Veridos GmbH v Ministar na vatreshnite raboti na Republika Bulgaria and Mühlbauer ID Services GmbH – S&T.

JurisdictionEuropean Union
ECLIECLI:EU:C:2022:684
Date15 September 2022
Docket NumberC-669/20
Celex Number62020CJ0669
CourtCourt of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Fourth Chamber)

15 September 2022 (*)

(Reference for a preliminary ruling – Directive 2009/81/EC – Coordination of procedures for the award of certain works contracts, supply contracts and service contracts – Articles 38 and 49 – Obligation to verify whether an abnormally low tender exists – Criterion laid down by a piece of national legislation for assessing the abnormally low nature of a tender – Not applicable – Requirement that there be at least three tenders – Criterion based on the requirement that a tender be more than 20% lower than the mean value of the tenders submitted by the other tenderers – Judicial review)

In Case C‑669/20,

REQUEST for a preliminary ruling under Article 267 TFEU from the Varhoven administrativen sad (Supreme Administrative Court, Bulgaria), made by decision of 10 November 2020, received at the Court on 8 December 2020, in the proceedings

Veridos GmbH

v

Ministar na vatreshnite raboti na Republika Bulgaria,

Mühlbauer ID Services GmbH – S&T,

THE COURT (Fourth Chamber),

composed of C. Lycourgos, President of the Chamber, S. Rodin (Rapporteur), J.-C. Bonichot, L.S. Rossi and O. Spineanu-Matei, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Veridos GmbH, by T.P. Nenov, advokat,

– Mühlbauer ID Services GmbH – S&T, by Y. Lambovski, advokat,

– the Bulgarian Government, by M. Georgieva and L. Zaharieva, acting as Agents,

– the Czech Government, by M. Smolek and J. Vláčil, acting as Agents,

– the French Government, by R. Bénard, A.-L. Desjonquères and É. Toutain, acting as Agents,

– the Austrian Government, by J. Schmoll, acting as Agent,

– the European Commission, by P. Ondrůšek, G. Wils and I. Zaloguin, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 24 February 2022,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Articles 56 and 69 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 (OJ 2014 L 94, p. 65), Articles 38 and 49 of Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17/EC and 2004/18/EC (OJ 2009 L 216, p. 76), and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2 The request has been made in proceedings between Veridos GmbH, on the one hand, and the Ministar na vatreshnite raboti na Republika Bulgaria (Minister for the Interior of the Republic of Bulgaria) and the consortium Mühlbauer ID Services GmbH – S&T, on the other, concerning a decision ranking tenderers and selecting the successful tenderer in respect of a public contract.

Legal context

European Union law

Directive 2014/24

3 Article 56 of Directive 2014/24, entitled ‘General principles’, provides, in paragraph 1 thereof, that contracts are to be awarded on the basis of criteria laid down in accordance with Articles 67 to 69 thereof, provided that the contracting authority has verified that a certain number of conditions are fulfilled in accordance with Articles 59 to 61 of that directive.

4 Article 69 of that directive, entitled ‘Abnormally low tenders’, provides:

‘1. Contracting authorities shall require economic operators to explain the price or costs proposed in the tender where tenders appear to be abnormally low in relation to the works, supplies or services.

2. The explanations referred to in paragraph 1 may in particular relate to:

(a) the economics of the manufacturing process, of the services provided or of the construction method;

(b) the technical solutions chosen or any exceptionally favourable conditions available to the tenderer for the supply of the products or services or for the execution of the work;

(c) the originality of the work, supplies or services proposed by the tenderer;

(d) compliance with obligations referred to in Article 18(2);

(e) compliance with obligations referred to in Article 71;

(f) the possibility of the tenderer obtaining State aid.

3. The contracting authority shall assess the information provided by consulting the tenderer. It may only reject the tender where the evidence supplied does not satisfactorily account for the low level of price or costs proposed, taking into account the elements referred to in paragraph 2.

Contracting authorities shall reject the tender, where they have established that the tender is abnormally low because it does not comply with applicable obligations referred to in Article 18(2).

4. Where a contracting authority establishes that a tender is abnormally low because the tenderer has obtained State aid, the tender may be rejected on that ground alone only after consultation with the tenderer where the latter is unable to prove, within a sufficient time limit fixed by the contracting authority, that the aid in question was compatible with the internal market within the meaning of Article 107 TFEU. Where the contracting authority rejects a tender in those circumstances, it shall inform the Commission thereof.

5. Upon request, Member States shall make available to other Member States by means of administrative cooperation any information at [their] disposal, such as laws, regulations, universally applicable collective agreements or national technical standards, relating to the evidence and documents produced in relation to details listed in paragraph 2.’

Directive 2009/81

5 Under Article 35 of Directive 2009/81, entitled ‘Information for candidates and tenderers’:

‘1. The contracting authorities/entities shall, at the earliest opportunity, inform candidates and tenderers of decisions reached concerning the award of a contract or the conclusion of a framework agreement, including the grounds for any decision not to award a contract or conclude a framework agreement for which there has been competitive tendering or to recommence the procedure; that information shall be given in writing upon request to the contracting authorities/entities.

2. At the request of the party concerned, the contracting authority/entity shall, subject to paragraph 3, at the earliest opportunity and at the latest within 15 days of receipt of the written request for information, inform the parties as follows:

(a) any unsuccessful candidate of the reasons for the rejection of the application;

(b) any unsuccessful tenderer of the reasons for the rejection of the tender, including, in particular, for the cases referred to in Article 18(4) and (5) the reasons for its decision of non-equivalence or its decision that the works, supplies or services do not meet the performance or functional requirements, and in the cases referred to in Articles 22 and 23, the reasons for its decision of non-conformity with the requirements of security of information and security of supply;

(c) any tenderer which has made an admissible tender that has been rejected, of the characteristics and relative advantages of the tender selected, as well as the name of the successful tenderer or the parties to the framework agreement.

3. Contracting authorities/entities may decide to withhold certain information on the contract award or the conclusion of the framework agreements referred to in paragraph 1 where release of such information would impede law enforcement or otherwise be contrary to the public interest, in particular defence and/or security interests, would prejudice the legitimate commercial interests of economic operators, whether public or private, or might prejudice fair competition between them.’

6 Article 38 of that directive, entitled ‘Verification of the suitability and choice of participants and award of contracts’, provides:

‘1. Contracts shall be awarded on the basis of the criteria laid down in Articles 47 and 49, taking into account Article 19, after the suitability of the economic operators not excluded under Articles 39 or 40 has been checked by contracting authorities/entities in accordance with the criteria of economic and financial standing, of professional and technical knowledge or ability referred to in Articles 41 to 46 and, where appropriate, with the non-discriminatory rules and criteria referred to in paragraph 3.

2. Contracting authorities/entities may require candidates to meet minimum capacity levels in accordance with Articles 41 and 42.

The extent of the information referred to in Articles 41 and 42 and the minimum levels of ability required for a specific contract must be related and proportionate to the subject matter of the contract.

These minimum levels shall be indicated in the contract notice.

3. In restricted procedures, negotiated procedures with publication of a contract notice and competitive dialogues, contracting authorities/entities may limit the number of suitable candidates they will invite to tender or with which they will conduct a dialogue. In this case:

– the contracting authorities/entities shall indicate in the contract notice the objective and non-discriminatory criteria or rules they intend to apply, the minimum number of candidates they intend to invite and, where appropriate, the maximum number. The minimum number of candidates they intend to invite may not be less than three;

– subsequently, the contracting authorities/entities shall...

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1 practice notes
  • Casilda v Banco Cetelem SA.
    • European Union
    • Court of Justice (European Union)
    • 24 Noviembre 2022
    ...mit dem auf eine außerordentliche Dringlichkeitssituation reagiert werden soll (vgl. in diesem Sinne Urteil vom 15. September 2022, Veridos, C‑669/20, EU:C:2022:684, Rn. 24 und die dort angeführte 21 Die beträchtliche Zahl von Personen oder Rechtsverhältnissen, die möglicherweise von der En......
1 cases
  • Casilda v Banco Cetelem SA.
    • European Union
    • Court of Justice (European Union)
    • 24 Noviembre 2022
    ...mit dem auf eine außerordentliche Dringlichkeitssituation reagiert werden soll (vgl. in diesem Sinne Urteil vom 15. September 2022, Veridos, C‑669/20, EU:C:2022:684, Rn. 24 und die dort angeführte 21 Die beträchtliche Zahl von Personen oder Rechtsverhältnissen, die möglicherweise von der En......

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