Public procurement by the institutions of the european union

In a call for tenders launched by the European Central Bank (ECB) for the provision of services and works for IT application delivery, the tenders submitted by the applicant, European Dynamics Luxembourg SA, were excluded, on the basis of the rules in force, [1] on the ground that the applicant had attempted to unduly influence the ECB's decision-making process in the procurement procedure.

The General Court, hearing an action, inter alia, for annulment of that exclusion decision, provides clarification, first, as to the interpretation of the purpose of exclusion and, secondly, as regards the concept of attempting to unduly influence the contracting authority. The Court finds that the action should be dismissed in its entirety.

In the first place, as regards interpreting the rules under which the ECB excluded the applicant's tenders, the Court points to linguistic disparities. Accordingly, pursuant to some language versions, there exist two situations in which a candidate or tenderer may be excluded from participating in a tender. The first of those situations is that of a candidate or tenderer who contacts other candidates or tenderers with the purpose of restraining competition. The second is where a candidate or tenderer attempts in any way whatsoever to unduly influence the decision‑making process in the procurement procedure.

Consequently, owing to the divergence between the various language versions, the Court interprets the contested provisions by reference to the objectives and context of the rules of which they form part.

As regards the teleological interpretation, the Court finds that the objective of the ground given for excluding the applicant's tenders is to ensure equal opportunities for candidates, in accordance with the general principles of equal access and treatment, non-discrimination and fair competition applicable to the ECB. The Court considers that those principles may be undermined not only by means of contacts between candidates or tenderers for the purpose of restraining competition, but also when a candidate or tenderer attempts, by other means, to unduly influence the decision-making process in the procurement procedure.

As far as concerns the context of the rules at issue, the Court observes that the contested provisions are similar to those of Directive 2014/24 (2). Even though the directives concerning the award of public works contracts, public supply contracts and public service contracts are not directly applicable to public contracts concluded by the EU administration, the rules or principles laid down in or derived from those directives can be relied on against that administration when they themselves simply appear to be the specific expression of fundamental rules of the Treaty and of general principles of law which are directly applicable to the EU administration. Furthermore, in accordance with the principle patere legem quam ipse fecisti, such rules or principles may be relied on against the EU administration if, in the exercise of its operational and institutional autonomy and within the limits of its powers, it has adopted a measure which refers directly to certain rules or principles laid down in the directives. In the present case, the Court, first, finds that the ECB has stated in the rules that are in force that it respects the general principles of procurement law as reflected inter alia in Directive 2014/24. Secondly, the Court observes that the provisions of that directive, which are similar to those of the rules adopted by the ECB, are an expression of the general principles of public procurement law, including, in particular, the principle of equal opportunities and the equal treatment of tenderers, inasmuch as the ground for exclusion laid down in those provisions is intended to prevent any attempt to unduly influence the decision-making process in a tendering procedure by any means whatsoever.

The Court holds that it is apparent from the teleological and contextual interpretation of the contested provisions that they cover two different exclusion situations, the second, contrary to what the applicant claims, being intended to apply also to communications addressed by the candidates or tenderers to the contracting authority when they are aimed at unduly influencing the decision-making process during the procurement procedure.

In the second place, the Court provides clarification as to the concept of attempting to exercise undue influence. First of all, notwithstanding the absence of a definition of that concept in the ECB's decision laying down the rules on procurement, the mere fact of a candidate or tenderer trying to influence the decision-making process by various means without, however, achieving the result expected, is sufficient, in the light of the provisions on which the ECB relied, to justify the exclusion of a tender. Next, that attempt must have been made ‘unduly', that is to say, in a manner contrary to the rules in force. Lastly, the attempt to exercise undue influence must concern the decision-making process, which is to be understood as the entire phase in which the contracting authority examines the tenders, from their submission, throughout all the successive stages, and up to the adoption of the decisions on exclusion, selection or award, including during the enquiries carried out by the contracting authority on price tenders appearing to be abnormally low. Such enquiries constitute a stage in the evaluation of the tenders.

(1) Article 30(5)(g) of Decision (EU) 2016/245 of the European Central Bank of 9 February 2016 laying down the rules on procurement (recast) (ECB/2016/2) (OJ 2016 L 45, p. 15).

(2) Article 57(4)(i) 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).