December’s case digest includes an ECJ ruling on the compatibility with the EU rules of national law governing participation in procurement procedures, an Advocate General’s opinion on the interpretation of award criteria under Directive 2004/18, and the European Ombudsman rejecting a further complaint about the CJEU’s inclusion of an educational requirement in its tenders for translators.
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ECJ ruling on eligibility of public hospital to bid for contracts (Azienda Ospedaliero-Universitaria di Careggi-Firenze v Data Medical Service Srl (Case C‑568/13)).
The ECJ has handed down a ruling on a reference from an Italian court on whether an Italian law which excludes health care establishments from taking part in tendering procedures was compatible with the EU procurement rules. The ECJ ruled that the applicable EU rules (Directive 92/50) precluded national legislation that excluded a public hospital, with the status of a public economic entity, from participating in a procurement procedure, if and in so far as the hospital is authorised to operate on the market in accordance with its institutional and statutory objectives.
The ECJ also ruled that such a public hospital could not be precluded from participation solely on the grounds that it is able to submit a tender that cannot be matched by any competitors as a result of the public funding that it receives. However, in considering whether the bid submitted is abnormally low, the contracting authority may take into consideration the existence of the public funding which the entity receives when considering whether to reject the tender.
ECJ ruling on legality of decision to abandon procurement process and on scope of review of procurement decisions (Croce Amica One Italia Srl v Azienda Regionale Emergenza Urgenza (Case C‑440/13)).
The ECJ has handed down a ruling on a reference from an Italian court asking about the right of a contracting authority not to proceed with a tender and the scope of judicial review. The ECJ ruled that Directive 2004/18 does not preclude a contracting authority from deciding not to award a contract, for which a procurement procedure has been held, and not to proceed with the definitive award of the contract to the sole tenderer remaining in contention. Furthermore, a decision by a contracting authority not to award a public contract need not be limited to exceptional cases or must not necessarily be based on serious grounds.
The ECJ also ruled that reviews under Directive 89/665 (the Remedies Directive) constitute a review of the lawfulness of decisions adopted by contracting authorities, the purpose of which is to ensure that the EU public procurement rules (or national rules implementing them) are complied with. It is not possible for such review to be confined to a simple examination of whether the contracting authorities’ decisions are arbitrary. However, that does not mean that it is not open to the national legislature to grant the competent national courts and tribunals the power to review whether a measure was expedient.
ECJ rule that direct award of emergency ambulance services does not infringe procurement rules (Azienda sanitaria locale No 5 ‘Spezzino and Others v San Lorenzo società cooperative sociale and Others (Case C-113/13)).
The ECJ has handed down its ruling on a preliminary reference from an Italian court, concluding that national legislation that required local authorities to entrust emergency ambulance services on a preferential basis and by direct award to voluntary associations may be compatible with the Treaty on the Functioning of the European Union. However, the system must actually contribute to the pursuit of the objectives of the good of the community and budgetary efficiency.
This ruling reflects current thinking; emergency ambulance services are excluded from the new procurement directive (2014/24/EU), though patient transport services fall within the regime.
Advocate General’s opinion on interpretation of award criteria under Directive 2004/18 (Ambisig, Advocate General’s opinion (Case C-601/13)).
The Advocate General has given an opinion on a reference for a preliminary ruling from the Portuguese national court on the question whether Directive 2004/18 allows the use of award criteria, in a tender for the provision of services of an intellectual nature, that evaluate the teams specifically put forward by the tenderers for the performance of the tendered contract, having regard to the composition of the respective teams, their proven experience and analysis of their CVs.
He considers that Directive 2014/18 does not preclude, in some circumstances, the use of such award criteria, provided that the specific characteristics and qualities of personnel working within the team are a key component of the economic value of the submitted bid.
This ruling is another example of a shift away from the rigid distinction between selection and award criteria which will be further relaxed in the new procurement rules. Article 67(2)(b) of Direction 2014/24/EU permits contracting authorities to consider, at award stage the “organisation, qualification and experience of staff assigned to performing the contract, where the quality of the staff assigned can have a significant impact on the level of performance of the contract” (for more information, see Practice note, Evaluation of tenders; Requirement to distinguish between selection and award criteria).
Advocate General’s opinion on proper defendant in challenge to Eulex Kosovo procurement procedure (Elitaliana v Eulex Kosovo, Advocate General’s opinion (Case C-439/13 P)).
The Advocate General has handed down his opinion on an appeal by Elitaliana SpA against a General Court order dismissing its action against a procurement procedure conducted by the Eulex Mission in Kosovo. The Advocate General considered that the General Court did not err in finding that Eulex Kosovo, a joint mission of the European Council and Commission without separate legal personality, cannot be considered a body, office or agency of the European Union within the meaning of the first paragraph of Article 263 of the TFEU. Further, there was no excusable error on the part of Elitaliana, the unsuccessful tenderer, in bringing its action against Eulex Kosovo.
Ombudsman rejects another complaint about Court of Justice’s inclusion of educational requirement in tenders for translators (Decision of the European Ombudsman closing the inquiry into complaint 777/2013/CK against the Court of Justice of the European Union).
The European Ombudsman has published a decision finding that there was no maladministration by the Court of Justice of the European Union in its conduct of a call for tenders for the conclusion of framework contracts for the translation of legal texts from certain official EU languages into Greek.
The Ombudsman’s reasoning in this decision is similar to that applied recently when rejecting a similar complaint in relation to a tender by the CJEU for Italian translation services (see Legal update, Ombudsman finds no maladministration in Court of Justice’s conduct of call for tender).