Luxone (Public procurement - Exclusion of a tenderer from the tender procedure - Judgment) [2024] EUECJ C-403/23 (26 September 2024)

Luxone (Public procurement - Exclusion of a tenderer from the tender procedure - Judgment) [2024] EUECJ C-403/23 (26 September 2024)

Articles 47(3) and 48(4) of Directive 2004/18/EC, read with the principle of proportionality, preclude national legislation that excludes the possibility for original members of a temporary group of tendering undertakings to withdraw from that group when the tender validity period elapses and the contracting authority seeks to extend it, provided the remaining members meet requirements and no competitive disadvantage arises. The principles of proportionality, equal treatment, and transparency preclude national legislation providing for automatic forfeiture of provisional security upon exclusion from a procurement procedure, even if the contract is not awarded.

Citation
[2024] EUECJ C-403/23
Parties
Applicant: Luxone Srl; Applicant: Iren Smart Solutions SpA; Applicant: Sofein SpA (formerly Gi One SpA); Respondent: Consip SpA
Jurisdiction
European Union
Judgment Date
26 September 2024
Procedural Posture
Preliminary Ruling (joined Cases C 403/23 and C 404/23) / Judgment of the Court of Justice of the European Union (eighth Chamber)
Outcome
Preliminary ruling: National legislation excluding withdrawal of group members and providing for automatic forfeiture of provisional security is precluded by Directive 2004/18/EC and EU law principles, subject to specified conditions.
Legal Topics
Directive 2004/18/ec, Public Procurement Procedures, Temporary Group of Undertakings, Principle of Proportionality, Equal Treatment, Forfeiture of Provisional Security, Freedom to Conduct a Business, Competition Law
European Union Law Public Procurement Directive 2004/18/ec Public Procurement Procedures Temporary Group of Undertakings Principle of Proportionality Equal Treatment Forfeiture of Provisional Security +2 more

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Parties

Luxone Srl

Applicant

Iren Smart Solutions SpA

Applicant

Sofein SpA (formerly Gi One SpA)

Applicant

Consip SpA

Respondent

Procedural Posture

Preliminary Ruling (joined Cases C 403/23 and C 404/23) / Judgment of the Court of Justice of the European Union (eighth Chamber)

Legal Issues

  1. 1 Whether EU law precludes national rules prohibiting withdrawal of members from a temporary group of undertakings after expiry of tender validity period when the contracting authority seeks to extend the period.
  2. 2 Whether EU law precludes national rules providing for automatic forfeiture of provisional security upon exclusion from a procurement procedure, even if the contract is not awarded.

Ratio Decidendi

Articles 47(3) and 48(4) of Directive 2004/18/EC, read with the principle of proportionality, preclude national legislation that excludes the possibility for original members of a temporary group of tendering undertakings to withdraw from that group when the tender validity period elapses and the contracting authority seeks to extend it, provided the remaining members meet requirements and no competitive disadvantage arises. The principles of proportionality, equal treatment, and transparency preclude national legislation providing for automatic forfeiture of provisional security upon exclusion from a procurement procedure, even if the contract is not awarded.

Court Disposition

Preliminary ruling: National legislation excluding withdrawal of group members and providing for automatic forfeiture of provisional security is precluded by Directive 2004/18/EC and EU law principles, subject to specified conditions.

Orders

  • Article 47(3) and Article 48(4) of Directive 2004/18/EC preclude national legislation excluding withdrawal of original members of a temporary group of undertakings when the tender validity period elapses and extension is sought, if remaining members meet requirements and no competitive disadvantage arises.
  • Principles of proportionality, equal treatment, and transparency preclude national legislation providing for automatic forfeiture of provisional security upon exclusion from a procurement procedure, even if the contract is not awarded.