms and conditions of application of the relevant national legislation because it is foreign. (44)
84. In my view, that criterion would also apply where the ground for exclusion counting against the economic operator is not readily apparent from the documents relating to the procedure. It would be consistent with the principles of equality and proportionality, in those circumstances, for the economic operator to be given the opportunity to make good its initial failure to refer to that ground (and to the subsequent self-cleaning measures it has taken).
(c) Right of defence
85. In the order for reference, the Raad van State (Council of State) suggests that the fact that tenderers have to list, motu proprio, the acts of grave misconduct they have committed and the reform measures they have taken since might be described as ‘self-accusation’. (45)
86. There is nothing to compel an economic operator to participate in a public procurement procedure. If it does, however, it must comply with the rules of that procedure. Under Directive 2014/24, the relationship between tenderers and the contracting authority must be informed by good faith, meaning that the former, precisely because of the reliability required of them, cannot conceal information concerning the grounds for exclusion by which they are caught.
87. The tenderer must thus provide the information required to verify the existence or non-existence of grounds for exclusion, and is not permitted to withhold (the term used in Article 57(4)(h)) of Directive 2014/24) or misrepresent that information.
88. Requiring someone voluntarily participating in a public procurement procedure, on pain of exclusion, to disclose the pre-existing acts of grave misconduct they have committed (and any subsequent self-cleaning measures they may have taken) is not the same as disregarding the right not to plead guilty or incriminate oneself that applies in other areas of the legal system.
89. What is more, the Court has already held that the contracting authority is authorised to ask a tenderer to provide documentary evidence of a reform measure, even if providing it may bring unfavourable consequences to bear on the tenderer. (46)
90. The fact that, because the concept of ‘grave professional misconduct which renders its integrity questionable’ is so broad, an economic operator may be unable to determine with certainty whether one of its behaviours in the past is capable of being deemed to be such, is a different matter. In this regard, the referring court is right to note that, given the degree of discretion enjoyed by the contracting authority in assessing such conduct (recital 101 of Directive 2014/24), it will not always be easy to identify whether that ground for exclusion is satisfied.
91. In such a situation, where the tenderer concerned is unable to foresee whether its behaviour will be classified as an act of grave misconduct, the tenderer cannot be expected to mention that behaviour in its tender or in the ESPD. In those circumstances, it will be for the contracting authority, which is ultimately responsible for ‘demonstrat[ing] by appropriate means that the economic operator is guilty of grave professional misconduct’, to give the tenderer the opportunity to declare whatever it considers to be appropriate in relation to that misconduct.
92. I have stated that, in accordance with the principle of transparency, grounds for exclusion must be set out in such a way as to enable the economic operator to identify whether it is caught by them and, if so, to claim to have remedied them.
93. In that connection, I would recall that the exclusion authorised by Article 57(4) of Directive 2014/24 may be based both on deficiencies in the performance of previous contracts (point (g)) and on the commission of acts of grave professional misconduct (point (c)). Those two grounds were materially present in this case, according to the assessment of the contracting authority, and the first question referred for a preliminary ruling makes specific reference to both of them. (47)
94. Thus, the contract notice that gave rise to the present dispute, which was issued under Directive 2004/18, included as a ground for exclusion the commission of acts of grave professional misconduct, also provided for in the Royal Decree of 15 July 2011. It was interpreted in this way by the contracting authority, which relied on that ground in order to exclude the applicant undertakings from the procurement procedure.
95. In short, it is my view that Article 57(6) of Directive 2014/24 does not preclude a position whereby, in the case where the ground for exclusion is clearly set out in the contract notice, the economic operator must, on its own initiative, declare (and, in that event, provide evidence of) the self-cleaning measures it has taken.
C. Second question referred
96. In the event that the answer to the first question is in the affirmative, the referring court wishes to ascertain whether Article 57(6) of Directive 2014/24 could be relied on directly by an economic operator as against a contracting authority. (48)
97. If my proposed answer to the previous question were accepted, there would be no need to answer this one. The submissions that follow are therefore by way of a further alternative (I have already explained why Directive 2014/24 is not applicable in this case). (49)
98. In my view, Article 57(6) of Directive 2014/24 could, if it were applicable, be regarded as being directly effective for the purposes of the claim on which the Raad van State (Council of State) must adjudicate. (50)
99. That article confers on tenderers a right (to rely on self-cleaning measures before the contracting authority) which they may assert before the national courts and which the latter are bound to protect.
100. The differences of opinion between those who have intervened in the preliminary ruling proceedings are confined to whether that provision is unconditional and sufficiently precise, as required by case-law. (51)
101. As regards unconditionality, the right established in Article 57(6) of Directive 2014/24 does not depend on the Member States and is not contingent, from the point of view of its substance, upon whatever they may prescribe.
102. As regards precision, that provision itself provides indications of what, as a minimum, must be proved and, therefore, evaluated. (52) It also indicates the criteria (gravity and particular circumstances) against which that evaluation must be carried out (53) and the consequences that follow from a positive and a negative evaluation. (54) In addition, it makes clear when there will be no right to present remedial measures. (55) In short, it lays down the basic elements of the scheme and content of that right.
103. It is true that other elements, whether substantive or procedural, remain in the hands of the Member States, in accordance with the general rule laid down in Article 57 of Directive 2014/24. This is the case, for example, with the maximum period of exclusion and the timing and form of demonstrating reform.
104. As regards how and when the tenderer must declare and, in that event, provide evidence of the reform measures it has taken, this is left to the discretion of the Member States. Neither is the choice between ex officio assessment and assessment on the initiative of the operator concerned an essential condition of the right which Article 57(6) of Directive 2104/24 confers on tenderers.
105. The absence of any national provision (in the form of laws, regulations or administrative measures) on the detailed rules of form and timing cannot, however, operate to the detriment of tenderers to such an extent as to eliminate their right to seek the benefit of self-cleaning measures before a national court.
V. Conclusion
106. In the light of all the foregoing, I suggest that the Court of Justice reply to the Raad van State (Council of State, Belgium) as follows:
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 is not applicable, ratione temporis, to the facts of the dispute in the main proceedings as they are set out in the request for a preliminary ruling.
In the alternative:
– Article 57(4)(c) and (g), in conjunction with paragraphs 6 and 7 of that article, of Directive 2014/24 do not preclude an economic operator from having to declare and, in that event, prove, on its own initiative, that the self-cleaning measures it has taken are sufficient to demonstrate its reliability, despite the existence of a ground for exclusion by which it has been caught.
– Economic operators which are in one of the situations referred to in Article 57(1) and (4) of Directive 2014/24 may rely directly, before a national court, on the right conferred on them by paragraph 6 of that article.