Provisional text
OPINION OF ADVOCATE GENERAL
COLLINS
delivered on 7 March 2024(1)
Case C‑652/22
Kolin Inşaat Turizm Sanayi ve Ticaret A.Ș.
v
Državna komisija za kontrolu postupaka javne nabave,
joined parties:
HŽ Infrastruktura d.o.o.,
Strabag AG,
Strabag d.o.o.,
Strabag Rail a.s.
(Request for a preliminary ruling from the Visoki upravni sud Republike Hrvatske (Administrative Court of Appeal, Croatia))
(Reference for a preliminary ruling – Public procurement in the water, energy, transport and postal service sectors – Directive 2014/25/EU – Article 43 – Access of economic operators established in a third country which has not concluded an international agreement with the European Union on public procurement – Submission of bids – Possibility for a tenderer to provide additional evidence concerning its technical and professional qualifications after expiry of the deadline for submission of bids – Principle of equal treatment)
I. Introduction
1. This reference for a preliminary ruling by the Visoki upravni sud Republike Hrvatske (Administrative Court of Appeal, Croatia) affords the Court of Justice an opportunity to clarify the circumstances in which, after the expiry of the deadline for the submission of bids, contracting authorities may seek corrections or clarifications from tenderers. Before seizing that opportunity, however, the Court must first adjudicate upon two issues of law that go to the admissibility of the reference. Are economic operators established in third countries with which the European Union has not entered into an international agreement on public procurement (2) entitled to participate in procedures for the award of public contracts in the European Union? If so, can the Member States determine the conditions under which those operators may do so or is that exclusively a matter for the European Union to decide?
II. Legal framework
A. European Union law
1. Directive 2014/25/EU
2. Recital 27 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 (3) states:
‘Council Decision 94/800/EC, (4) approved in particular the World Trade Organisation Agreement on Government Procurement (the “GPA”). The aim of the GPA is to establish a multilateral framework of balanced rights and obligations relating to public contracts with a view to achieving the liberalisation and expansion of world trade. For contracts covered by Annexes 3, 4 and 5 and the General Notes to the European Union’s Appendix I to the GPA, as well as by other relevant international agreements by which the Union is bound, contracting entities should fulfil the obligations under those agreements by applying this Directive to economic operators of third countries that are signatories to the agreements.’
3. Article 36(1) of Directive 2014/25 headed ‘Principles of procurement’, provides:
‘Contracting entities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.
…’
4. Under Article 43 of Directive 2014/25, entitled ‘Conditions relating to the GPA and other international agreements’:
‘In so far as they are covered by Annexes 3, 4 and 5 and the General Notes to the European Union’s Appendix I to the GPA and by the other international agreements by which the Union is bound, contracting entities within the meaning of Article 4(1)(a) shall accord to the works, supplies, services and economic operators of the signatories to those agreements treatment no less favourable than the treatment accorded to the works, supplies, services and economic operators of the Union.’
5. Article 76(4) of Directive 2014/25 states:
‘Where information or documentation to be submitted by economic operators is or appears to be incomplete or erroneous, or where specific documents are missing, contracting entities may, unless otherwise provided for by the national law implementing this Directive, request the economic operators concerned to submit, supplement, clarify or complete the relevant information or documentation within an appropriate time limit, provided that such requests are made in full compliance with the principles of equal treatment and transparency.’
6. Article 86 of Directive 2014/25, under the heading ‘Relations with third countries as regards works, supplies and service contracts’, provides:
‘1. Member States shall inform the Commission of any general difficulties, in law or in fact, encountered and reported by their undertakings in securing the award of service contracts in third countries.
2. The Commission shall report to the Council by 18 April 2019, and periodically thereafter, on the opening up of service contracts in third countries and on progress in negotiations with these countries on this subject, particularly within the framework of the World Trade Organisation (WTO).
3. The Commission shall endeavour, by approaching the third country concerned, to remedy any situation whereby it finds, on the basis either of the reports referred to in paragraph 2 or of other information, that, in the context of the award of service contracts, a third country:
(a) does not grant Union undertakings effective access comparable to that granted by the Union to undertakings from that country;
(b) does not grant Union undertakings national treatment or the same competitive opportunities as are available to national undertakings; or
(c) grants undertakings from other third countries more favourable treatment than Union undertakings.
4. Member States shall inform the Commission of any difficulties, in law or in fact, encountered and reported by their undertakings and which are due to the non-observance of the international labour law provisions listed in Annex XIV when those undertakings have tried to secure the award of contracts in third countries.
5. In the circumstances referred to in paragraphs 3 and 4, the Commission may at any time propose that the Council adopt an implementing act to suspend or restrict, over a period to be laid down in that implementing act, the award of service contracts to:
(a) undertakings governed by the law of the third country in question;
(b) undertakings affiliated to the undertakings specified in point (a) and having their registered office in the Union but having no direct and effective link with the economy of a Member State;
(c) undertakings submitting tenders which have as their subject matter services originating in the third country in question.
The Council shall act, by qualified majority, as soon as possible.
The Commission may propose those measures on its own initiative or at the request of a Member State.
6. This Article shall be without prejudice to the commitments of the Union in relation to third countries ensuing from international agreements on public procurement, particularly within the framework of the WTO.’
2. Directive 2014/24/EU
7. Article 59 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, (5) headed ‘European Single Procurement Document’, states:
‘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;
(b) it meets the relevant selection criteria that have been set out pursuant to Article 58;
(c) where applicable, it fulfils the objective rules and criteria that have been set out pursuant to Article 65.
Where the economic operator relies on the capacities of other entities pursuant to Article 63, the ESPD shall also contain the information referred to in the first subparagraph of this paragraph in respect of such entities.
The ESPD shall consist of a formal statement by the economic operator that the relevant ground for exclusion does not apply and/or that the relevant selection criterion is fulfilled and shall provide the relevant information as required by the contracting authority. The ESPD shall further identify the public authority or third party responsible for establishing the supporting documents and contain a formal statement to the effect that the economic operator will be able, upon request and without delay, to provide those supporting documents.
…
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.
Before awarding the contract, the contracting authority shall, except in respect of contracts based on framework agreements where such contracts are concluded in accordance with Article 33(3) or point (a) of Article 33(4), require the tenderer to which it has decided to award the contract to submit up-to-date supporting documents in accordance with Article 60 and, where appropriate, Article 62. The contracting authority may invite economic operators to supplement or clarify the certificates received pursuant to Articles 60 and 62.’
3. International law
8. On 12 September 1963, the Agreement establishing an Association between the European Economic Community and Turkey (‘the Association Agreement’) was entered into. (6) On 23 November 1970, the European Economic Community and Turkey signed an Additional Protocol (‘the Additional Protocol’). (7) Whilst these agreements do not provide for the participation of economic operators in public procurement procedures, under Article 41(1) of the Additional Protocol the Contracting Parties agree to refrain from introducing as between themselves any new restrictions on the freedom of establishment and the freedom to provide services.
9. On 22 December 1995, the EC-Turkey Association Council set up by the Association Agreement adopted Decision No 1/95 on implementing the final phase of the Customs Union. (8) Article 48 of Decision No 1/95 provides that, as soon as possible after the date of its entry into force, the Association Council will set a date for the initiation of negotiations aimed at the mutual opening of the Parties’ respective public procurement markets and thereafter review progress in that area annually.
10. On 11 April 2000, the Association Council adopted Decision No 2/2000 on the opening of negotiations aimed at the liberalisation of services and the mutual opening of procurement markets between the Community and Turkey. (9) These negotiations have not yet been concluded. (10) Unlike the European Union, Türkiye is not a party to the GPA.
B. Croatian law
11. Article 3(8) of the Zakon o javnoj nabavi (11) (Public Procurement Act) provides:
‘An economic operator means any natural or legal person, including a branch, or public entity or group of such persons or entities, including any temporary association thereof, which offers the execution of works or a work, the supply of goods or the provision of services on the market’.
12. Under Article 4(1) of the Public Procurement Act:
‘In the application of this Act, in relation to all economic operators, the contracting authority shall respect the principles of free movement of goods, freedom of establishment and freedom to provide services and the principles deriving therefrom, such as the principles of competition, equal treatment, non-discrimination, mutual recognition, proportionality and transparency.’
13. Under Article 84 of the Public Procurement Act:
‘In public procurement procedures, the contracting authority shall grant economic operators of States signatories to the Agreement on Government Procurement (GPA) or other international agreements by which the European Union is bound treatment no less favourable than the treatment granted to the economic operators of Member States.’
14. Article 263(2) of the Public Procurement Act provides that contracting authorities may invite economic operators to complete or to explain documents that they receive from those economic operators. Pursuant to Article 293 thereof:
‘(1) Where the information or documents to be submitted by economic operators are or appear to be incomplete or incorrect, or where certain documents are missing, the contracting authority may request the economic operators concerned, in compliance with the principles of equal treatment and transparency, to supplement, clarify, specify or submit the necessary information or documents within an appropriate period of at least five days.
(2) Acts taken pursuant to paragraph 1 of this Article shall not lead to negotiations concerning the contract award criteria or the subject matter of the contract envisaged.’
III. The dispute in the main proceedings, the request for a preliminary ruling and the procedure before the Court
15. On 7 September 2020, HŽ Infrastruktura d.o.o. (‘HŽ Infrastruktura’), the contracting entity, launched a contract award procedure with a view to an upgrade of the railway infrastructure between two towns in Croatia. The call for tenders required tenderers to have a minimum level of technical and professional ability. In order to meet that selection criterion, tenderers were required to submit a list of the works that they had completed during the previous decade, together with a detailed description thereof.
16. HŽ Infrastruktura concluded that 6 out of the 15 tenders submitted fulfilled the selection criteria. Kolin Inşaat Turizm Sanayi ve Ticaret A.Ş. (‘Kolin’), a company established in Türkiye, submitted one of the tenders selected. On 25 January 2022, HŽ Infrastruktura awarded the public contract to Strabag AG (‘the initial award decision’).
17. Following a complaint by Kolin, on 10 March 2022, the Državna komisija za kontrolu postupaka javne nabave (State Commission for the Supervision of Public Procurement Procedures, Croatia) set aside the initial award decision. It considered that HŽ Infrastruktura had failed to substantiate its finding that Strabag had satisfied the technical and professional ability requirement. The only works mentioned in Strabag’s tender, namely those that it had carried out on the Pragersko-Hodoš railway line (Slovenia), did not satisfy the conditions of the call for tenders.
18. On 6 April 2022, HŽ Infrastruktura requested Strabag to provide it with an amended list of works, together with the relevant certificates of satisfactory execution. Strabag provided such a certificate in respect of the works carried out on the Pragersko-Hodoš railway line. It also took the opportunity to refer to, and to provide certificates in respect of, works that it had carried out on the Steyr valley motorway (Austria). After reviewing all of those documents, on 28 April 2022, HŽ Infrastruktura awarded the public contract to Strabag (‘the final award decision’).
19. Kolin lodged a complaint before the State Commission for the Supervision of Public Procurement Procedures against the final award decision, claiming that HŽ Infrastruktura could not invite Strabag to provide additional evidence of its technical and professional ability. On 15 June 2022, the State Commission for the Supervision of Public Procurement Procedures rejected that complaint on the ground that, although the reference to the works on the Pragersko-Hodoš railway line did not satisfy the technical and professional ability requirement of the call for tenders, there was nothing to prevent HŽ Infrastruktura from taking account of the works on the Steyr valley motorway in that context.
20. Kolin brought an action before the Visoki upravni sud Republike Hrvatske (Administrative Court of Appeal) for the annulment of the final award decision. That court is of the view that, following the setting aside of the initial award decision, HŽ Infrastruktura could, and was even required to, request additional evidence from Strabag about the works that it had carried out on the Pragersko-Hodoš railway line. As the State Commission for the Supervision of Public Procurement Procedures had found, correctly, those works did not show that Strabag satisfied the technical and professional ability requirement.
21. The Visoki upravni sud Republike Hrvatske (Administrative Court of Appeal) nonetheless doubts whether Strabag was entitled to refer to works on the Steyr valley motorway, since its original bid did not refer to those works. It wishes to know whether the Court’s judgment in Esaprojekt (12) could, by analogy, provide guidance on that issue. (13) It accordingly decided to stay the proceedings before it and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Does Article 76 [of Directive 2014/25], read in conjunction with Article 36 of that directive, permit the contracting entity to take into account documents that the tenderer provided for the first time after the time limit for the submission of tenders, where those documents were not included in the original tender and demonstrate circumstances that the tenderer did not indicate in the original tender?
(2) If the answer to the first question is in the affirmative, must Article 76 [of Directive 2014/25], read in conjunction with Article 36 of that directive, be interpreted as precluding the contracting authority from requesting, after the first contract award decision has been set aside and the case has been referred back to the contracting entity for a re-examination and re-evaluation of the tenders, additional documents from the contractor demonstrating compliance with the conditions for participation in the public procurement procedure that were not included in the original tender, such as a list of works carried out supplemented by a reference that was not included in the original list of works, that is to say, a reference that was not part of the original tender?
(3) Must Article 76 [of Directive 2014/25], read in conjunction with Article 36 of that directive, be interpreted as precluding a contractor from providing to the contracting entity, after the first contract award decision has been set aside and the case has been referred back to the contracting entity for a re-examination and re-evaluation of the tenders, documents demonstrating compliance with the conditions for participation in the public procurement procedure that were not included in the original tender, such as a list of works carried out supplemented by a reference that was not included in the original list of works, that is to say, a reference that was not part of the original tender?’
22. Kolin, Strabag, HŽ Infrastruktura, the State Commission for the Supervision of Public Procurement Procedures, the Czech, Estonian, French, Croatian and Polish Governments and the European Commission submitted written observations.
23. Although none of the parties’ written observations raised objections to the admissibility of the request for a preliminary ruling, according to settled case-law, the Court must examine, of its own motion, whether it has jurisdiction to respond to a request for a preliminary ruling or whether that request is admissible. (14) Having doubts as to whether economic operators from non-covered third-countries are entitled to participate in procedures for the award of public contracts governed by Directive 2014/25, the Court invited the parties referred to in Article 23(1) of the Statute of the Court of Justice of the European Union to respond in writing to two questions. Kolin, the State Commission for the Supervision of Public Procurement Procedure, the Estonian, French, Croatian, Austrian and Polish Governments and the Commission replied to those questions.
24. At the hearing of 21 November 2023, Kolin, HŽ Infrastruktura, the State Commission for the Supervision of Public Procurement Procedures, the Croatian, Czech, Danish and French Governments and the Commission presented oral argument and replied to the Court’s questions.
IV. Assessment
A. Admissibility of the request for a preliminary ruling
25. The admissibility of a request for a preliminary ruling depends on whether the Court’s answer to the questions referred is necessary to enable the referring court to resolve the dispute pending before it. It follows that answers to questions concerning the interpretation or the validity of provisions of EU law must, in some way, be capable of being applied to the outcome of that dispute. (15)
1. Participation of economic operators from non-covered third-countries in public procurement procedures in the European Union
– Observations submitted
26. The State Commission for the Supervision of Public Procurement Procedures and the Croatian Government seem to suggest that the application ratione personae of Directive 2014/25 includes all economic operators, irrespective of their country of establishment. The Austrian Government contends that, although, in principle, Directive 2014/25 does not apply to economic operators from non-covered third-countries, such operators may rely on that directive once a contracting authority has permitted their participation in a procedure for the award of a public contract award.
27. The Estonian, French and Polish Governments submit that economic operators from non-covered third-countries do not fall within the scope ratione personae of Directive 2014/25. That is clear, inter alia, from Article 43 of Directive 2014/25, which would serve no purpose were that not the case.
28. The Commission takes the view that, other than the economic operators to which Article 43 of Directive 2014/25 refers, economic operators from third-countries are not entitled to participate in procedures for the award of public contracts in the European Union and may, accordingly, be excluded therefrom. (16) Kolin and the Commission express the opinion that whilst no international agreement between the European Union and Türkiye governs procedures for the award of public contracts, economic operators established in that state may assert that entitlement by relying on the standstill clause on the introduction of new restrictions on the freedom to provide services contained in Article 41 of the Additional Protocol.
– Analysis
29. As far as third-country economic operators are concerned, Article 43 of Directive 2014/25 provides that that directive is to apply to economic operators established in a country party to the GPA or to another international agreement on the award of public contracts by which the European Union is bound. The text of that provision would thus appear to suggest that Directive 2014/25 does not apply to economic operators from non-covered third-countries.
30. The only other provision of Directive 2014/25 which applies to service providers from non-covered third-countries is Article 86, (17) reproduced in point 6 of the present Opinion. (18) Since that article refers to the participation of economic operators from non-covered third-countries in procedures for the award of public contracts in the European Union, it can be inferred therefrom that such participation is envisaged, at least in certain circumstances. (19) Read in conjunction with Article 43 thereof, Article 86 of Directive 2014/25 also suggests that the participation of economic operators from non-covered third-countries in procedures for the award of public contracts may be determined on a case-by-case basis. (20)
31. Point 10 in the present Opinion makes it clear that no provision of EU law, or of any international agreement to which the European Union and Türkiye are parties, governs the participation of economic operators established in Türkiye in public procurement procedures in the European Union. The Commission and Kolin nevertheless submit that such operators may rely on the standstill clause contained in Article 41(1) of the Additional Protocol in that context.
32. The Court has consistently held that Article 41(1) of the Additional Protocol is drafted in such clear, precise and unconditional terms that it has direct effect. (21) That provision is nevertheless incapable of conferring a right to provide services in the European Union on economic operators established in Türkiye. It consists in a prohibition on the introduction of any new measures which have the object, or the effect, of making those operators subject to any stricter conditions than those applicable at the time the Additional Protocol entered into force in a Member State. (22) A standstill clause, such as that contained in Article 41(1) of the Additional Protocol, is a quasi-procedural rule which stipulates, ratione temporis, the provisions of Member State law to which reference may be made in order to assess whether an undertaking established in Türkiye may exercise freedom of establishment in that Member State. It thus replaces any subsequent legal rule intended to introduce a new restriction. (23) When that issue arose at the hearing, the Commission was unable to identify any provision of law in force at the time of Croatia’s accession to the European Union that granted economic operators established in Türkiye access to public contract award procedures in that Member State.
33. It follows that economic operators from non-covered third-countries do not fall within the scope ratione personae of Directive 2014/25. (24) Whilst this is a matter for the referring court to verify, it would appear from the information before this Court that the applicant finds itself in such a position. Since the applicant is not entitled to participate in a procedure for the award of a public contract governed by Directive 2014/25, it cannot seek to rely on the provisions thereof before a Member State court. The referring court therefore cannot obtain a response to a reference for a preliminary ruling on the interpretation of those provisions, since any answer that the Court might give to its request would not have binding effect. That reason suffices to justify a finding that this reference for a preliminary ruling is inadmissible.
34. It might, nonetheless, be argued that, if the participation of economic operators from non-covered third-countries in public procurement procedures is a matter for Member States to regulate, those economic operators may rely on rights conferred by national law, even where the applicable national measures had been adopted in order to transpose provisions of EU law. In order to address that issue, I will consider the second question raised by the Court of its own motion.
2. The power to regulate the participation of economic operators from third-countries in procurement procedures in the European Union
– Observations submitted
35. Almost all of the parties to the procedure before the Court take the view that Member States may regulate the participation of economic operators from third-countries in procedures for the award of public contracts. Two principal arguments are relied on in support thereof. Some parties consider that such participation falls within the competences shared between the European Union and the Member States. (25) While other parties accept that the power to regulate such participation is exclusively a matter for the European Union, they contend that the Member States may nevertheless act in that field. (26)
36. Without stating expressly whether the matter falls within the exclusive competence of the European Union or that which it shares with the latter, the Croatian Government submits that EU law contains no general prohibition on the participation of economic operators from third-countries in procedures for the award of public contracts in the European Union. (27) It submits that the Commission’s Guidance on the participation of third-country bidders (28) confirms that proposition where it states that economic operators from third-countries may be excluded from these procedures, without requiring their exclusion. The State Commission for the Supervision of Public Procurement Procedures submits that the same principles apply to all economic operators participating in public procurement procedures in Croatia, irrespective of their country of establishment.
37. Kolin claims that the participation of economic operators from third-countries in procedures for the award of public contracts is a shared competence between the European Union and the Member States. As long as the former has not made any specific provision to regulate that participation, the Member States remain free to act. In a similar vein, the Polish Government considers that the application of Directive 2014/25 to economic operators from third countries does not fall within the scope of the common commercial policy, an exclusive European Union competence, but within the scope of the internal market, which is a shared competence. It follows that EU law does not prevent Member States from deciding that the principle of equal treatment applies to economic operators from third countries other than those to which Article 43 of Directive 2014/25 refers.
38. The Estonian Government submits that since the internal market provisions of the TFEU furnish the legal basis for Directive 2014/25, the Member States may establish rules to govern the participation of economic operators established in third countries in procedures for the award of public contracts. Member States may limit the participation of such economic operators in those procedures but they are not obliged to do so.
39. Whilst the Danish, French and Austrian Governments consider that the participation of economic operators from third countries in procedures for the award of public contracts falls within the European Union’s exclusive competence, they submit, for different reasons, that Member States may act in that field.
40. The Austrian Government accepts that regulation of the participation of economic operators from third-countries in such procedures falls within the scope of the common commercial policy. In the absence of any provisions in Directive 2014/25 to that effect, the Member States remain free to adopt measures for that purpose. The Danish Government submits that where the European Union does not exercise its exclusive competence to enter into international agreements on procedures for the award of public contracts, Member States may determine the arrangements whereby operators from third countries may participate in such procedures. The French Government also considers that measures to exclude economic operators from third-countries from procedures for the award of public contracts in the European Union come within the scope of the common commercial policy. Member States are therefore prevented from adopting general measures on the participation of economic operators from third-countries in such procedures but may adopt measures in individual cases.
41. The Commission argues that the arrangements whereby economic operators from third-countries may participate in procedures for the award of public contractsorganised within the European Union fall within the latter’s exclusive competence, such that it alone may adopt legally binding acts which afford equal treatment to economic operators from third-countries. (29)
– Analysis
42. Article 3(1)(e) TFEU provides that the common commercial policy is an exclusive European Union competence. Pursuant to Article 207(1) TFEU that policy is based on uniform principles and covers trade in goods and services. (30) Since the Treaties do not mention the award of public contracts, the question arises as to whether the procedures governing such awards fall within the internal market, a competence shared between the European Union and its Member States (31) or the common commercial policy. In that context, it is useful to recall that the internal market governs trade between Member States, whereas the common commercial policy relates to trade between Member States and third countries. (32) The award of public contracts may thus have both an internal and an external dimension.
43. Article 53 TFEU, on the freedom of establishment, Article 62 TFEU, on the freedom to provide services, and Article 114 TFEU on the adoption of measures having as their object the establishment and functioning of the internal market, provide the legal basis for Directive 2014/25. (33) It seems to follow that the intra-EU dimension of the rules governing the award of public contracts, including Directive 2014/25, falls within the scope of the internal market.
44. A measure that is intended to promote, facilitate or govern international trade and has direct and immediate effects upon trade falls within the ambit of the common commercial policy. (34) A measure that has only ancillary implications for international trade does not come within the scope of that policy. (35) Do arrangements to facilitate the participation of economic operators from third-countries in procedures for the award of public contracts within the European Union fall within the first, or the second, of these categories?
45. In Opinion 2/15 (EU-Singapore Free Trade Agreement), the Court examined the division of competences between the European Union and the Member States in the context of the conclusion of an envisaged trade agreement with the Republic of Singapore. That international agreement contained a chapter on public procurement that determined the arrangements whereby the economic operators of each party might participate in public procurement procedures organised by the other party’s authorities. Since that chapter had direct and immediate effects on trade in goods and services between the parties to that international agreement, it fell within the common commercial policy. (36) That ruling thus appears to support the idea that the external dimension of the award of public contracts falls within the European Union’s exclusive competence. It follows that the European Union must determine if, and if so, under what conditions, economic operators from third countries may participate in procedures for the award of public contracts in the European Union. (37) Article 207 TFEU indicates that that power includes the adoption of unilateral measures in accordance with the ordinary legislative procedure and, where necessary, the negotiation of international agreements. It is in that context that the European Union has announced its intention to create business opportunities for undertakings established therein by seeking to open up the public procurement markets of third countries on a reciprocal basis. (38)
46. Under Article 2(2) TFEU, when the Treaties confer on the European Union a competence that it shares with the Member States in a specific area, the European Union and the Member States may legislate and adopt legally binding acts in that area. The Member States may exercise their competence to the extent that the Union does not exercise its competence. The Member States may accordingly exercise their competence to the extent that the European Union (i) has not yet done so or (ii) ceases to do so. (39)
47. When the Treaties confer exclusive competence on the European Union in a specific area, only the Union may legislate and adopt legally binding acts in that field, (40) the Member States being permitted to do so only if the Union so empowers them or in order to implement Union acts. (41) Even where the European Union has not exercised its exclusive competence in a given area, a Member State cannot rely on the European Union’s failure to exercise its competence in order to justify it adopting a provision in that field. (42) Once an exclusive competence has been conferred on the European Union, the Member States’ loss of competence is immediate and that conferral takes effect irrespective of whether or not the European Union has exercised that competence. (43) Since the conferral of exclusive competence on the European Union deprives the Member States of any competence in the area in question, it follows that any action by the Member States is, a priori, in conflict with the Treaties. (44)
48. Since it is only by way of exception that Article 2(1) TFEU empowers Member States to act in an area that falls within the European Union’s exclusive competence, (45) and exceptions are usually interpreted and applied strictly, any authorisation afforded to a Member State must be specific, (46) limited in scope and temporary. (47)
49. The Court’s judgment in Commission v United Kingdom (48) examined circumstances in which a Member State adopted measures due to the European Economic Community’s failure to act in relation to the common fisheries policy. (49) The Court did not exclude that, due to the evolution of biological and technological circumstances, Member States might be required to amend conservation measures (50) and that, in those circumstances, Member States may act as trustees of the European Union’s common interests. (51) Before adopting such measures, however, the Member State concerned must seek, in good faith, the European Union’s approval and must not adopt measures to which the latter objects or on which it imposes conditions. (52) That judgment suggests that a Member State may, exceptionally, adopt measures in an area that falls within the European Union’s exclusive competence where the latter has not acted, provided that there is an objective need for those measures, the Member State has notified the European Union of its intentions and the latter raises no objections.
50. As regards the present case, by adopting Article 43 of Directive 2014/25, the European Union has exercised its competence in relation to economic operators established in a country party to the GPA or to another international agreement on the award of public contracts by which the European Union is bound. As explained in point 10 of the present Opinion, economic operators established in Türkiye do not come within that category. Although the European Union has not exercised its exclusive competence to establish whether economic operators from non-covered third-countries may participate in such procedures, Member States may not rely on that fact in order to regain competence to act in that area.
51. As the State Commission for the Supervision of Public Procurement Procedures and Kolin indicated, the Croatian authorities take the view that Article 3(8) of the Public Procurement Act, which appears to transpose the concept of ‘economic operator’ in Article 2(6) of Directive 2014/25 into Croatian law, is to be interpreted to the effect that procedures for the award of public contracts in Croatia are open to all economic operators, irrespective of the place of their establishment, under the same conditions as apply to economic operators from other Member States.
52. That approach gives rise to at least three difficulties. First, Member States are not permitted to adopt legislation in an area within the exclusive competence of the European Union, unless they seek to implement EU law or the European Union has empowered them to do so. Since the European Union does not appear to have exercised its exclusive competence to determine access by economic operators from non-covered third-countries to procedures for the award of public contracts, Member States wishing to take steps to that end may inform the competent EU institutions of their proposed course of action with a view to obtaining the requisite authorisation. Nothing in the Court’s file indicates that Croatia has taken such a step. Second, unilateral action by Member States could undermine the European Union’s bargaining position in the context of its efforts to open, on a reciprocal basis, markets for public contracts in third countries. Third, it could interfere with the uniform application of EU law, since in such circumstances the application of Directive 2014/25 ratione personae could vary from one Member State to another.
53. Although Directive 2014/25 does not apply to economic operators established in Türkiye, I will now consider whether the laws of the Member States may nevertheless apply to situations that fall outside the scope of that directive. In its judgment in Dzodzi, the Court examined a case where national law had extended the application of the EU internal market rules to purely internal situations in order to avoid reverse discrimination. (53) Although EU law does not apply to purely internal situations, (54) the Court held that it does not prevent Member States from doing so. In those circumstances, the Court answered the questions referred in order to ensure the uniform interpretation of EU law. (55)
54. Unlike the situation which led to that judgment, the case before the referring court is not purely internal and does not involve a competence shared between the European Union and the Member States. Since the questions referred in this case concern an exclusive competence of the European Union, Member States cannot unilaterally decide to extend the scope of the relevant EU rules. I therefore advise the Court that it is not possible to answer the referring court’s questions by relying upon the Dzodzi judgment.
55. Since all of the referring court’s questions relate to the interpretation of Directive 2014/25, which, for the reasons set out in detail in points 29 to 33 and 42 to 54 of the present Opinion, cannot apply in the context of the dispute before the referring court, I advise that the Court declare the request for a preliminary ruling inadmissible in its entirety.
56. Should the Court decide that the reference is admissible, I propose to examine each of the referring court’s questions.
B. Substance
1. The first and second questions
– The parties’ observations
57. Kolin, the Estonian Government and the Commission take the view that Articles 36 and 76 of Directive 2014/25 must be interpreted to the effect that, after the expiry of the deadline for the receipt of bids, the contracting authority cannot request documents or information relating to matters not contained in the original tender. Although the principle of equal treatment does not, in principle, preclude tenderers correcting or amplifying details of their bids, such information may not amend the substance of a tender. Any request for clarification must also be made to all tenderers that find themselves in similar circumstances. Kolin, the Estonian Government and the Commission submit that the facts of the present case do not satisfy those requirements.
58. The Estonian Government adds that, in its view, HŽ Infrastruktura infringed Article 59 of Directive 2014/24. Since that provision is limited to the clarification of information in the ESPD and to the provision of supporting documents, it does not provide for the submission of new information. (56) Since Strabag’s ESPD mentioned only the works on the Pragersko-Hodoš railway line in its bid, any request by HŽ Infrastruktura for clarification and supporting documents had to be limited to those works.
59. The other parties to the proceedings before the Court contend that, after the expiry of the deadline for submission of bids, a contracting authority may request a tenderer to produce documents that relate to circumstances not referred in the original tender.
60. The Croatian Government, supported by the State Commission for the Supervision of Public Procurement Procedures, the Czech, French and Polish Governments, contends that contracting authorities may invite tenderers to clarify or to complete information or documents, so long as that invitation does not amount to a substantial amendment of a bid. In that context, it is appropriate to distinguish between selection and award criteria. While tenderers cannot amend their bids with respect to the award criteria, since that would constitute a substantial amendment, they may supplement information or documents which concern the selection criteria. According to the State Commission for the Supervision of Public Procurement Procedures and the Czech Government, a comparison between Article 51 of Directive 2004/18, Article 56(3) of Directive 2014/24 and Article 76(4) of Directive 2014/25 (57) discloses that the latter two provisions were adopted to give contracting authorities greater latitude to request additional information or documents in order to facilitate the selection of the most economically advantageous tender.
61. The Croatian Government and the State Commission for the Supervision of Public Procurement Procedures further submit that the rules governing the ESPD empower the contracting authority, at any stage during the procedure, to request tenderers to submit supporting documents and to supplement or to clarify documents it had already received. The decisive element as to whether a contracting authority may receive such documents and take them into account is whether the supplementary information requested concerns facts that had taken place prior to the expiry of the deadline for submission of bids. Since Strabag referred to works it had completed before the expiry of the deadline for submission of bids, it was entitled to mention them, even for the first time, after the expiry of that deadline.
62. The State Commission for the Supervision of Public Procurement Procedures, supported by the Czech Government, also contends that, by virtue of the contracting authority having selected it, the successful tenderer is not in the same situation as the unsuccessful tenderers. It follows that an invitation to that tenderer to furnish additional information does not breach the principle of equal treatment.
63. The Croatian Government, supported by HŽ Infrastruktura, the State Commission for the Supervision of Public Procurement Procedures and the Czech and Polish Governments, further contends that the Esaprojekt judgment cannot apply by analogy. That judgment examined the issue as to whether, in view of reservations as regards its technical ability, a successful tenderer could submit a new document in order to rely on a contract carried out by another operator, that other operator having undertaken to make available to the successful tenderer the resources necessary to perform the public contract under award. Unlike the clarifications requested in the case before the referring court, which related to works that the tenderer had itself carried out, reliance on that contract had an impact on an essential element of the bid, namely the tenderer’s identity and its technical ability.
64. The State Commission for the Supervision of Public Procurement Procedures adds that, in the Manova judgment, the Court held that a tenderer could subsequently provide a document not included in its initial bid, namely its balance sheet, as long as that document had existed prior to the deadline for the submission of bids. (58)
– Analysis
65. By its first and second questions, which may be answered together, the referring court asks, in essence, whether Article 76 of Directive 2014/25, read in conjunction with the principle of equal treatment enshrined in Article 36 thereof, must be interpreted as allowing a contracting authority to request new documents from a tenderer relating to its technical and professional ability by reference to works not mentioned in the original tender, in circumstances where the initial award decision had been set aside and the matter referred back for re-evaluation.
66. At the outset, I observe that the text of Article 76(4) of Directive 2014/25, the applicable sectoral directive, is in identical terms to that of Article 56(3) of Directive 2014/24, the general directive. There appears to be no reason why those two provisions ought not to be interpreted in the same way. In so far as recital 6 of Directive 2014/25 states that it is appropriate to interpret the notion of procurement in that directive as closely as possible to that applied in Directive 2014/24, subject to the specificities of the sectoral directive, it supports that proposition. It has been held, moreover, that the case-law on the interpretation of Article 51 of Directive 2004/18 applies by analogy to Article 56(3) of Directive 2014/24. (59)
67. The requirement for a contracting authority to observe the principles of equal treatment of tenderers and of transparency is aimed at promoting healthy and effective competition between undertakings participating in procurement procedures and thus at ensuring the free movement of services. (60) The principles of equal treatment and of transparency preclude any negotiation between a contracting authority and a tenderer in the course of a procedure for the award of a public contract. Once a tender has been submitted, it cannot be amended, at the request of either the contracting authority or the tenderer. As a consequence, where a contracting authority considers that a tender is imprecise or that it fails to meet a technical requirement, it cannot ask the tenderer to clarify or to explain its bid. (61) To enable a contracting authority to require a tenderer to clarify or to explain a tender that it regards as imprecise or as not meeting relevant technical requirements or specifications risks giving the appearance that the contracting authority is negotiating with that tenderer on a confidential basis, thereby breaching the principle of equal treatment. (62)
68. The principle of equal treatment does not preclude the correction or amplification of the details of a tender where it is clear that such is required to correct obvious clerical errors. For that to be permitted, two conditions must be met. First, a request for clarification may not lead to such a substantial amendment of the tender that, in reality, it may be regarded as a new bid. (63) A request for clarification cannot compensate for the lack of a document or of information required by the call for tenders, (64) without which a tenderer is to be excluded. (65) Second, such a request must be made of all tenderers that find themselves in similar circumstances. (66)
69. The referring court’s first and second questions fall to be examined in the light of these principles.
70. The submission of new documents which relate to a tenderer’s technical and professional ability by way of reference to works not mentioned in the original tender does not amount to a correction, clarification or explanation. Rather it constitutes a significant amendment of that tender, without which that bid would be rejected. It appears from the documents in the Court’s file that the initial award decision was set aside precisely because the tenderer could not show, by reference to the information and documents in its original bid, that it had satisfied the technical and professional requirements of the call for tenders.
71. According to Article 59(1) of Directive 2014/24, the ESPD is a declaration by the tenderer that it meets, inter alia, the applicable selection criteria. That self-declaration constitutes preliminary evidence to that effect, thereby replacing the requirement to produce certificates issued by public authorities or third parties. (67) The ESPD is aimed at giving contracting authorities a precise and accurate picture of the circumstances of each economic operator that seeks to submit a tender. (68) The consequent reduction in the administrative burden imposed upon contracting authorities and economic operators must nevertheless be reconciled with the objective of promoting healthy and effective competition and the application of the principles of equal treatment and transparency. (69)
72. Part IV of Annex 2 of Commission Implementing Regulation (EU) 2016/7 of 5 January 2016 establishing the standard form for the European Single Procurement Document (70) is entitled ‘Selection criteria’. Under Section C, headed ‘Technical and professional ability’, a tenderer is both to list and to provide a number of details of the relevant works that it has performed. Whilst that provision thus permits a tenderer to provide appropriate certificates and supporting documents upon request, it does not allow it, after the expiry of the deadline for the submission of its bid, to amend the essential elements on the basis of which it has declared that it has fulfilled the applicable selection criteria, namely the performance of specific works.
73. As for the application of the principle of equal treatment in the instant case, the State Commission for the Supervision of Public Procurement Procedures and HŽ Infrastruktura stated at the hearing that, of the nine tenders rejected for failure to fulfil the selection criteria, four of them contained insufficient evidence of technical and professional ability, whilst allegedly having other deficiencies.
74. Without prejudice to the limitations on the possibility of making subsequent clarifications, the principle of equal treatment requires that the contracting authority send requests for clarification to all participants whose bids raise doubts as to whether they fulfil the selection criteria and that it not limit those requests to the tenderer to which it has chosen to award the contract. At the hearing, the State Commission for the Supervision of Public Procurement Procedures and HŽ Infrastruktura stated that, after reviewing the tenders and rejecting nine of them for failure to fulfil the selection criteria, HŽ Infrastruktura examined the six remaining tenders by reference to the award criteria. It is therefore not possible to exclude the possibility that, had the nine tenderers initially rejected for failure to fulfil the selection criteria been given an opportunity to explain their bids, one of those tenderers might have been deemed to have submitted the most economically advantageous tender. That is ultimately a matter for the referring court to verify.
75. As several parties have correctly observed, the facts in respect of which the Esaprojekt judgment was delivered differ from those before the referring court. From that judgment, it appears that, having taken the view that the tenderer’s experience did not meet the requirements of the call for tenders, the contracting authority requested clarification of that tender. The tenderer provided a document that relied on the experience of a subcontractor it had mentioned in the original tender. (71) The Court’s ruling suggests that, since it affected the tenderer’s identity and its capacity, the response to the request constituted a substantial amendment of the initial tender. (72) Such factual differences as may exist between the circumstances in which the Esaprojekt judgment was delivered and those which arise for consideration in the present case have no bearing upon the legal principles applicable, which are set out in points 67 and 68 of the present Opinion.
76. Several parties to the procedure before the Court argue that the Manova judgment supports the proposition that Article 76(4) of Directive 2014/25 empowers a contracting authority to request documents or information not contained in the original tender in circumstances similar to those in the case before the referring court. I respectfully suggest that that argument rests upon a misreading of that judgment. The Court certainly ruled that a contracting authority may request a limited or specific correction, or an amplification of details, of a tender, for instance by seeking a copy of a balance sheet that had been published prior to the deadline for the submission of bids. It qualified that finding by stating that such a request would be prohibited where the call for tenders required the presentation of that missing document or information on pain of exclusion from the award procedure. (73) In the present case, the referring court indicates that, in the absence of the reference to the works in the Steyr valley motorway, Strabag’s original tender would not have fulfilled the selection criteria and would have been rejected, thereby coming within the qualification the Court made in the Manova judgment.
77. In view of the foregoing, I propose that the Court answer the first and second questions to the effect that Article 76 of Directive 2014/25, read in conjunction with the principle of equal treatment enshrined in Article 36 thereof, must be interpreted as precluding a contracting authority from requesting new documents from a tenderer relating to its technical and professional ability by reference to works not mentioned in the original tender, in circumstances where the initial award decision had been set aside and the matter referred back for re-evaluation.
2. The third question
78. The referring court’s third question asks whether Article 76 of Directive 2014/25, read in conjunction with the principle of equal treatment enshrined in Article 36 of that directive, must be interpreted as allowing a tenderer to provide, of its own motion, new documents relating to its technical and professional ability by reference to works not mentioned in the original tender, where the initial award decision had been set aside and the matter referred back for re-evaluation.
79. Most of the observations before the Court do not address the third question separately. The French Government submits that while a contracting authority may invite tenderers to provide clarifications after the expiry of the deadline for the submission of bids, tenderers do not have a right to provide clarifications of their own motion. The Commission, in contrast, argues that Directive 2014/25 prevents any substantive amendment of a tender after the expiry of the deadline for the receipt of bids. It is thus irrelevant whether the contracting authority requested the clarifications or the tenderer provided them of its own motion.
80. In accordance with the settled case-law of the Court, in proceedings under Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling and the relevance of the questions it submits to the Court. Consequently, where the questions referred by national courts concern the interpretation of a provision of EU law, the Court is, in principle, bound to give a ruling. In the context of the procedure for cooperation between the Court of Justice and national courts that is established by Article 267 TFEU, questions concerning EU law enjoy a presumption of relevance. The Court may refuse to give a ruling on a question referred by a national court only where, for instance, the requirements concerning the content of a request for a preliminary ruling set out in Article 94 of the Rules of Procedure of the Court of Justice are not satisfied, or it is quite obvious that the interpretation of a provision of EU law bears no relation to the actual facts of the main action or to its purpose, or the problem is hypothetical. (74)
81. In the present case, it is clear from the documents in the Court’s file that Strabag provided the additional documents and information at the contracting authority’s request. It follows that the third question is based on a hypothesis and, for that reason, must be declared inadmissible. Were the Court not to share that view, for the reasons set out in points 67 to 76 of the present Opinion, I would suggest that it answer the third question to the effect that Article 76 of Directive 2014/25, read in conjunction with the principle of equal treatment enshrined in Article 36 of that directive, does not permit a tenderer to provide, of its own motion, new documents which relate to its technical and professional ability by reference to works not mentioned in the original tender, in circumstances where the initial award decision had been set aside and the case referred back for re-evaluation.
V. Conclusion
82. In the light of the foregoing, I propose that the Court rule that the request for a preliminary ruling by the Visoki upravni sud Republike Hrvatske (Administrative Court of Appeal, Croatia), made by decision of 10 October 2022, is inadmissible.