Opinion of Advocate General Campos Sánchez-Bordona delivered on 11 May 2023.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:398
• Date: 11 May 2023
• Celex Number: 62022CC0066
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 11 May 2023 (1)

Case C‑66/22

Infraestruturas de Portugal, S. A,

Futrifer Indústrias Ferroviárias, S. A

v

Toscca – Equipamentos em Madeira Ldª,

intervener:

Mota-Engil Railway Engineering, SA

(Request for a preliminary ruling from the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal))

(Reference for a preliminary ruling – Directive 2014/24/EU – Public procurement – Optional grounds for exclusion – Article 57(4)(d) – Exclusion of an economic operator from participation in a tendering procedure – Penalty for anticompetitive practices – Automatic exclusion based on a previous decision of a competition authority – Discretion of the contracting authority to assess the existence of the ground for exclusion – Article 57(6) – Suitability and reliability of the tenderer – Statement of reasons – Anticompetitive practices detected in the tendering procedure itself)

1. In this reference for a preliminary ruling, the Court is called upon to interpret Article 57(4)(d) of Directive 2014/24/EU, (2) under which a contracting authority may exclude an economic operator from participation in a procurement procedure where that operator has entered into agreements with other operators to distort competition.

2. The request for a preliminary ruling has been made in proceedings concerning the award of a contract to an undertaking which had previously been penalised for having colluded with other undertakings to engage in anticompetitive conduct (price and market-sharing agreements).

I. Legal framework

A. European Union law

1. Directive 2014/24

3. Article 56 (‘General principles’) provides:

‘1. 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 …’

4. 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;

(d) where the contracting authority has sufficiently plausible indications to conclude that the economic operator has entered into agreements with other economic operators aimed at distorting competition;

…

5. …

At any time during the procedure, contracting authorities may exclude or may be required by Member States to exclude an economic operator where it turns out that the economic operator is, in view of acts committed or omitted either before or during the procedure, in one of the situations referred to in paragraph 4.

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.

For this purpose, the economic operator shall prove that it has paid or undertaken to pay compensation in respect of any damage caused by the criminal offence or misconduct, 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.

The measures taken by the economic operators shall be evaluated taking into account the gravity and particular circumstances of the criminal offence or misconduct. Where the measures are considered to be insufficient, the economic operator shall receive a statement of the reasons for that decision.

An economic operator which has been excluded by final judgment from participating in procurement or concession award procedures shall not be entitled to make use of the possibility provided for under this paragraph during the period of exclusion resulting from that judgment in the Member States where the judgment is effective.

7. By law, regulation or administrative provision and having regard to Union law, Member States shall specify the implementing conditions for this Article. They shall, in particular, determine the maximum period of exclusion if no measures as specified in paragraph 6 are taken by the economic operator to demonstrate its reliability. Where the period of exclusion has not been set by final judgment, that period shall not exceed five years from the date of the conviction by final judgment in the cases referred to in paragraph 1 and three years from the date of the relevant event in the cases referred to in paragraph 4.’

2. Directive 2014/25/EU (3)

5. Under Article 80 (‘Use of exclusion grounds and selection criteria provided for under Directive 2014/24/EU’):

‘1. The objective rules and criteria for the exclusion and selection of economic operators requesting qualification in a qualification system and the objective rules and criteria for the exclusion and selection of candidates and tenderers in open, restricted or negotiated procedures, in competitive dialogues or in innovation partnerships may include the exclusion grounds listed in Article 57 of Directive 2014/24/EU on the terms and conditions set out therein.

Where the contracting entity is a contracting authority, those criteria and rules shall include the exclusion grounds listed in Article 57(1) and (2) of Directive 2014/24/EU on the terms and conditions set out in that Article.

If so required by Member States, those criteria and rules shall, in addition, include the exclusion grounds listed in Article 57(4) of Directive 2014/24/EU on the terms and conditions set out in that Article.

…’

B. Portuguese law

1. Decreto-lei n.º 18/2008, Código dos Contratos Públicos (4)

6. Article 55 (‘Impediments’) provides:

‘The following may not be candidates, tenderers or members of a group:

…

(c) natural persons who have received a penalty for grave professional misconduct and who, in the intervening period, have not been rehabilitated, and legal persons whose administrative, management or governing bodies have received such an administrative penalty and continue to perform their duties.

…

(f) entities which have received the ancillary penalty of prohibition from participating in public procurement procedures, provided for in special legislation, including in penalty systems relating to … competition …, during the period laid down in the decision imposing the penalty’.

7. Article 70 (‘Evaluation of tenders’) provides in paragraph 2:

‘2. Tenders shall be excluded where their evaluation indicates:

…

(g) the existence of compelling evidence of acts, agreements, practices or information that may distort the competition rules.’

2. Lei n.º 19/2012 da Concorrência (Law on competition) (5)

8. Article 71 (‘Ancillary penalties’) provides in paragraph 1(b) that, if justified by the seriousness of the infringement and the degree of fault of the infringer, the Autoridade de Concorrência (the Competition Authority; ‘AC’) may impose, in addition to a fine, the ancillary penalty of deprivation of the right to participate in certain public procurement procedures, provided that the practice constituting the infringement punishable by a fine occurred during or as a result of the relevant procedure.

II. Facts, dispute and questions referred for a preliminary ruling

9. On 18 January 2019, Infraestruturas de Portugal, S. A (‘Infraestruturas’) launched a procedure for the award of a contract for the supply of creosoted pine sleepers and rods for a base price of EUR 2 979 200. (6)

10. The undertakings Toscca – Equipamentos em Madeira, Lda. (‘Toscca’) and Futrifer, Indústrias Ferroviárias, S. A. (‘Futrifer’) participated in the procedure, each submitting a tender.

11. On 12 June 2019, the AC ordered Futrifer to pay a fine for having infringed the competition rules in procurement procedures (7) in 2014 and 2015. (8)

12. In particular, the AC found that Futrifer and other undertakings in the sector had colluded to fix prices and share the market for rail network maintenance services, in breach of Article 9(1) of Law No 19/2012 and Article 101(1) TFEU.

13. In its decision, the AC considered it unnecessary, in view of the circumstances of the case and the settlement proposal submitted by Futrifer, to impose on it the ancillary penalty of prohibition from tendering, provided for in Article 71(1)(b) of Law No 19/2012. (9)

14. On 27 July 2019, Infraestruturas awarded the contract in question to Futrifer.

15. Toscca challenged that decision before the Tribunal administrativo e fiscal de Viseu (Administrative and Tax Court, Viseu, Portugal; ‘the TAF Viseu’). It asked that court to annul the award decision, to exclude the tender submitted by Futrifer and to award the contract to Toscca itself. In support of its action, it relied, in particular, on the AC’s decision to impose a penalty on Futrifer.

16. The first-instance court dismissed Toscca’s action on the ground that Article 70(2)(g) of the CCP applies only where the evidence of distortion of competition arises in the procedure forming the subject matter of the dispute.

17. Toscca appealed against the judgment of the TAF Viseu before the Tribunal central administrativo norte (North Central Administrative Court, Portugal). By judgment of 29 May 2020, that court found that the first-instance court had misinterpreted Article 70(2)(g) of the CCP and, in consequence, it set aside the judgment under appeal and ordered...