Limitation des motifs d'exclusion à ce qui est nécessaire pour prévenir les risques d'ententes entre candidats

Limitation of the grounds for exclusion to what is necessary to prevent the risk of agreements between candidates

by gmorales on 4 January 2016 | Category: Public markets
Limitation des motifs d'exclusion à ce qui est nécessaire pour prévenir les risques d'ententes entre candidats Limitation des motifs d'exclusion à ce qui est nécessaire pour prévenir les risques d'ententes entre candidats

Limitation des motifs d'exclusion à ce qui est nécessaire pour prévenir les risques d'ententes entre candidats CJEU October 22, 2015, Impressa Edilux SRL, aff.C-425/14

Rule 1: The grounds for exclusion from procurement procedures should be limited to what is necessary to prevent collusive behavior between candidates

In this case, the Court of Justice of the European Union considers that an automatic exclusion from tendering procedures on the grounds of lack of production in support of the offer of a declaration of acceptance of a legality convention infringes the principle of proportionality.

For the Court, the requirement for a candidate for a public contract to declare, on the one hand, the absence of a control or association report with other candidates and, on the other hand, the absence of agreement with other candidates in the tendering procedure, with the consequence that, in the absence of such a statement in support of his application or offer, he is automatically excluded from this procedure, infringes the principle of proportionality.

Rule n ° 2: Prohibition of automatic rejection of bids from related companies by a control or association report.

According to the case-law of the Court, the automatic exclusion of candidates or tenderers who are in such a relationship with other candidates or tenderers goes beyond what is necessary to prevent collusive behavior and thereby to ensure the application of the principle of equal treatment and the respect of the obligation of transparency.

Such an automatic exclusion constitutes an irrebuttable presumption of reciprocal interference in the respective offers, for the same market, of undertakings bound by a control or association report. It precludes the possibility for those candidates or tenderers to demonstrate the independence of their tenders and is therefore contrary to the Union's interest in ensuring the widest possible participation of tenderers in a call for tenders ( see, to that effect, Assitur, C 538/07, EU: C: 2009: 317, paragraphs 28 to 30, and Serrantoni and Consorzio stabile edili, C 376/08, EU: C: 2009: 808, paragraph 39; and 40).
JUDGMENT OF THE COURT (Tenth Chamber)
October 22, 2015 (*)
(Reference for a preliminary ruling - Public contracts - Directive 2004/18 / EC - Grounds for exclusion from participation in a call for tenders - Contract not exceeding the threshold of application of that directive - Basic rules of the FEU Treaty - Declaration of acceptance of a legality convention relating to the fight against criminal activities - Exclusion for failure to file such a declaration - Admissibility - Proportionality
In Case C 425/14,

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1 The reference for a preliminary ruling concerns the interpretation of Article 45 of Directive 2004/18 / EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts. supplies and services (OJ L 134, p.114), as amended by Commission Regulation (EU) No 1251/2011 of 30 November 2011 (OJ L 319, p. "Directive 2004/18").
2 This application was made in the context of a dispute between Impresa Edilux Srl (hereinafter 'Edilux'), acting as agent of the temporary association of companies formed between itself and Società Italiana Costruzioni e Forniture Srl (SICEF), as well as the latter at the Assessorato Beni Culturali e Identità Siciliana - Servizio Soprintendenza Provincia di Trapani (Directorate of Cultural Heritage and Sicilian Identity, Committee of the Province of Trapani), at the Assessorato ai Beni Culturali e dell'Identità Siciliana (Directorate of Cultural Heritage and Sicilian Identity), UREGA - Sezione Provinciale di Trapani (UREGA, Trapani Province) and the Assessorato delle Infrastrutture e della Mobilità della Regione Siciliana (Directorate for Infrastructure and Mobility of the Region of Sicily) (hereinafter together, the "contracting authority at issue in the main proceedings") concerning the exclusion of the latter from the participation of Edilux and SICEF in a public procurement procedure for failing to submit, with their tender, a declaration of acceptance of the clauses contained in a legality agreement.
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The questions referred
Introductory remarks
18 The questions referred by the national court concern the interpretation of Article 45 of Directive 2004/18. However, the referring court finds in its reference for a preliminary ruling that the public works contract at issue in the main proceedings is worth less than the relevant threshold of application of that directive, namely that laid down in Article 7. (c) thereof.
19 It should be recalled that the special and stringent procedures provided for by the Union Directives on the coordination of public procurement procedures apply only to contracts whose value exceeds the threshold laid down expressly in each of those directives. Thus, the rules laid down in those directives do not apply to contracts whose value does not reach the threshold fixed by them (see Enterprise Focused Solutions judgment, C 278/14, EU: C: 2015: 228, point 15 and the case law cited). Accordingly, Article 45 of Directive 2004/18 does not apply in the context of the dispute in the main proceedings.
20 However, it follows from the settled case-law of the Court that the fact that the referring court has referred a question for a preliminary ruling by referring only to certain provisions of European Union law does not preclude the Court from providing it with all the elements of interpretation that may be useful in the judgment of the case before it, whether or not it referred to it in the statement of its questions. In this respect, it is for the Court of Justice to extract from the totality of the information provided by the national court, and in particular from the statement of reasons for the order for reference, the elements of European Union law which require an interpretation in the light of the subject-matter of the dispute (see, inter alia, the City of Ottignies-Louvain-la-Neuve and Others judgment, C 225/13, EU: C: 2014: 245, paragraph 30 and the case-law cited).
21 According to well-established case-law, the award of contracts which, in view of their value, do not fall within the scope of the Union directives coordinating the procedures for the award of public contracts is nevertheless subject to the fundamental rules and the general principles of the TFEU, in particular the principles of equal treatment and non-discrimination on grounds of nationality and the resulting obligation of transparency, provided that these markets have a cross-border interest certain objective criteria (see, to that effect, Enterprise Focused Solutions judgment, C 278/14, EU: C: 2015: 228, paragraph 16 and the case-law cited).
22 In that regard, the national court accepts that the principles of Union law apply to the dispute before it and, in that context, finds that there is a certain cross-border interest since the provisions of the The specific rules of the procedure relating to the contract which are the subject of this dispute concern the participation of undertakings other than those established in Italy.
23 In those circumstances, it must be held that the first question concerns the interpretation of the fundamental rules and general principles of the Treaty mentioned in paragraph 21 of this judgment.
24 On the other hand, there is no need to answer the second question. As is apparent from the reasoning in the order for reference, that question relates specifically to the third subparagraph of Article 45 (1) of Directive 2004/18, which provides for a derogation for imperative general interest, to the obligation, referred to in the first subparagraph of the same paragraph, for a contracting authority to exclude from participation in a public contract any candidate or tenderer who has been the subject of a sentence pronounced by a final judgment for one or more of the reasons listed in this provision.
On the first question
25 The first question must therefore be understood as essentially bearing on whether the fundamental rules and general principles of the Treaty, in particular the principles of equal treatment and non-discrimination and the obligation to resulting transparency, must be interpreted as precluding a provision of national law under which a contracting authority may provide that a candidate or tenderer is excluded from an appeal procedure. tenders relating to a public contract for not having filed, with its offer, a written acceptance of the commitments and declarations contained in a legality agreement, such as that at issue in the main proceedings, the objective of which is to combat the infiltration of organized crime in the public procurement sector.
26 The Court has already held that the Member States must be given a certain margin of discretion in order to adopt measures designed to ensure respect for the principle of equal treatment and the obligation of transparency, which the contracting authorities in any procurement procedure. In fact, each Member State is best able to identify, in the light of historical, legal, economic or social considerations specific to it, the situations conducive to the appearance of behavior likely to lead to breaches of that principle and that obligation (see, to that effect, Serrantoni and Consorzio stabile edili, C 376/08, EU: C: 2009: 808, paragraphs 31 and 32 and the case-law cited).
27 According to the national court, a legality agreement such as that at issue in the main proceedings seeks to prevent and combat the phenomenon of infiltration, especially in the public procurement sector, of organized crime, which is well established in certain regions. from southern Italy. It also serves to protect the principles of competition and transparency that underpin the Italian and Union rules on public procurement.
28 It is clear that, by opposing criminal activity and distortions of competition in the public procurement sector, a measure such as the obligation to declare the acceptance of this type of legality to enhance equal treatment and transparency in the award of contracts. Moreover, to the extent that this obligation is incumbent upon any candidate or assignee without distinction, it does not conflict with the principle of non-discrimination.
29 However, in accordance with the principle of proportionality, which constitutes a general principle of Union law, such a measure must not go beyond what is necessary in order to achieve the objective pursued (see, to that effect, Serrantoni and Consorzio stabile edili, C 376/08, EU: C: 2009: 808, paragraph 33 and the case-law cited).
30 In that regard, it is first necessary to reject Edilux's and SICEF's argument that a declaration of acceptance of certain undertakings constitutes an ineffective means of combating the infiltration of organized crime where compliance with these commitments can only be verified after the award of the relevant contract.
31 The national court states that, in order to be mandatory, the clauses of the legality agreements must first be accepted as a condition for admission to the procurement procedure and that, if only non-compliance with of these clauses during the execution phase was punishable, the maximum anticipation effect of the level of protection and deterrence would be reduced to nothing. In those circumstances, given the margin of appreciation accorded to the Member States and reiterated in paragraph 26 of this judgment, it can not be considered that the obligation to declare the acceptance of the commitments contained in a legality agreement from the outset participation in a call for tenders for the award of a contract goes beyond what is necessary to achieve the desired objectives.
32 In the second place, as regards the content of the legality agreement at issue in the main proceedings, the commitments which candidates or tenderers must make pursuant to points (a) to (d) thereof consist, for the most part, of , to indicate the progress of work, the subject, the amount and the beneficiaries of the subcontracting and derivative contracts and the procedures for the selection of contractors, to report any attempt to disrupt, irregular or distortion in the conduct of the tender procedure and during the performance of the contract, to cooperate with the police force, denouncing any attempt at extortion, intimidation or criminal influence, as well as to include the same clauses in subcontracts. These commitments overlap with the declarations contained in this Convention, under (h) to (j).
33 With regard to a statement such as that in point (g) of the legality agreement at issue in the main proceedings, according to which the participant declares that he has not concluded and will not conclude any agreement with other participants in the tendering procedure to restrict or avoid competition, it is limited to the objective of protecting the principles of competition and transparency in public procurement procedures.
34 Such commitments and declarations relate to the fair behavior of the candidate or tenderer towards the contracting authority at issue in the main proceedings and to cooperation with the police. They do not go beyond what is necessary to fight against the infiltration of organized crime in the public procurement sector.
35 However, point (e) of the legality agreement at issue in the main proceedings includes a statement that the participant is not in a control or association relationship with other competitors.
36 As the European Commission pointed out in its written observations, it follows from the case-law of the Court that the automatic exclusion of candidates or tenderers who are in such a relationship with other candidates or tenderers is beyond what is necessary to prevent collusive behavior and, therefore, to ensure the application of the principle of equal treatment and the respect of the obligation of transparency. Such an automatic exclusion constitutes an irrebuttable presumption of reciprocal interference in the respective offers, for the same market, of undertakings bound by a control or association report. It precludes the possibility for those candidates or tenderers to demonstrate the independence of their tenders and is therefore contrary to the Union's interest in ensuring the widest possible participation of tenderers in a call for tenders ( see, to that effect, Assitur, C 538/07, EU: C: 2009: 317, paragraphs 28 to 30, and Serrantoni and Consorzio stabile edili, C 376/08, EU: C: 2009: 808, paragraph 39; and 40).
37 Audit item e) also contains a statement that the participant has not entered into and will not enter into an agreement with other participants in the bidding process. By thus excluding any agreement between the participants, including agreements not likely to restrict competition, such a statement goes beyond what is necessary to safeguard the principle of competition in the area of public procurement. As a result, such a statement differs from that in point (g) of the legality agreement at issue in the main proceedings.
38 It follows that an obligation on a public market participant to declare, on the one hand, the absence of a control or association report with other competitors and, on the other hand, the absence of in agreement with other participants in the tendering procedure, with the consequence that, in the absence of such a declaration, it is automatically excluded from this procedure, infringes the principle of proportionality.
39 Those considerations must also apply in respect of the statement in point (f) of the legality agreement at issue in the main proceedings, according to which the participant states that he will not subcontract any type of tasks to his other companies participating in the call for tenders and is aware that, if not, these subcontracts will not be allowed. Such a declaration implies an irrebuttable presumption that the possible subcontracting by the successful tenderer, after the award of the contract, to another participant in the same invitation to tender would result from collusion between the two undertakings concerned. , without giving them the opportunity to demonstrate the opposite. Thus, such a statement goes beyond what is necessary to prevent collusive behavior.
40 Moreover, in view of the objective of preventing and combating the phenomenon of infiltration of organized crime, any possible pressure placed on the successful tenderer of a contract by another undertaking which participated in the appeal of tenders, with a view to subcontracting the performance of this contract to the latter, should be communicated to the contracting authority or, where appropriate, reported to the police force in accordance with points (b), (c), (g), (h) and (i) the legality agreement at issue in the main proceedings.
41 In the light of the foregoing, the answer to the first question must be that the fundamental rules and general principles of the Treaty, in particular the principles of equal treatment and non-discrimination and the obligation of transparency which from this, must be interpreted as not precluding a provision of national law under which a contracting authority may provide that a candidate or tenderer is automatically excluded from an appeal procedure. on a public contract for failing to submit, with its offer, a written acceptance of the commitments and declarations contained in a legality agreement, such as that at issue in the main proceedings, the objective of which is to combat infiltration organized crime in the public procurement sector. However, insofar as this agreement contains declarations that the candidate or tenderer is not in a control or association report with other candidates or tenderers, he has not concluded and will not conclude any agreement with other participants in the tendering procedure and will not subcontract any type of tasks to other companies participating in this procedure, the absence of such declarations can not result in automatic exclusion. the candidate or tenderer of the said procedure.
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On those grounds, the Court (Tenth Chamber) hereby rules:
The fundamental rules and general principles of the TFEU, in particular the principles of equal treatment and non-discrimination and the resulting obligation of transparency, must be interpreted in the sense that they do not oppose a provision under national law under which a contracting authority may provide that a candidate or tenderer is automatically excluded from a tendering procedure relating to a public contract for not having lodged, with his tender, a written acceptance of the commitments and declarations contained in a legality agreement, such as that at issue in the main proceedings, the objective of which is to combat the infiltration of organized crime into the public procurement sector. However, insofar as this agreement contains declarations that the candidate or tenderer is not in a control or association report with other candidates or tenderers, he has not concluded and will not conclude any agreement with other participants in the tendering procedure and will not subcontract any type of tasks to other companies participating in this procedure, the absence of such declarations can not result in automatic exclusion. the candidate or tenderer of the said procedure.