Brussels, 22/10/2015 (Agence Europe) - On Thursday 22 October, the Court of Justice of the EU ruled (case C-425/14) that a company can be excluded from a call for tenders if it has not formally undertaken to work with the authorities to fight criminal activities and distortions of competition in public procurement. However, this exclusion cannot be automatic and may not result from requirements which go beyond what is necessary to prevent collusive behaviour.
The Court was asked about these points by the Administrative Council of Justice of the Region of Sicily (Italy), to which the case of two companies had been brought. Having been awarded a public contract to restore historical monuments in Sicily, these companies found themselves excluded on the grounds that they had not agreed to all of the clauses of the legality agreement they had to submit in order to be awarded the contract. These clauses included: - a commitment by the tenderers not to restrict competition by means of agreements with other participants in the call for tenders and to notify the authorities of any irregularities or distortions they may become aware of in the course of the tendering procedure and the execution of the contract, and of any attempted influence of a criminal nature; - a statement from the tenderers to the effect that they are not in a relationship of control or association with other participants in the call for tenders, have not concluded and will not conclude agreements with them, nor will subcontract any type of activity to them.
In its judgment, the Court takes the view that the company's refusal to abide by the commitment stated above is a valid reason to exclude it from the public procurement procedure. However, this cannot be the case if the company refuses to subscribe to the above-mentioned statement of independence, as the Court has already ruled that the automatic exclusion of candidates or tenderers in a relationship of control or association with other candidates “goes beyond what is required to prevent collusive behaviour and therefore to ensure the application of the principle of equality of treatment and respect of the obligations transparency”. The judges argue that this automatic exclusion implies that there is a “two-way interference in the respective bids for a given contract by companies linked by a relationship of control or association”, without giving these companies the chance to defend themselves and to show that their tenders are independent of each other. However, this goes against the requirement of the EU to ensure the broadest possible participation of tenderers in a call for tenders, the judges conclude. (Original version in French by Francesco Gariazzo)