Case C‑216/17
Autorità Garante della Concorrenza e del Mercato — Antitrust and Coopservice Soc. coop. arl
v
Azienda Socio-Sanitaria Territoriale della Vallecamonica — Sebino (ASST) and Others
(Request for a preliminary ruling from the Consiglio di Stato)
(Reference for a preliminary ruling — Directive 2004/18/EC — Article 1(5) — Article 32(2) — Award of public works contracts, public supply contracts and public service contracts — Framework agreements — Clause extending the framework agreement to other contracting authorities — Principles of transparency and equal treatment of economic operators — No determination of the quantity covered by subsequent public procurement contracts or determination by reference to the usual requirements of the contracting authorities that are not signatories to the framework agreement — Prohibition)
Summary — Judgment of the Court (Eighth Chamber), 19 December 2018
EU law — Judicial proceedings before a national court — Raising of its own motion of an issue alleging an infringement of EU law — No obligation of the national court — Limits
(Art. 4(3) TEU)
Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Award of contracts — Conclusion by the contracting authority of a framework agreement with several successful bidders — Use of a clause extending of the framework agreement to other contracting authorities — Lawfulness — Conditions
(European Parliament and Council Directive 2004/18, recital 11 and Arts 32(2) and (4))
Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Award of contracts — Principles of equal treatment of tenderers and transparency — Scope — Obligation to formulate clearly, precisely and unequivocally the conditions and procedures for awarding the contract
(Arts 49 and 56 TFEU; European Parliament and Council Directive 2004/18, Art. 2)
Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Award of contracts — Conclusion by the contracting authority of a framework agreement with several successful bidders — Extension of the framework agreement to other contracting authorities that are not parties thereto — Possibility for those contracting authorities to refrain from determining the quantity of subsequent public procurement contracts or to determine the quantity by reference to their usual requirements — Precluded — Breach of the principles of transparency and equal treatment
(European Parliament and Council Directive 2004/18, Arts 1(5) and 32(2), fourth para.)
Moreover, EU law does not require national courts to raise of their own motion an issue concerning the breach of provisions of EU law where examination of that issue would oblige them to abandon the passive role assigned to them by going beyond the ambit of the dispute defined by the parties themselves and relying on facts and circumstances other than those on which the party with an interest in application of those provisions bases his claim (see, to that effect, judgment of 14 December 1995, van Schijndel and van Veen, C‑430/93 and C‑431/93, EU:C:1995:441, paragraphs 21 and 22).
(see para. 40)
In that regard, it is appropriate, first, to note that the second subparagraph of Article 32(4) of Directive 2004/18, read in the light of recital 11 of that directive, provides that, where a framework agreement has been concluded with several successful bidders, subsequent contracts are to be concluded after competition has been reopened between the parties to the framework agreement in relation to the terms that have not been fixed. It follows from those provisions that the requirement to be an original party to the framework agreement applies only to economic operators, as it is out of the question that contracting authorities would be required to compete amongst themselves.
It follows from the findings above that the purpose of the second subparagraph of Article 32(2) of Directive 2004/18 is to allow a contracting authority to give other contracting authorities access to a framework agreement that it is proposing to conclude with the economic operators who will be original parties thereto. It is not, therefore, a requirement of the second subparagraph of Article 32(2) of Directive 2004/18 that a ‘secondary’ contracting authority, such as the ASST of Valcamonica in the main proceedings, be a signatory to the framework agreement in order for it to be able to award a subsequent contract at a later date. It is sufficient that such a contracting authority appear as a potential beneficiary of that framework agreement from the date on which it is concluded by being clearly identified in the tender documents with an explicit reference that makes both the ‘secondary’ contracting authority itself and any interested operator aware of that possibility. That reference can appear either in the framework agreement itself or in another document, such as an extension clause in the tender specifications, as long as the requirements as to advertising and legal certainty and, consequently, those relating to transparency are complied with.
(see paras 51, 52, 55, 56)
Not only the principles of equal treatment and non-discrimination, but also the principle of transparency that stems from them (see, to that effect, judgment of 17 December 2015, UNIS and Beaudout Père et Fils, C 25/14 and C 26/14, EU:C:2015:821, paragraph 38) imply that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or tender specifications so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, second, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the contract in question (see, to that effect, judgment of 13 July 2017, INGSTEEL and Metrostav, C 76/16, EU:C:2017:549, paragraph 34).
(see para. 63)
Article 1(5) and the fourth subparagraph of Article 32(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 must be interpreted as meaning that:
–
a contracting authority may act on its own behalf and on behalf of other contracting authorities that are specifically indicated but are not direct parties to a framework agreement, provided that the requirements as to advertising and legal certainty and, consequently, those relating to transparency are complied with; and
–
it cannot be accepted that contracting authorities that are not signatories to the framework agreement refrain from determining the quantity of services that may be required when they conclude contracts pursuant to the framework agreement or determine that quantity by reference to their usual requirements, because, if they do so, the principles of transparency and equal treatment of economic operators with an interest in the conclusion of that framework agreement will be infringed.
(see para. 70, operative part)