Un candidat ayant commis une faute professionnelle grave n’a pas à être automatiquement exclu de la procédure

A candidate who has committed a serious professional misconduct does not automatically have to be excluded from the procedure

by gmorales on December 14, 2016 | Category: Public markets
Un candidat ayant commis une faute professionnelle grave n’a pas à être automatiquement exclu de la procédure Un candidat ayant commis une faute professionnelle grave n’a pas à être automatiquement exclu de la procédure

CJEU 14 December 2016, Connexxion Taxi Services BV v. Dutch State and Others, aff. C-171/15

The Ministry of Health of the Netherlands has launched a procedure for awarding a contract for transport services. The consultation documents provided for reasons for exclusion and required candidates to complete a declaration stating in particular that neither the company nor one of its officers made a serious mistake in the practice of his profession. The Department informed a candidate that his offer was ranked second behind a business association to which he intended to award the contract. A few weeks after this decision, the Dutch competition authority fined two of the companies in the association for violating the national competition law. The Ministry nevertheless decided to maintain its decision to award the contract to the said association of companies. The second ranked candidate then initiated a procedure to request a ban on this award decision. The Supreme Court of the Netherlands decided to refer several questions to the CJEU for a preliminary ruling. The opportunity for it to provide clarification on exclusions, under the former Markets Directive.

Rule 1: The principle of proportionality may allow a contracting authority not to exclude a candidate who has committed a serious professional misconduct

The Department considered that the misconduct was a serious professional misconduct, but maintained its decision to award the contract to the association on the grounds that disqualification on that basis would be disproportionate. The Supreme Court asks the CJEU whether EU law precludes national law from requiring a contracting authority to examine, in accordance with the principle of proportionality, whether it is indeed necessary to exclude a bidder who has committed a serious professional misconduct. In this respect, the CJEU indicates that the application of the exclusion cases referred to in Article 45 (2) of Directive 2004/18 is left to the discretion of the Member States and that they must specify the conditions for application of these provisions in their national law. It points out that the Netherlands legislation has not specified the conditions for the application of the above-mentioned exclusion cases, but has delegated the exercise of that right to the contracting authorities by giving them the possibility of declaring those causes of exclusion applicable to a procedure. . Moreover, that regulation requires the contracting authority which has established the existence of professional misconduct to examine, in accordance with the principle of proportionality, whether it is indeed necessary to exclude the candidate. The CJEU considers that this regulation is in conformity with the law of the Union which does not preclude national rules [...] from requiring a contracting authority to examine, in accordance with the principle of proportionality, whether it is indeed necessary to exclude a candidate from a public contract who has committed a serious professional misconduct ".

Rule 2: A contract can not be awarded to a candidate who has committed a serious professional misconduct if the documents of the consultation provided for an automatic exclusion in this case

In the second question, the CJEU was asked whether a contracting authority could award a public contract to a candidate who had been guilty of serious misconduct on the grounds that its exclusion would be contrary to the principle of proportionality, whereas the documents of the consultation provided for an automatic exclusion in this case. The CJEU firstly states that the contracting authority may decide that serious professional misconduct must lead to the automatic rejection of the tender, provided that the principle of proportionality is observed when assessing the seriousness of the tender. fault. However, it points out that the contracting authority must strictly observe the criteria which it has set itself and that the principles of equal treatment and transparency of procedures preclude a contracting authority from deciding to award a contract public to a candidate who committed a serious professional misconduct while the documents of the consultation provided that such a fault necessarily led to his exclusion.


JUDGMENT OF THE COURT (Fourth Chamber)

December 14, 2016 (*)

" Reference for a preliminary ruling - Public service contracts - Directive 2004/18 / EC - Article 45 (2) - Personal situation of the candidate or tenderer - Optional grounds for exclusion - Serious professional misconduct - National legislation providing for a case-by-case examination , applying the principle of proportionality - Decisions of the contracting authorities - Directive 89/665 / EEC - Judicial review

In Case C-171/15,

REFERENCE for a preliminary ruling under Article 267 TFEU from the Hoge Raad der Nederlanden (Supreme Court of the Netherlands), made by decision of 27 March 2015, received at the Court on 15 April 2015, in the the procedure

Connexxion Taxi Services BV

against

Staat der Nederlanden - Ministerie van Volksgezondheid, Welzijn in Sport,

Transvision BV,

Rotterdamse Mobiliteit Central RMC BV,

Zorgvervoercentrale Nederland BV,

THE COURT (Fourth Chamber),

composed of Mr T. von Danwitz, President of the Chamber, MM. E. Juhász (rapporteur), C. Vajda, Mme K. Jürimäe and M. Lycourgos, Judges,

Advocate General: Mr Campos Sánchez-Bordona,

clerk: Mme C. Strömholm, Director,

having regard to the written procedure and following the hearing on 27 April 2016,

considering the comments submitted:

  • for Connexxion Taxi Services BV, by Me J. van Nouhuys, advocaat,
  • for Transvision BV, Rotterdamse Mobiliteit Central RMC BV and Zorgvervoercentrale Nederland BV, by Mes J. P. Heering and P. Heemskerk, advocaten,
  • for the Netherlands Government, by Mmy H. Mr Stergiou, Mr K. Bulterman and Mr A. M. de Ree and by J. Langer, acting as Agents,
  • for the Italian Government, by Mme G. Palmieri, acting as Agent, assisted by M.es S. Varone and F. Di Matteo, avvocati dello Stato,
  • for the European Commission, by MM. A. Tokár and S. Noë, acting as Agents,

after hearing the Opinion of the Advocate General at the hearing on 30 June 2016,

makes the present

Stop

1. The reference for a preliminary ruling concerns the interpretation of the provisions of Article 45 (2) of Directive 2004/18 / EC of the European Parliament and of the Council of 31 March 2004 on the coordination of the award of public works, supply and service contracts (OJ 2004 L 134, p.114) and the scope of the judicial review of the decisions of the contracting authorities.

2. This application was made in the context of a dispute between Connexxion Taxi Services BV ('Connexxion') and Staat der Nederlanden - Ministerie van Volksgezondheid, Welzijn en Sport) (Netherlands Government - Ministry of Health, Ministry of Wellness and Sports, Netherlands, hereinafter referred to as the "Ministry") and to the association of companies consisting of Transvision BV, Rotterdamse Mobiliteit Centrale RMC BV and Zorgvervoercentrale Nederland BV (hereinafter together the "business association"), concerning the regularity of the Department's decision to award a public service contract to this business association.

The legal framework

Union law

3. Recital 2 of Directive 2004/18 states:

" Procurement in the Member States on behalf of the State, local authorities and other bodies governed by public law must respect the principles of the Treaty, in particular the principles of the free movement of goods, freedom of establishment and freedom to provide services, as well as the principles deriving from them, such as equal treatment, non-discrimination, mutual recognition, proportionality and transparency. However, in the case of public procurement exceeding a certain amount, it is recommended that provisions be drawn up for Community coordination of national procurement procedures based on these principles so as to ensure their effects and their effectiveness. effective competition for public contracts. Therefore, these coordination provisions should be interpreted in accordance with the above-mentioned rules and principles as well as with the other rules of the Treaty. "

4. Article 2 of that directive, entitled 'Principles of awarding contracts', provides:

" The contracting authorities treat economic operators on an equal footing in a non-discriminatory manner and act with transparency. "

5. Under Title II, Section 2 of Chapter VII of that Directive is devoted to 'Criteria for qualitative selection'. It includes Article 45, entitled "Personal situation of the candidate or tenderer". Paragraph 1 of this article lists the causes of mandatory exclusion of the candidate or tenderer from a contract. Paragraph 2 of that Article lists the optional grounds for exclusion from a market and reads as follows:

" Can be excluded from participation in the market, any economic operator:

[...]

(d) they have been guilty of grave professional misconduct proven by any means which the contracting authorities can justify;

[...]

Member States shall specify, in accordance with their national law and in compliance with Community law, the conditions for the application of this paragraph. "

6. Annex VII A to the Directive, entitled 'Information to be included in the notices for public contracts', refers, in point 17, to 'Selection criteria concerning the personal situation of economic operators'. which may lead to the exclusion of the latter and the required information proving that they do not fall within the circumstances justifying the exclusion [...] ".

7. Under the heading "Scope and accessibility of review procedures", Article 1st of Council Directive 89/665 / EEC of 21 December 1989 on the coordination of laws, regulations and administrative provisions relating to the application of the review procedures in respect of the award of public supply contracts and public works contracts (OJ 1989, L 395, p.33), as amended by Directive 2007/66 / EC of the European Parliament and of the Council of 11 December 2007 (OJ 2007 L 335, p.31), states in paragraph 1, third subparagraph :

" Member States shall, with regard to public procurement procedures falling within the scope of Directive 2004/18 / EC, take the necessary measures to ensure that decisions taken by contracting authorities may be effective and, in particular, as swift as possible, under the conditions set out in Articles 2 to 2f of this Directive, on the ground that those decisions have infringed Community law on public procurement or the national rules transposing that law. "

8. Directive 2004/18 was replaced by Directive 2014/24 / EU of the European Parliament and of the Council of 26 February 2014 on the award of public contracts and repealing Directive 2004/18 (OJ 2004 L 94, 65). In accordance with Article 91 of Directive 2014/24, the repeal of Directive 2004/18 took effect on 18 April 2016.

Dutch law

9. Directive 2004/18 was transposed into Dutch law by the Besluit houdende regels betreffende de procedes voor het gunnen van overheidsopdrachten voor werken, leveringen en diensten (decree laying down rules on procedures for the award of public works contracts, public works contracts and public works contracts). and Services), of 16 July 2005 (Stb., 2005: 408, hereinafter the "Order").

10. Article 45 (2) (d) of that directive has been transposed into Netherlands law by Article 45 (3) (d) of the decree, which states as follows:

" The contracting authority may exclude from the participation in the contract any economic operator:

[...]

(d) has been guilty of grave professional misconduct proven by a means which the contracting authority can justify.

[...] »

11. The explanatory memorandum to the order states, with regard to Article 45 (3):

" The question of whether and to what extent the exclusion should actually be applied must, in the light of the general considerations of the Directive, always receive a proportionate and non-discriminatory response. The term "proportionate" means that the exclusion and duration of this exclusion must be proportional to the gravity of the misconduct. Similarly, the exclusion and its duration must be proportional to the importance of the public contract. The setting of an absolute time limit in which an unlawful undertaking is, from the outset, excluded from any public procurement procedure by the State is therefore not in conformity with the principle of proportionality. This also means that it is always a tailor-made job, as the contracting authority must always check on a case-by-case basis for any public contract whether it should exclude, in a specific case, a given company (depending on the the nature and importance of the market, the nature and extent of the fraud and the steps the company has taken in the meantime) ".

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

12. On 10 July 2012, the Ministry launched a procurement procedure for the provision of "[a] supra-regional transport service for social and recreational purposes for persons with reduced mobility". This service is intended to allow people with reduced mobility to travel freely by granting them, for each year, a travel budget expressed in kilometers of taxis. This contract has a minimum duration of three years and nine months and represents an annual value of approximately 60,000,000 euros.

13. The procedure for awarding this contract is described in detail in a document entitled "Descriptive document", the paragraph entitled "Causes of Exclusion and Fitness Requirements", in particular, in section 3.1:

" The offer to which a reason for exclusion applies is rejected and its examination will not be continued (on the merits) ".

14. With regard to the causes of exclusion, this descriptive document refers to a "personal statement" that bidders must complete and attach to their bid in the form of a mandatory annex. The descriptive document states:

" In this respect, the tenderer declares, by the signature of the uniform personal procurement declaration, that none of the causes of exclusion (see points 2 and 3 of the declaration) is applicable to him. "

15. By this declaration, the tenderer states in particular that "neither his company nor an officer of his firm has committed any serious fault in the practice of his profession".

16. In particular, the procurement procedure for Connexxion and the business association was involved. By letter dated October 8, 2012, the Department informed Connexxion that its offer was in the second position and that it intended to award the contract to the business association.

17. On 20 November 2012, the Nederlandse Mededingingsautoriteit (Netherlands Competition Authority, Netherlands) fined two companies of that association and their executives in breach of Dutch law. on competition. The infringements found concerned agreements concluded with other undertakings during the periods 18 December 2007 to 27 August 2010 and from 17 April 2009 to the 1st March 2011. The Department considered this to be a serious professional misconduct, but maintained its decision to award the contract to the business association on the grounds that its exclusion on the basis of such a fault would be disproportionate.

18. In an interlocutory proceeding, Connexxion requested that the Department be prohibited from awarding the contract to the business association. By decision of 17 April 2013, the voorzieningenrechter te Den Haag (Judge for interim relief in The Hague, the Netherlands) granted that request, finding that the Ministry, after finding that there was serious professional misconduct, could not plus proceed to a proportionality test.

19. By decision of 3 September 2013, the Gerechtshof Den Haag (Court of Appeal, The Hague, The Netherlands) annulled the decision of the judge hearing the application for interim relief and authorized the Ministry to award the contract at issue in the main proceedings to the association by ruling that EU law does not prohibit a contracting authority from verifying, in accordance with the principle of proportionality, whether a tenderer to whom an optional ground of exclusion applies is to be excluded and that in carrying out such a proportionality test, the Ministry did not act in breach of the principles of equal treatment and transparency.

20. Connexxion brought an appeal on points of law against that decision before the Hoge Raad der Nederlanden (Supreme Court of the Netherlands).

21. The latter court observes that the main proceedings are characterized by the fact that, on the one hand, the contracting authority stated, in the terms of the invitation to tender, that the tender to which it applies a cause of exclusion would be rejected without examination on the merits and, secondly, that the decision to award the contract to a specific tenderer was nevertheless maintained after the contracting authority found that the tenderer had committed a serious professional misconduct within the meaning of the terms of the invitation to tender.

22. The referring court points out that Article 45 (3) of the decree fully reproduces the optional grounds for exclusion provided for in the first subparagraph of Article 45 (2) of Directive 2004/18. However, as regards the application of those grounds for exclusion, it is clear from the statement of reasons in relation to that provision of the order that, in view of the general principles of that directive, the question whether it is the exclusion process must always be assessed in a proportionate and non-discriminatory manner. Thus, contracting authorities should check on a case-by-case basis whether an undertaking should be excluded from the relevant public procurement procedure, taking into account the nature and importance of the contract, the nature and the importance of the contract. fraud and the measures the company has taken in the meantime.

23. Consequently, national law requires the contracting authority, after it has established that a serious professional misconduct has been committed, to decide, in accordance with the principle of proportionality, whether it is indeed necessary to proceed the exclusion of the perpetrator from this fault.

24. Accordingly, the obligation to carry out a proportionality test could be regarded as a relaxation, provided for by national law, of the criteria for the application of optional grounds of exclusion, within the meaning of the judgments of 9 February 2006, The Cascina and Others (C-226/04 and C-228/04, EU: C: 2006: 94, item 21), and of 10 July 2014, Consorzio Stabile Libor Lavori Pubblici (C-358/12, EU: C: 2014: 2063, paragraphs 35 and 36). In accordance with the second subparagraph of Article 45 (2) of Directive 2004/18, such relaxation, provided for by national law, should respect Union law and, in particular, the principles of equal treatment and transparency. In the case in the main proceedings, the Ministry, as the contracting authority, after ascertaining the fault committed, verified, in accordance with the principle of proportionality, whether the professional honesty and reliability of the business combination could be guarantees in the performance of the relevant contract. This association would have taken measures to that effect.

25. The national court notes that the Court has not yet answered the question whether Union law, in particular Article 45 (2) of that directive, against a contracting authority having to examine, under national law and in accordance with the principle of proportionality, whether it is indeed necessary to exclude a tenderer who has committed professional misconduct serious. Nor has the Court ruled on the question whether it is important in this regard that the contracting authority has provided in the conditions of the invitation to tender for the rejection without examination of the substance of any tender falling within a cause of exclusion. Moreover, the same directive does not contain any provision concerning the scope of the judicial review of decisions taken by the contracting authorities.

26. In those circumstances, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

"

  1. (a) Does EU law, in particular Article 45 (2) of Directive 2004/18, preclude national law from requiring a contracting authority to examine, in accordance with the principle of proportionality, if it is indeed necessary to exclude a tenderer who has committed a serious professional misconduct (b) Is it relevant, in this respect, that the contracting authority has provided, in the circumstances of the call for tenders, that an offer to which a cause of exclusion applies is rejected and that its examination will not be continued on the merits?
  2.  If the first question under (a) is answered in the negative, does the Union's law preclude the national court from applying, in accordance with the principle of proportionality, a full control of the assessment made by the contracting authority in the present case, but merely verifies (marginally) whether the contracting authority has reasonably decided not to exclude a tenderer even if he has guilty of grave professional misconduct within the meaning of the first subparagraph of Article 45 (2) of Directive 2004/18
    "

The questions referred

27. As a preliminary point, it must be held that the facts at issue in the main proceedings, as recalled in paragraphs 12 to 17 of this judgment, predate the expiry on 18 April 2016 of the deadline for transposition by the Member States of Directive 2014/24. It follows that the questions referred for a preliminary ruling must be assessed ratione temporis in the light of Directive 2004/18 alone as interpreted by the case-law of the Court.

On the first question, under (a)

28. In accordance with the Court's case-law, as regards public contracts falling within the scope of Directive 2004/18, Article 45 (2) thereof leaves the application of the seven cases of exclusion which it mentions, which relate to the professional honesty, the solvency or the reliability of the candidates of a market, to the appreciation of the Member States, as evidenced by the expression "[t] he can be excluded market participation 'at the beginning of this provision (see, in relation to Article 29 of Council Directive 92/50 / EEC of 18 June 1992 on the coordination of procedures for the award of public contracts of services (OJ 1992 L 209, p.1), judgment of 9 February 2006, La Cascina and others, C-226/04 and C-228/04, EU: C: 2006: 94, paragraph 21). In addition, under this second subparagraph of Article 45 (2), the Member States must specify the conditions for the application of that paragraph 2 in accordance with their national law and in accordance with Union law (see, in this respect, meaning, judgment of 10 July 2014, Consorzio Stabile Libor Lavori Pubblici, C-358/12, EU: C: 2014: 2063, paragraph 35).

29. Consequently, Article 45 (2) of Directive 2004/18 does not envisage uniformity in the application of the grounds for exclusion set out at Union level in so far as Member States have the faculty of not applying these causes of exclusion at all, or of incorporating them into national regulations with a degree of rigor that may vary from case to case, depending on legal, economic or social considerations prevailing at National level. In this context, the Member States have the power to lighten or make more flexible the criteria laid down in this provision (judgment of 10 July 2014, Consorzio Stabile Libor Lavori Pubblici, C-358/12, EU: C: 2014: 2063 , paragraph 36 and the case-law cited).

30. In the present case, it should be noted that, as regards the power to exclude an economic operator for serious professional misconduct, the Kingdom of the Netherlands has not specified, in its legislation, the conditions for application of the second subparagraph of Article 45 (2) of that Directive, but, by the decree, entrusted the exercise of that option to the contracting authorities. The Netherlands legislation at issue in the main proceedings gives the contracting authorities the option of declaring the optional grounds for exclusion provided for in Article 45 (2) of the directive to be applicable to a public procurement procedure.

31. As regards the reason for the exclusion of a tenderer from a serious malpractice market, it is clear from the order for reference that those rules oblige the contracting authority in question to have established the existence of such a fault. that tenderer to examine, in accordance with the principle of proportionality, whether it is indeed necessary to proceed with such an exclusion.

32. It thus appears that this examination of the proportionality of the exclusion renders more flexible the application of the ground of exclusion relating to serious professional misconduct laid down in Article 45 (2) (d) of Directive 2004/18, in accordance with the case-law cited in paragraph 29 of this judgment. In addition, it follows from recital 2 of that directive that the principle of proportionality applies, in general, to public procurement procedures.

33. Therefore, the answer to Question 1 (a) is that Union law, in particular Article 45 (2) of Directive 2004/18, does not preclude national legislation, such as that at issue in the main proceedings, requires a contracting authority to examine, in accordance with the principle of proportionality, whether it is indeed appropriate to exclude a candidate from a public contract which committed a serious professional misconduct.

The first question, under (b)

34. By the first question, under (b), the national court asks, in essence, whether the provisions of Directive 2004/18, read in the light of the principle of equal treatment and the obligation of transparency which This should be interpreted as precluding a contracting authority from awarding a public contract to a tenderer who has committed a serious professional misconduct on the grounds that the tenderer's exclusion from the procedure tendering procedure would have been contrary to the principle of proportionality, whereas, under the terms of the invitation to tender for this contract, a tenderer who had committed a serious professional misconduct must necessarily be excluded without taking into account the proportionality or otherwise of this sanction.

35. It follows from the national legislation at issue in the main proceedings that the contracting authorities have a wide discretion in introducing the conditions for the application of Article 45 (2) of Directive 2004/18, providing for the case of optional exclusion for serious professional misconduct committed by an economic operator, in the tender documents and the effective application thereof.

36. It can not be ruled out that, as soon as the documents of the contract in question are drawn up, the contracting authority concerned may consider, depending on the nature of the contract and the sensitivity of the services which are the subject of it, as well as the in the matter of professional honesty and the reliability of the economic operators resulting therefrom, that the commission of serious professional misconduct must result in the automatic rejection of the tender and the exclusion of the offending tenderer, provided that the the principle of proportionality shall be ensured when assessing the seriousness of that fault.

37. Such a clause, inserted in the contract documents and formulated unequivocally, as is the case in the market procedure at issue in the main proceedings, is such as to enable all reasonably informed and normally diligent economic operators to be aware of the contracting authority's requirements and market conditions, in order to act accordingly.

38. With regard to the question whether the contracting authority is obliged or entitled, under the relevant national rules, to examine, after the submission of tenders or even after the selection of tenderers, whether an exclusion application of an exclusion clause for serious professional misconduct complies with the principle of proportionality, whereas, under the terms of the invitation to tender for that contract, a tenderer who had committed a serious professional misconduct must necessarily have been excluded without to take into account the proportionality or non-proportionality of this sanction, it should be recalled that the contracting authority must strictly observe the criteria it has itself set (see, to that effect, judgment of 10 October 2013, Manova, C- 336/12, EU: C: 2013: 647, paragraph 40 and the case-law cited), in particular in view of point 17 of Annex VII A to Directive 2004/18.

39. Moreover, the principle of equal treatment requires that interested economic operators of a public contract have the same opportunities in the formulation of their offers and can know exactly the constraints of the procedure and be assured in fact that the same requirements apply to all competitors (see, to that effect, judgment of 2 June 2016, Pizzo, C-27/15, EU: C: 2016: 404, paragraph 36).

40. Similarly, the obligation of transparency means that all the conditions and detailed rules of the award procedure must be clearly, precisely and unambiguously laid down in the contract notice or in the tender specifications, in such a way that to enable all reasonably informed and normally diligent economic operators to understand their exact scope and to interpret them in the same way (see, to that effect, judgment of 2 June 2016, Pizzo, C-27/15, EU: C: 2016: 404, paragraph 36 and the case-law cited).

41. As regards the examination of the proportionality of the exclusion at issue in the main proceedings, it should be noted that some of the economic operators concerned, while knowing the exclusion clause inserted in the contract documents and while being aware of misconduct that could be classified as serious, may be tempted to submit an offer in the hope of being exempted from exclusion on the basis of a subsequent review of their situation in accordance with the principle in the main proceedings, whereas others, in a comparable situation, would refrain proportionality examination.

42. The latter assumption is, in particular, likely to concern traders in other Member States who are less familiar with the terms and conditions of application of the relevant national rules. This is all the more so in a situation such as that at issue in the main proceedings, in which the obligation of the contracting authority to examine the proportionality of a serious professional misconduct exclusion is not apparent from the very terms of the Article 45 (3) of the Decree, but only of the explanatory memorandum relating to that provision. According to the information supplied by the Netherlands Government in the course of the proceedings before the Court, that statement of reasons is not in itself binding, but must be taken into account only for the purpose of interpreting that provision.

43. Thus, the examination of the exclusion in question in the light of the principle of proportionality, whereas the conditions of the invitation to tender of the market in question provide for the rejection, without examination in the light of that principle, of tenders which such a cause of exclusion, is likely to place the economic operators concerned in uncertainty and to undermine the principle of equal treatment and compliance with the obligation of transparency.

44. In the light of the foregoing considerations, the answer to Question 1 (b) is that the provisions of Directive 2004/18, in particular those of Article 2 and Annex VIIA, 17 of that directive, read in the light of the principle of equal treatment and the obligation of transparency which follows from it, must be interpreted as precluding a contracting authority from deciding to award a public contract to a tenderer who has committed a serious professional misconduct on the ground that the exclusion of that tenderer from the tendering procedure would have been contrary to the principle of proportionality, whereas under the terms of the invitation to tender of that contract, a tenderer who had committed a serious professional misconduct must necessarily be excluded without taking into account the proportionality or non-proportionality of that sanction.

On the second question

45. Since the answer to the first question, under (b), provides the necessary information to enable the national court to decide the dispute before it, there is no need to answer the second question.

Costs

46. Since the proceedings are, in so far as the parties to the main action are concerned, in the nature of an action pending before the national court, the decision on costs is a matter for that court. The costs incurred in submitting observations to the Court, other than those of the said parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:

  1. Union law, in particular Article 45 (2) 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, does not preclude national rules, such as those at issue in the main proceedings, from requiring a contracting authority to examine, in accordance with the principle of proportionality, whether there is indeed a need for to exclude a candidate from a public contract who has committed a serious professional misconduct.
  2. The provisions of Directive 2004/18, in particular Article 17 and Annex VII A, point 17 thereof, read in the light of the principle of equal treatment and the obligation of transparency resulting from this, must be interpreted as precluding a contracting authority from awarding a public contract to a tenderer who has committed a serious professional misconduct on the grounds that the exclusion of that tenderer from the tender tendering procedure would have been contrary to the principle of proportionality, whereas, under the terms of the invitation to tender for that contract, a tenderer who had committed a serious professional misconduct must necessarily be excluded without taking into account the proportionality or non-proportionality this sanction.