Connexxion Taxi Services BV v Staat der Nederlanden (Ministerie van Volksgezondheid, Welzijn en Sport) and Others.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2016:948
• Date: 14 December 2016
• Celex Number: 62015CJ0171
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-171/15

JUDGMENT OF THE COURT (Fourth Chamber)

14 December 2016 ( *1 )

‛Reference for a preliminary ruling — Public service contracts — Directive 2004/18/EC — Article 45(2) — Personal situation of the candidate or tenderer — Optional grounds of exclusion — Grave professional misconduct — National legislation providing for a case-by-case assessment in accordance with the principle of proportionality — Decisions of the contracting authorities — Directive 89/665/EEC — Judicial review’

In Case C‑171/15,

REQUEST for a preliminary ruling under Article 267 TFEU from the Hoge Raad der Nederlanden (Supreme Court, Netherlands), made by decision of 27 March 2015, received at the Court on 15 April 2015, in the proceedings

Connexxion Taxi Services BV

v

Staat der Nederlanden (Ministerie van Volksgezondheid, Welzijn en Sport),

Transvision BV,

Rotterdamse Mobiliteit Centrale RMC BV,

Zorgvervoercentrale Nederland BV,

THE COURT (Fourth Chamber),

composed of T. von Danwitz, President of the Chamber, E. Juhász (Rapporteur), C. Vajda, K. Jürimäe and C. Lycourgos, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 27 April 2016,

after considering the observations submitted on behalf of:

— Connexxion Taxi Services BV, by J. van Nouhuys, advocaat,

— Transvision BV, Rotterdamse Mobiliteit Centrale RMC BV and Zorgvervoercentrale Nederland BV, J.P. Heering and P. Heemskerk, advocaten,

— the Netherlands Government, by H.M. Stergiou, M.K. Bulterman, A.M. de Ree and J. Langer, acting as Agents,

— the Italian Government, by G. Palmieri, acting as Agent, S. Varone and F. Di Matteo, avvocati dello Stato,

— the European Commission, by A. Tokár and S. Noë, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 30 June 2016,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of the provisions of Article 45(2) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) and the general principles of equal treatment and proportionality and the extent of judicial review of the powers of contracting authorities.

2 The request has been made in proceedings between Connexxion Taxi Services BV (‘Connexxion’) and the Staat der Nederlanden — Ministerie van Volksgezondheid, Welzijn en Sport (Netherlands State — Ministry of Health, Welbeing and Sport, ‘the Ministry’) and the tender group constituted by Transvision BV, Rotterdamse Mobiliteit Centrale RMC BV and Zorgvervoercentrale Nederland BV (‘the Tender Group’) concerning the lawfulness of the Ministry’s decision to award a public services contract to the Tender Group.

Legal context

EU law

3 Recital 2 of Directive 2004/18 states: ‘The award of contracts concluded in the Member States on behalf of the State, regional or local authorities and other bodies governed by public law entities, is subject to the respect of the principles of the Treaty and in particular to the principle of freedom of movement of goods, the principle of freedom of establishment and the principle of freedom to provide services and to the principles deriving therefrom, such as the principle of equal treatment, the principle of non-discrimination, the principle of mutual recognition, the principle of proportionality and the principle of transparency. However, for public contracts above a certain value, it is advisable to draw up provisions of Community coordination of national procedures for the award of such contracts which are based on these principles so as to ensure the effects of them and to guarantee the opening-up of public procurement to competition. These coordinating provisions should therefore be interpreted in accordance with both the aforementioned rules and principles and other rules of the Treaty.’

4 Article 2 of that directive, entitled ‘Principles of awarding contracts’ provides: ‘Contracting authorities shall treat economic operators equally and non-discriminatorily and shall act in a transparent way.’

5 Under Title II, Section 2 of Chapter VII of that directive concerns ‘Criteria for qualitative selection’. It includes Article 45, entitled ‘Personal situation of the candidate or tenderer’. Article 45(1) lists the reasons for which a candidate or tenderer must be excluded from participating in a contract. Article 45(2) lists the reasons for which a candidate or tenderer may be excluded from participation in a contract and was worded as follows: ‘Any economic operator may be excluded from participation in a contract where that economic operator: … (d) has been guilty of grave professional misconduct proven by any means which the contracting authorities can demonstrate; … Member States shall specify, in accordance with their national law and having regard for Community law, the implementing conditions for this paragraph.’

6 Annex VII A to that directive, entitled ‘ Information which must be included in public contract notices’ refers, in point 17, to ’selection criteria regarding the personal situation of economic operators that may lead to their exclusion, and required information proving that they do not fall within the cases justifying exclusion …’.

7 Under the heading ‘Scope and availability of review procedures’, Article 1 of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33) as amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 (OJ 2007 L 335, p. 31) provides in paragraph 1(3) thereof: ‘Member States shall take the measures necessary to ensure that, as regards contracts falling within the scope of Directive 2004/18/EC, decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in Articles 2 to 2f of this Directive, on the ground that such decisions have infringed Community law in the field of public procurement or national rules transposing that law.’

8 Directive 2004/18 was replaced by Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18 (OJ 2014 L 94, p. 65). In accordance with Article 91 of Directive 2014/24, Directive 2004/18 was repealed with effect from 18 April 2016.

Netherlands law

9 Directive 2004/18 was transposed into Netherlands law by the Besluit houdende regels betreffende de procedures voor het gunnen van overheidspdrachten voor werken, lveringen en diensten (Decree relating to the rules on the award of public contracts) of 16 July 2005 (Stb. 2005, p. 408 ‘the Decree’).

10 Article 45(2)(d) of that directive was transposed into Netherlands law by Article 45(3)(d) of the Decree which states as follows: ‘The contracting authority may exclude from participation in a public contract any economic operator: … (d) which has been guilty of grave professional misconduct proven by any means which the contracting authorities can demonstrate. …’

11 The Explanatory Memorandum to the decree states, with regard to Article 45(3) thereof: ‘The assessment of whether exclusion should actually take place and for how long that exclusion should last should, having regard to the general principles of Directive 2004/18, always be proportionate and non-discriminatory. “Proportionate” means that the exclusion and its length must be proportional to the gravity of the misconduct. In the same way, the exclusion and its length must be proportionate to the size of the public contract. Setting a mandatory period in which an undertaking which acted unlawfully is excluded from the outset from all public procurement procedures by the State is not, therefore, consistent with the principle of proportionality. That also means that the assessment is made on an individual basis, because the contracting authority must always verify on a case-by-case basis for each public contract whether, in a specific case, a particular undertaking must be excluded (in accordance with the nature and size of the contract, the nature and extent of the fraud and the measures that the undertaking has adopted in the meantime).’

The dispute in the main proceedings and the questions referred for a preliminary ruling

12 On 10 July 2012, the Ministry launched a contract award procedure for the supply of ‘socio-recreational interregional transport services for persons with reduced mobility’. The service is intended to enable persons with reduced mobility to travel freely by giving them a transport budget each year expressed in taxi kilometres. The contract has a minimum duration of three years and nine months and is valued annually at approximately EUR 60000000.

13 The award procedure for that contract is described in detail, in a document called ‘Descriptive document’, the paragraph of which entitled ‘Grounds for Exclusion and Suitability Requirements’ states inter alia as follows in point 3.1: ‘A Tender to which a Ground for Exclusion applies shall be set aside and shall not be eligible for further (substantive) assessment.’

14 As far as concerns the grounds...