Contents
Judgment of the Court (Fourth Chamber)15 September 2022note(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 proceedingsVeridos GmbHvMinistar 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
1This 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’).
2The 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
3Article 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.
4Article 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
5Under 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.’
6Article 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 invite a number of candidates at least equal to the minimum number set in advance, provided a sufficient number of suitable candidates is available[.]Where the number of candidates meeting the selection criteria and the minimum levels of ability is below the minimum number, the contracting authority/entity may continue the procedure by inviting the candidate or candidates with the required capabilities.If the contracting authority/entity considers that the number of suitable candidates is too low to ensure genuine competition, it may suspend the procedure and republish the initial contract notice in accordance with Article 30(2) and Article 32, fixing a new deadline for the submission of requests to participate. In this case, the candidates selected upon the first publication and those selected upon the second shall be invited in accordance with Article 34. This option shall be without prejudice to the ability of the contracting authority/entity to cancel the ongoing procurement procedure and launch a new procedure.4. In the context of an award procedure, the contracting authority/entity may not include economic operators other than those which made a request to participate, or candidates without the requisite capabilities.5. Where the contracting authorities/entities exercise the option of reducing the number of solutions to be discussed or of tenders to be negotiated, as provided for in Article 26(3) and Article 27(4), they shall do so by applying the award criteria stated in the contract notice or the contract documents. In the final stage, the number arrived at shall make for genuine competition in so far as there are enough solutions or suitable candidates.’
7Article 49 of that directive, entitled ‘Abnormally low tenders’, provides:1.If, for a given contract, tenders appear to be abnormally low in relation to the goods, works or services, the contracting authority/entity shall, before it rejects those tenders, request in writing details of the constituent elements of the tender which it considers relevant.Those details may relate in particular to:(a) the economics of the construction method, manufacturing process or services provided;(b) the technical solutions chosen and/or any exceptionally favourable conditions available to the tenderer for the execution of the work or for the supply of the goods or services;(c) the originality of the work, supplies or services proposed by the tenderer;(d) compliance with the provisions relating to employment protection and working conditions in force at the place where the work, service or supply is to be performed;(e) the possibility of the tenderer obtaining State aid.2. The contracting authority/entity shall verify those constituent elements by consulting the tenderer, taking account of the evidence supplied.3. Where a contracting authority/entity establishes that a tender is abnormally low because the tenderer has obtained State aid, the tender can 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/entity, that the aid in question was granted legally. Where the contracting authority/entity rejects a tender in those circumstances, it shall inform the Commission thereof.’
8Article 55 of that directive is entitled ‘Scope and availability of review procedures’; paragraphs 2 and 4 thereof are worded as follows:2. Member States shall take the measures necessary to ensure that decisions taken by the contracting authorities/entities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in Articles 56 to 62, on the grounds that such decisions have infringed Community law in the field of procurement or national rules transposing that law.…4. Member States shall ensure that review procedures are available, under detailed rules which Member States may establish, at least to any person having or having had an interest in obtaining a particular contract who has been or risks being harmed by an alleged infringement.’
Bulgarian law
9Article 72 of the Zakon za obshtestvenite porachki (Law on Public Procurement), entitled ‘Abnormally low tenders’, provides, in paragraph 1 thereof:‘If, in a tenderer’s tender, an element that is linked to price or costs and is subject to assessment is more than 20% lower than the mean value of the tenders submitted by the other tenderers in respect of the same criterion for assessment, the contracting authority shall request a detailed written explanation of how that element was prepared, to be submitted within five days of receiving the request.’
10Under Article 212 of that law, the Komisia za zashtita na konkurentsiata (Commission for Protection of Competition, Bulgaria) is to rule on complaints made against the contracting authority’s decision within one month or 15 days from the initiation of the proceedings and a reasoned decision is to be drawn up and published at the latest within seven days of the ruling on the complaint.
11In addition, Article 216 of that law provides for an expedited procedure accompanied by shortened time limits for certain procedural steps. In accordance with paragraph 6 of that article, the Varhoven administrativen sad (Supreme Administrative Court, Bulgaria) is to rule within one month of the date of an appeal in cassation against the ruling of the Commission for Protection of Competition being lodged with it, and its decision is final.
The dispute in the main proceedings and the questions referred for a preliminary ruling
12By a decision of 15 August 2018, the zamestnik-ministar na vatreshnite raboti (Deputy Minister for the Interior) launched a ‘restricted’ procurement procedure concerning the planning, establishment and management of a Generation 2019 system for the issue of Bulgarian identity documents. In that regard, an auxiliary commission was appointed to preselect candidates and to examine, assess and rank the tenders.
13Following that preselection, Veridos and the consortium Mühlbauer ID Services GmbH – S&T were invited to submit tenders. By a decision of the Deputy Minister for the Interior of 29 April 2020, the contract was awarded to that consortium.
14Veridos brought a complaint against that decision before the Commission for Protection of Competition, which, by a decision of 25 June 2020, rejected that complaint. On 13 July 2020, Veridos lodged an appeal in cassation against that decision before the Varhoven administrativen sad (Supreme Administrative Court), which is the referring court.
15According to that court, the request for a preliminary ruling is intended to establish whether the contracting authority is under an obligation to verify whether an abnormally low tender exists, in accordance with the principles of transparency, non-discrimination and equal treatment enshrined in EU law, in order to ensure an objective comparison of tenders and to determine, under conditions of effective competition, which tender is the most economically advantageous, without that tender, however, being abnormally low such as to distort competition.
16In addition, that court states that Article 72(1) of the Law on Public Procurement governs the criterion for verifying whether a tender is abnormally low by requiring that that tender be ‘more than 20% lower than the mean value of the tenders submitted by the other tenderers in respect of the same criterion for assessment’. Thus, the Bulgarian legislature implicitly requires that there be at least three tenders, since one of them must be assessed against the mean value of the other two. In that regard, the referring court states that it is in that context that the Commission for Protection of Competition found that that provision did not apply, since only two tenders had been submitted, and that, consequently, that mean value could not be calculated.
17The referring court adds that the contracting authority, namely the Deputy Minister for the Interior, had no algorithm drawn up and announced in advance, which could be subject to review in the light of EU law, for the purposes of assessing and analysing whether an abnormally low tender exists.
18Thus, that court states that the existence of a criterion which is laid down by law but inapplicable in practice, as well as the absence of any other criterion announced in advance such as to allow abnormally low tenders to be identified, raises the questions, first, whether the contracting authority is exempt from the obligation to verify whether such a tender exists, given that the Court of Justice has expressly stated, in its case-law, that the contracting authority must be satisfied that the tenders submitted to it are genuine, and, second, whether the contracting authority is always required to state reasons for its finding that an abnormally low tender exists or whether it may defend its decision ranking tenderers by providing reasons as regards the substance in judicial review proceedings. In that context, the referring court states that the latter question must be analysed in the light of the case-law of the Court of Justice according to which the reasons for such a decision may not be explained for the first time before a court except under exceptional circumstances.
19In those circumstances, the Varhoven administrativen sad (Supreme Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Is Article 56 of Directive [2014/24] in conjunction with Article 69 thereof, or, respectively, Article 38 of Directive [2009/81] in conjunction with Article 49 thereof, to be interpreted as meaning that a contracting authority, where it is objectively impossible to apply the criterion laid down in national law for the evaluation of an abnormally low tender and in the absence of a different criterion selected by the contracting authority and announced in advance, is not required to verify whether an abnormally low tender exists?(2) Is Article 56 of Directive 2014/24 in conjunction with Article 69 thereof, or, respectively, Article 38 of Directive 2009/81 in conjunction with Article 49 thereof, to be interpreted as meaning that the contracting authority is required to verify whether abnormally low tenders exist only if there is a suspicion regarding any tender; or, conversely, is the contracting authority required to always ensure that the received tenders are genuine, and state the relevant reasons?(3) Does such a requirement apply to the contracting authority if only two tenders have been received during the procedure for the award of a public contract?(4) Is Article 47 of the [Charter] to be interpreted as meaning that the contracting authority’s assessment as regards a lack of suspicion that an abnormally low tender exists, or, respectively, that contracting authority’s conviction that the first-ranked tenderer has submitted a genuine tender, is subject to judicial review?(5) Should the previous question be answered in the affirmative: is Article 47 of the [Charter] to be interpreted as meaning that a contracting authority in a procedure for the award of a public contract which has not verified whether an abnormally low tender exists is required to provide justification and reasons as to why there is no suspicion that an abnormally low tender has been submitted, in other words, that the first-ranked tender is genuine?’
The request for an expedited procedure
20The referring court has requested that the Court determine the present case pursuant to an expedited procedure under Article 105(1) of the Rules of Procedure of the Court of Justice.
21In support of its request, that court, first, states that the public contract at issue in the main proceedings concerns the issue and renewal of Bulgarian identity documents and that, as such, it is directly linked to national security and the legitimate legal status of Bulgarian nationals, and second, refers to the existence of an expedited procedure accompanied by shortened time limits provided for in Articles 212 and 216 of the Law on Public Procurement as regards certain procedural steps.
22In addition, that court states that the need to determine the present reference for a preliminary ruling pursuant to the expedited procedure provided for in Article 105 of the Rules of Procedure does not stem from the financial aspect of the public contract concerned, but from the consequences of its implementation and the legal relationships linked to the main judicial proceedings. Those proceedings concern the identity documents of an indefinite number of Bulgarian citizens and their ability to exercise their fundamental rights, such as freedom of movement, freedom of establishment and the right to vote.
23Article 105(1) of the Rules of Procedure provides that, at the request of the referring court or tribunal or, exceptionally, of his or her own motion, the President of the Court may, where the nature of the case requires that it be dealt with within a short time, after hearing the Judge-Rapporteur and the Advocate General, decide that a reference for a preliminary ruling is to be determined pursuant to an expedited procedure derogating from the provisions of those rules.
24In that connection, as regards, first of all, the fact that the questions raised by the present case may affect a large number of Bulgarian nationals and legal relationships, it must be borne in mind that the expedited procedure referred to in that provision is a procedural instrument intended to address matters of exceptional urgency (judgment of 28 April 2022, Caruter, C‑642/20, EU:C:2022:308, paragraph 21 and the case-law cited).
25The large number of persons or legal situations which may be affected by the decision that a referring court must give after making a reference to the Court for a preliminary ruling does not, as such, constitute an exceptional circumstance justifying the application of the expedited procedure (judgment of 3 March 2022, Presidenza del Consiglio dei Ministri and Others (Trainee specialist doctors), C‑590/20, EU:C:2022:150, paragraph 28 and the case-law cited).
26Next, although the referring court refers to the significant and sensitive nature of the public contract at issue in the main proceedings, relating to the issue and renewal of Bulgarian identity documents, and of the responses that the Court is likely to give to the questions which have been put to it, in the field of EU law at issue, those separate elements are not such as to justify, in themselves, the present case being determined pursuant to the expedited procedure (see, to that effect, order of the President of the Court of 25 February 2021, Sea Watch, C‑14/21 and C‑15/21, EU:C:2021:149, paragraph 24).
27In any event, it is not apparent from the request referred to in paragraph 20 of the present judgment in what way the length of the proceedings before the Court is likely to affect the production or issue of such documents.
28In addition, it is apparent from the Court’s case-law that the mere interest of litigants in determining as quickly as possible the scope of their rights under EU law, while legitimate, is not such as to establish the existence of an exceptional circumstance for the purposes of Article 105(1) of the Rules of Procedure (judgment of 28 April 2022, Phoenix Contact, C‑44/21, EU:C:2022:309, paragraph 16 and the case-law cited).
29Lastly, as regards the existence of short procedural time limits, it must be noted that the requirement for a dispute pending before the Court to be dealt with rapidly cannot derive solely from the fact that the referring court is required to ensure the rapid settlement of the dispute or from the mere fact that the delay or suspension of the works concerned by a public contract could have adverse effects on the persons concerned (judgment of 28 April 2022, Caruter, C‑642/20, EU:C:2022:308, paragraph 24 and the case-law cited).
30In those circumstances, on 1 February 2021, after hearing the Judge-Rapporteur and the Advocate General, the President of the Court decided to reject the request referred to in paragraph 20 of the present judgment.
Consideration of the questions referred
31As a preliminary point, it must be noted that the referring court is asking the Court to interpret both Articles 38 and 49 of Directive 2009/81 and Articles 56 and 69 of Directive 2014/24. That being said, since that court states that, even though the public contract at issue has aspects coming within the scope of Directive 2014/24, the contracting authority decided to award a single contract in accordance with the rules of Directive 2009/81, it is appropriate to interpret the relevant provisions of that latter directive. It is important, in that regard, to point out that that interpretation can be transposed to the provisions of Directive 2014/24 where those provisions are, in essence, identical to those of Directive 2009/81.
The first to third questions
32By its first to third questions, which it is appropriate to examine together, the referring court asks, in essence, whether Articles 38 and 49 of Directive 2009/81 are to be interpreted as imposing on the contracting authority the obligation to verify whether an abnormally low tender exists, even in the absence of any suspicion regarding a tender or where the criterion laid down for that purpose by national legislation, which implicitly amounts to requiring that there be at least three tenders, does not apply on account of the insufficient number of tenders submitted.
33EU law does not define the concept of an ‘abnormally low tender’. However, as the Advocate General noted in points 30 to 32 of his Opinion, the outlines of that concept have already been defined by the Court in the context of the interpretation of directives relating to public contracts other than the directive referred to in the preceding paragraph.
34Thus, the Court has held, on several occasions, that it is for the Member States and, in particular, the contracting authorities to determine the method of calculating an anomaly threshold constituting an abnormally ‘low’ tender (see, inter alia, judgments of 27 November 2001, Lombardini and Mantovani, C‑285/99 and C‑286/99, EU:C:2001:640, paragraph 67, and of 18 December 2014, Data Medical Service, C‑568/13, EU:C:2014:2466, paragraph 49) or to set its value, provided that an objective and non-discriminatory method is used. It has also held that the contracting authority is under an obligation ‘to identify suspect tenders’ (see, to that effect, judgment of 27 November 2001, Lombardini and Mantovani, C‑285/99 and C‑286/99, EU:C:2001:640, paragraph 55).
35Furthermore, the Court has stated that the abnormally low nature of a tender must be assessed in relation to the service concerned. Thus, in the course of examining the abnormally low nature of a tender, the contracting authority may, for the purpose of ensuring healthy competition, take into consideration all the factors that are relevant in the light of that service (see, inter alia, judgments of 29 March 2012, SAG ELV Slovensko and Others, C‑599/10, EU:C:2012:191, paragraphs 29 and 30, and of 18 December 2014, Data Medical Service, C‑568/13, EU:C:2014:2466, paragraph 50).
36In that regard, Articles 38 and 49 of Directive 2009/81 mean that the contracting authority is under an obligation, first, to identify suspect tenders, second, to allow the tenderers concerned to demonstrate their genuineness by asking them to provide the details which it considers appropriate, third, to assess the merits of the information provided by the persons concerned and, fourth, to take a decision as to whether to admit or reject those tenders. It is only on condition that the reliability of a tender is, a priori, doubtful that the obligations arising from those articles are imposed on the contracting authority (see, by analogy, judgment of 19 October 2017, Agriconsulting Europe v Commission, C‑198/16 P, EU:C:2017:784, paragraphs 51 and 52 and the case-law cited).
37As the Advocate General noted in point 38 of his Opinion, the contracting authority has to identify tenders which appear suspect, and are therefore subject to the inter partes examination procedure provided for in Article 49 of Directive 2009/81, in the light of all the features of the subject matter of the invitation to tender concerned. Comparison with other, competing tenders, however useful it may be in certain cases for the purpose of identifying any anomalies, cannot constitute the sole criterion used by the contracting authority in that regard.
38The examination of all the components relating to the invitation to tender and the contract documents concerned must enable the contracting authority to determine whether, despite the existence of distance between the suspect tender and the tenders submitted by the other tenderers, that tender is sufficiently genuine. In that regard, the contracting authority may rely on national rules which define a particular method for identifying abnormally low tenders.
39Nevertheless, in the light of the foregoing considerations, it must be stated that Directive 2009/81 does not preclude the abnormally low nature of a tender from being assessed where only two tenders have been submitted. On the contrary, the inapplicability of the criterion laid down by national law for the purpose of assessing the abnormally low nature of a tender is not such as to exempt the contracting authority from its obligation, set out in paragraph 36 of the present judgment, to identify suspect tenders and to carry out, where there are such tenders, an inter partes examination.
40It follows from the foregoing that Articles 38 and 49 of Directive 2009/81 must be interpreted as meaning that a contracting authority, where there is suspicion that a tender is of an abnormally low nature, is required to verify whether this is actually the case by taking account of all the relevant components of the invitation to tender and the contract documents, without the impossibility of applying the criteria laid down for that purpose by a piece of national legislation or the number of tenders submitted being relevant in that regard.
The fourth and fifth questions
41By its fourth and fifth questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 55(2) of Directive 2009/81, read in the light of Article 47 of the Charter, is to be interpreted as meaning that the contracting authority’s finding that there is no suspicion as regards the existence of an abnormally low tender or its conclusion that the tender submitted by a first-ranked tenderer is genuine is subject to judicial review and whether the contracting authority is then required to state the reasons for its finding in the decision awarding the contract.
42As the Advocate General noted in points 47 and 48 of his Opinion, in referring to abnormally low tenders, Article 49 of Directive 2009/81 does not impose on a contracting authority an indiscriminate obligation explicitly to state its views on whether the tender concerned might be of an abnormally low nature. Rather, under that article, that obligation arises if, ‘for a given contract’, the contracting authority considers that ‘tenders’ appear to be ‘abnormally low in relation to the … services’.
43In that regard, it is apparent from Article 35 of Directive 2009/81 that the contracting authorities must, at the earliest opportunity, inform candidates and tenderers of decisions reached concerning the award of a contract and that that information is to be given in writing upon request. In particular, where the party concerned makes a request in writing, the contracting authorities are to communicate to it, inter alia, adequate evidence substantiating the essential decisions taken during the procedure for the award of a contract. Consequently, where a contracting authority finds that a tender appears to be abnormally low and therefore conducts an inter partes examination procedure with the tenderer concerned, it is necessary to make a record of the result in writing.
44Thus, it is only where there is suspicion that a tender is of an abnormally low nature, and following the inter partes examination procedure referred to in paragraph 37 of the present judgment, that the contracting authority must formally adopt a reasoned decision admitting or rejecting the tender in question.
45However, in the present case, it is apparent from the file before the Court that the contracting authority neither initiated the inter partes examination procedure provided for in Article 49 of Directive 2009/81 nor adopted an express decision in that regard.
46In that situation, the obligation arising from Article 55(2) of Directive 2009/81 and Article 47 of the Charter, according to which the decision to award the contract at issue must be amenable to effective review, requires that tenderers who consider themselves wronged must be able to challenge that decision by claiming that the successful tender should have been classified as ‘abnormally low’.
47In that regard, the fact that a tender is not regarded as being ‘abnormally low’, without this being set out in a specific statement of reasons, cannot, as such, lead to the annulment of the procedure for the award of a contract, since the EU legislature has not imposed on contracting authorities the obligation to adopt an express reasoned decision finding that there are no abnormally low tenders.
48In the light of the foregoing, the answer to the fourth and fifth questions is that Article 55(2) of Directive 2009/81, read in conjunction with Article 47 of the Charter, must be interpreted as meaning that, where a contracting authority has failed to initiate a procedure to verify whether a tender might be of an abnormally low nature, on the ground that it considered that none of the tenders submitted to it was of such a nature, its assessment may be subject to judicial review in the context of proceedings against the decision to award the contract at issue.
Costs
49Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
Operative part
On those grounds, the Court (Fourth Chamber) hereby rules:
1.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,must be interpreted as meaning that a contracting authority, where there is suspicion that a tender is of an abnormally low nature, is required to verify whether this is actually the case by taking account of all the relevant components of the invitation to tender and the contract documents, without the impossibility of applying the criteria laid down for that purpose by a piece of national legislation or the number of tenders submitted being relevant in that regard.
2.Article 55(2) of Directive 2009/81, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union,must be interpreted as meaning that, where a contracting authority has failed to initiate a procedure to verify whether a tender might be of an abnormally low nature, on the ground that it considered that none of the tenders submitted to it was of such a nature, its assessment may be subject to judicial review in the context of proceedings against the decision to award the contract at issue.
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