Fabricom (Law relating to undertakings) [2005] EUECJ C-21/03 (03 March 2005)

Fabricom (Law relating to undertakings) [2005] EUECJ C-21/03 (03 March 2005)

EU procurement directives preclude national rules that automatically exclude persons involved in preparatory work from participating in tenders without giving them the opportunity to prove that their experience does not distort competition. Such rules go beyond what is necessary to ensure equal treatment and effective competition. Contracting authorities cannot delay exclusion decisions until the end of the tender process if all relevant information is available, as this undermines the effectiveness of judicial remedies under EU law.

Citation
[2005] EUECJ C-21/03
Parties
Applicant: Fabricom SA; Respondent: Belgian State
Jurisdiction
European Union
Judgment Date
03 March 2005
Procedural Posture
Preliminary Reference (joined Cases C 21/03 and C 34/03) / Judgment of the Court of Justice of the European Union
Outcome
References answered; national rules precluding participation without opportunity to prove absence of competitive distortion are precluded by EU law.
Legal Topics
Equal Treatment of Tenderers, Proportionality, Judicial Review in Procurement, Freedom of Trade and Industry, Right to Property, Conflict of Interest in Public Contracts
European Union Law Public Procurement Equal Treatment of Tenderers Proportionality Judicial Review in Procurement Freedom of Trade and Industry Right to Property Conflict of Interest in Public Contracts

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Parties

Fabricom SA

Applicant

Belgian State

Respondent

Procedural Posture

Preliminary Reference (joined Cases C 21/03 and C 34/03) / Judgment of the Court of Justice of the European Union

Legal Issues

  1. 1 Whether EU procurement directives preclude national rules that automatically exclude persons involved in preparatory work from tendering without opportunity to prove no competitive distortion
  2. 2 Whether such exclusion rules may apply only to private undertakings or those providing services for consideration
  3. 3 Whether contracting authorities may delay decisions on exclusion of connected undertakings until the end of the tender process

Ratio Decidendi

EU procurement directives preclude national rules that automatically exclude persons involved in preparatory work from participating in tenders without giving them the opportunity to prove that their experience does not distort competition. Such rules go beyond what is necessary to ensure equal treatment and effective competition. Contracting authorities cannot delay exclusion decisions until the end of the tender process if all relevant information is available, as this undermines the effectiveness of judicial remedies under EU law.

Court Disposition

References answered; national rules precluding participation without opportunity to prove absence of competitive distortion are precluded by EU law.

Orders

  • National rules excluding persons involved in preparatory work from tendering without opportunity to prove no competitive distortion are incompatible with EU procurement directives.
  • Contracting authorities may not delay exclusion decisions until the end of the tender process if all information is available.