Staten og Kommunernes Indkøbsservice A/S v BibMedia A/S (C-737/22)

Contents

Judgment of the Court (Fourth Chamber)13 June 2024^note(Reference for a preliminary ruling — Award of public works, public supply and public service contracts — Directive 2014/24/EU — Article 18 — Principles of equal treatment and transparency — Article 46 — Division of a contract into lots — Opportunity for the tenderer which submitted the second most economically advantageous tender to be awarded a lot on the terms of the most economically advantageous tender)In Case C‑737/22,REQUEST for a preliminary ruling under Article 267 TFEU from the Østre Landsret (High Court of Eastern Denmark, Denmark), made by decision of 11 November 2022, received at the Court on 1 December 2022, in the proceedingsStaten og Kommunernes Indkøbsservice A/SvBibMedia A/S,THE COURT (Fourth Chamber),composed of C. Lycourgos (Rapporteur), President of the Chamber, O. Spineanu‑Matei, J.‑C. Bonichot, S. Rodin and L.S. Rossi, Judges,Advocate General: A. Rantos,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– Staten og Kommunernes Indkøbsservice A/S, by J. Bødtcher-Hansen and R. Holdgaard, advokater,– BibMedia A/S, by H. Holtse, advokat,– the Estonian Government, by M. Kriisa, acting as Agent,– the Spanish Government, by I. Herranz Elizalde, acting as Agent,– the Austrian Government, by A. Posch and J. Schmoll, acting as Agents,– the European Commission, by G. Gattinara, C. Vang and G. Wils, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 18 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).

2The request has been made in proceedings between Staten og Kommunernes Indkøbsservice A/S (‘SKI’) and BibMedia A/S concerning the award of a public contract relating to the provision of library materials and related preparatory services.

Legal context

European Union law

3Article 18 of Directive 2014/24, headed ‘Principles of procurement’, provides in paragraph 1:‘Contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.The design of the procurement shall not be made with the intention of excluding it from the scope of this Directive or of artificially narrowing competition. Competition shall be considered to be artificially narrowed where the design of the procurement is made with the intention of unduly favouring or disadvantaging certain economic operators.’

4Article 27 of that directive, entitled ‘Open procedure’, provides in paragraph 1:‘In open procedures, any interested economic operator may submit a tender in response to a call for competition.…’

5Article 28 of that directive, entitled ‘Restricted procedure’, states:1. In restricted procedures, any economic operator may submit a request to participate in response to a call for competition … by providing the information for qualitative selection that is requested by the contracting authority.…2. Only those economic operators invited to do so by the contracting authority following its assessment of the information provided may submit a tender. ……’

6Article 46 of that directive, entitled ‘Division of contracts into lots’, provides:1. Contracting authorities may decide to award a contract in the form of separate lots and may determine the size and subject matter of such lots.…2. Contracting authorities shall indicate, in the contract notice or in the invitation to confirm interest, whether tenders may be submitted for one, for several or for all of the lots.Contracting authorities may, even where tenders may be submitted for several or all lots, limit the number of lots that may be awarded to one tenderer, provided that the maximum number of lots per tenderer is stated in the contract notice or in the invitation to confirm interest. Contracting authorities shall indicate in the procurement documents the objective and non-discriminatory criteria or rules they intend to apply for determining which lots will be awarded where the application of the award criteria would result in one tenderer being awarded more lots than the maximum number.3. Member States may provide that, where more than one lot may be awarded to the same tenderer, contracting authorities may award contracts combining several or all lots where they have specified in the contract notice or in the invitation to confirm interest that they reserve the possibility of doing so and indicate the lots or groups of lots that may be combined.…’

Danish law

7Paragraph 2 of the Udbudsloven (Law on Public Procurement) provides:1. In public procurement procedures …, a contracting authority shall comply with the principles of equal treatment, transparency and proportionality.2. An open procedure may not be designed with the intention of excluding it from the scope of this law or of artificially narrowing competition. Competition shall be considered to be artificially narrowed where the design of the procurement is made with the intention of unduly favouring or disadvantaging one or more specified economic operators.’

8As set out in Paragraph 49(3) of that law:‘A contracting authority shall state the following in the contract notice:(1) whether the tenderer may submit tenders for one, for several or for all of the lots,(2) whether the tenderer can be awarded one, several or all lots and, as the case may be, the lots or groups of lots that may be combined, and(3) the objective and non-discriminatory criteria or rules for determining the award of lots, including how the lots will be awarded where the application of the criteria or rules would result in one tenderer being awarded more lots than the maximum number which the tenderer may be awarded.’

9Paragraph 56 of that law provides:‘In open procedures, any interested economic operator may submit a tender in response to a contract notice. …’

The dispute in the main proceedings and the question referred for a preliminary ruling

10SKI is a central purchasing body owned by the Danish State and Kommunernes Landsforening (Association of Danish Municipalities). That entity was set up to streamline public procurement through the award and implementation of framework agreements on behalf of the State and municipalities.

11On 4 February 2020, SKI launched a tendering procedure with a view to concluding a framework agreement relating to the provision of library materials and preparatory services. The award criterion was the lowest price.

12That contract was divided into eight lots. Lots 1 and 2, comprising the subject matter of the main proceedings, were titled ‘Danish books and sheet music (East)’ and ‘Danish books and sheet music (West)’, and had an estimated value of 253 million Danish kroner (DKK) (approximately EUR 34 million) and DKK 475 million (approximately EUR 63 million), respectively.

13Paragraph 3.1 of the tender specifications relating to that call for tenders provided:‘Lots 1 and 2 are interdependent (see paragraph 3.1.1) and, if a tenderer submits a tender for one of those lots, that tender will automatically be deemed to have been submitted for both lots. …Subject to the above, there are no restrictions on how many or how few of the lots a tenderer may/should submit tenders for.SKI expects to award a contract to one supplier per lot. The same supplier may be awarded several lots.The market for library materials is characterised by there being only a few specialised suppliers and potential tenderers. Danish books and sheet music constitute the largest product area in terms of turnover and are commercially important for the potential tenderers. In order to safeguard competition in the market in the future, the contracts relating to Danish books and sheet music are divided geographically into two lots. The affiliated customers are accordingly divided into two categories, namely “East” and “West”, respectively. …’

14Paragraph 3.1.1 of those tender specifications provided:‘The contracts relating to Danish books and sheet music are being put out to tender according to an “East/West model”, which means that the intention is to designate one supplier in Eastern Denmark and another supplier in Western Denmark, but that the same proposed prices will apply for all customers regardless of whether the customers are located in Eastern or Western Denmark.…The tenderer who submits the most economically advantageous tender will be awarded the contract to be the supplier of Lot 2 – Danish books and sheet music (West).The tenderer who submits the second most economically advantageous tender will be awarded the contract to be the supplier of Lot 1 – Danish books and sheet music (East). However, that tenderer must accept that the award of the contract as the supplier in Eastern Denmark shall require the tenderer to supply the products and services covered by the framework agreement to customers in Eastern Denmark at exactly the same prices as those that have been offered and will be applied in Western Denmark by the tenderer with the most economically advantageous tender.If the tenderer with the second most economically advantageous tender does not agree to be the supplier in Eastern Denmark, the opportunity shall pass to the tenderer with the third most economically advantageous tender, which must likewise accept that the award of the contract as the supplier in Eastern Denmark shall require the tenderer to supply the products and services covered by the framework agreement to customers in Eastern Denmark at exactly the same prices as those which have been offered and will be applied in Western Denmark by the tenderer with the most economically advantageous tender.If that tenderer likewise does not agree to be the supplier in Eastern Denmark, the opportunity shall pass to the next tenderer on the list, and so on. If the list of tenderers with tenders satisfying the tender conditions is exhausted and no supplier for Eastern Denmark is found from among them, the supplier who is awarded the contract for Western Denmark shall also be awarded the contract for Eastern Denmark. ……’

15As at the end of the period for submitting tenders, SKI had received tenders from Audio Visionary Music A/S (‘AVM’) and from BibMedia which each submitted tenders for all of the lots.

16Taking the view that BibMedia had submitted the most economically advantageous tender, SKI awarded Lot 2 (West) to BibMedia and proposed to award Lot 1 (East) to AVM, on the condition that AVM accept to deliver the supplies and perform the services provided for in that lot at the price offered by BibMedia, of which AVM had been informed.

17AVM accepted, whereupon SKI sent a communication of the contract award decision on 21 April 2020.

18On 30 April 2020, AVM lodged a complaint with Klagenævnet for Udbud (Public Procurement Complaints Board, Denmark; ‘the Complaints Board’).

19On 14 January 2021, the Complaints Board found that SKI had infringed Paragraph 2(1) of the Law on Public Procurement by applying a procedure for the award of Lots 1 and 2, the terms of which meant, in essence, that the tenderer which had submitted the second most economically advantageous tender could modify its tender after the period for submitting tenders had expired in order to be awarded Lot 1 (‘the decision of 14 January 2021’).

20The Complaints Board justified that decision by stating that that tenderer had had the opportunity to amend an essential term of its tender, namely the price, in a way which is favourable to the contracting authority and gives the tenderer the opportunity to improve its tender in order to be awarded one of the lots of the contract. Such an approach is contrary to the ban on negotiations, which derives from the principles of equal treatment and transparency.

21On 9 July 2021, SKI brought an action before the Retten i Glostrup (Glostrup District Court, Denmark) against the decision of 14 January 2021.

22On 7 December 2021, that action was remitted to the Østre Landsret (High Court of Eastern Denmark, Denmark), sitting as the court of first instance, which is the referring court.

23The referring court considers that, while the Court has previously clarified the scope of the ban on negotiation resulting from Article 18 of Directive 2014/24 as regards reservations contained in a tender, subcontracting and the possibility of taking additional information into account, the Court has not yet clarified whether, in an open procedure for a contract divided into lots in accordance with Article 46 of that directive, the ban on negotiation precludes a tenderer which has not submitted the most economically advantageous tender from being awarded a lot on the condition that it accepts to deliver the supplies and perform the services forming the subject matter of the contract at the same price as that offered by the tenderer which submitted the most economically advantageous tender.

24In those circumstances, the Østre Landsret (High Court of Eastern Denmark) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:‘Do the principles of transparency and equal treatment in Article 18 of Directive 2014/24 and the consequent ban on negotiations preclude a tenderer who has submitted the second most economically advantageous tender in connection with an open procedure for separate lots (see Articles 27 and 46 of that directive) from being given the opportunity, after the deadline for submission of the tender has expired, and in accordance with the predetermined terms in the specifications, to supply the proposed services within a lot under the same terms as a tenderer who has submitted the most economically advantageous tender and who, therefore, is awarded another lot put out to tender at the same time?’

Admissibility of the request for a preliminary ruling

25The Court has repeatedly pointed out that the procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them and that the justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered, but rather that it is necessary for the effective resolution of a dispute (judgment of 9 January 2024, G. and Others (Appointment of judges to the ordinary courts in Poland), C‑181/21 and C‑269/21, EU:C:2024:1, paragraph 62 and the case-law cited). The Court has also held that it is clear from both the wording and the scheme of Article 267 TFEU that a national court or tribunal is not empowered to bring a matter before the Court by way of a request for a preliminary ruling unless a case is pending before it in which it is called upon to give a decision which is capable of taking account of the preliminary ruling (judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 46 and the case-law cited).

26In the present case, on 13 October 2023, the Court sent the referring court a request for information, asking it to clarify whether, despite the fact, referred to in BibMedia’s written observations, that the tendering procedure at issue was not resumed following the decision of 14 January 2021, but was replaced by a new tendering procedure, SKI retains, under Danish law, a legal interest to bring proceedings in the case in the main proceedings.

27On 27 November 2023, the referring court answered that request for information in the affirmative, referring in particular to Danish case-law on the legal interest to bring proceedings in administrative law.

28Since that court has explained that, under national law, there continues to be a legal interest in the resolution of the dispute in the main proceedings in which that court is called upon to give a decision which is capable of taking account of the preliminary ruling, the question asked is not hypothetical and must be regarded as admissible.

Consideration of the question referred

29By its question, the referring court asks, in essence, whether Article 18(1) of Directive 2014/24 must be interpreted as meaning that the principles of equal treatment and transparency set out in that provision preclude, in a procedure for the award of a public contract divided into lots, the tenderer which has submitted the second most economically advantageous tender from being awarded, in accordance with the terms set out in the procurement documents, a lot on the condition that that tenderer accepts to deliver the supplies and perform the services relating to that lot at the same price as that offered by the tenderer which submitted the most economically advantageous tender and which has therefore been awarded another, larger lot of that contract.

30The objective of the principle of equal treatment, set out in Article 18(1) of Directive 2014/24, is to encourage the development of healthy and effective competition between undertakings taking part in a public procurement procedure and lies at the very heart of the EU rules on public procurement procedures. In accordance with that principle, tenderers must be on an equal footing both when they formulate their tenders and when those tenders are being assessed by the contracting authority (see, to that effect, judgment of 3 June 2021, Rad Service and Others, C‑210/20, EU:C:2021:445, paragraph 43 and the case-law cited).

31The principle of transparency, also enshrined in Article 18(1), is intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. That principle requires that all the conditions and detailed rules of the award procedure 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, secondly, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the relevant contract (see, to that effect, judgment of 14 September 2017, Casertana Costruzioni, C‑223/16, EU:C:2017:685, paragraph 34 and the case-law cited).

32Those principles of equal treatment and of transparency preclude any negotiation between the contracting authority and a tenderer during a public procurement procedure, which means that, as a general rule, a tender cannot be amended after it has been submitted, whether at the request of the contracting authority or at the request of the tenderer (judgments of 14 September 2017, Casertana Costruzioni, C‑223/16, EU:C:2017:685, paragraph 35, and of 3 June 2021, Rad Service and Others, C‑210/20, EU:C:2021:445, paragraph 43).

33A method of awarding public contracts such as that set out in the tender specifications for the call for tenders at issue in the main proceedings, according to which the contract is divided into lots, the largest of which will be awarded to the tenderer which has submitted the most economically advantageous tender, while a lot of lower value will, with the aim of maintaining competition in the economic sector concerned, preferably be awarded to the tenderer which has submitted the second most economically advantageous tender, on the condition that it accepts to perform that lot at the price of the tenderer which submitted the most economically advantageous tender, does not contain any element of negotiation, within the meaning of the case-law cited above.

34In this respect, it should be noted that such a method for awarding public contracts guarantees, for the award of all lots, that the criterion of the lowest price is fulfilled, without the possibility for the contracting authority to derogate from that criterion or to ask a tenderer to amend its tender, since the contracting authority must base its decision on the prices offered before the expiry of the period for submitting tenders and to observe, throughout that procedure, the order of ranking resulting from those tenders.

35In such a public procurement procedure, it is the prices offered before the expiry of the period for submitting tenders which directly and definitively determine the ranking of tenderers. In that ranking, the tenderer which offered the lowest price takes first place and that tenderer’s price is that at which the entirety of the contract will be concluded.

36The opportunity, provided by the tender specifications to the tenderer submitting the second most economically advantageous tender, of being awarded one lot of the contract results solely, as is expressly stated in the contract documents, from the fact that it takes second place in the ranking resulting from the prices offered in the tenders.

37Whether use is made of that opportunity depends on the decision of that tenderer whether or not to accept to perform the lot in question at the price of the tenderer which submitted the most economically advantageous tender. That condition forms part of the detailed terms of the award procedure set out in the tender specifications. Where the tenderer which has submitted the second most economically advantageous tender does not agree to match that price, it falls to the tenderer which is third in the ranking resulting from the prices offered in the tenders to define its position on that point, and so on in the order of ranking of the tenders for as long as none of the tenderers agrees to match the price of the tender submitting the most economically advantageous tender. If all the tenderers ranked from second place to last place refuse to perform that lot at that price, the tenderer which submitted the most economically advantageous tender is to be awarded all of the lots of the contract.

38None of the decisions which may be taken by the tenderers ranked from second place to last place involves amending the tenders submitted prior to the expiry of the period prescribed for that purpose or negotiation with the contracting authority. No tenderer has the possibility of changing, by amending its tender or by any negotiation, its position in the ranking or the price at which the contract relating to a given lot will be concluded.

39It is apparent from the above considerations that a contract award procedure such as that at issue in the main proceedings comes, without breaching the principles of equal treatment and transparency, within the scenario referred to in Article 46 of Directive 2014/24, namely that in which a contracting authority decides to award a contract in the form of separate lots, specifying in the procurement documents whether a tender may be submitted for a single lot, for several lots or for all of the lots and indicating which objective and non-discriminatory criteria will be applied to determine the award of lots.

40In that respect, it is irrelevant that, in the present case, the procurement procedure is open, within the meaning of Article 27 of that directive, since the considerations set out in paragraphs 33 to 38 above may equally apply in restricted procedures, with the meaning of Article 28 of that directive, once the economic operators invited to submit a tender have submitted their respective tenders.

41In light of the foregoing considerations, the answer to the question referred is that Article 18(1) of Directive 2014/24 must be interpreted as meaning that the principles of equal treatment and transparency set out in that provision do not preclude, in a procedure for the award of a public contract divided into lots, the tenderer which has submitted the second most economically advantageous tender from being awarded, in accordance with the terms set out in the procurement documents, a lot on the condition that that tenderer accepts to deliver the supplies and perform the services relating to that lot at the same price as that offered by the tenderer which submitted the most economically advantageous tender and which has therefore been awarded another, larger lot of that contract.

Costs

42Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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: Article 18(1) 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/ECmust be interpreted as meaning that the principles of equal treatment and transparency set out in that provision do not preclude, in a procedure for the award of a public contract divided into lots, the tenderer which has submitted the second most economically advantageous tender from being awarded, in accordance with the terms set out in the procurement documents, a lot on the condition that that tenderer accepts to deliver the supplies and perform the services relating to that lot at the same price as that offered by the tenderer which submitted the most economically advantageous tender and which has therefore been awarded another, larger lot of that contract.