1. CE, 3 avril 2026, 510005, Société Experis, classé B
Article(s) in Directive 2014/24/EU: Art. 57, (4), e)
Topic: Exclusion grounds - conflict of interest
Member State: FR
Court/rev. board: Conseil d’État
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
The article 57 (4), e) of the Directive 2014/24/EU was implemented by the Code de la commande publique (CCP), with the article L. 2141-10.
2. FACTS
France Télévisions, acting as as coordinator of a purchasing consortium composing four contracting authorities, including a public body, the National Audiovisual Institute (INA), oversaw the award of a public contract under a framework agreement with purchase orders for user and customer support, administration and ‘digital workplace’ engineering services. For the award of this contract, France Télévision had commissioned CG2 Conseil to provide project management support (assistance to the contracting authority).
Following the tender process, the contract was awarded to Helpline, whose Chief Executive Officer was the husband of the Chief Executive Officer of CG2 Conseil. The unsuccessful tenderer, Experis, sought the annulment of the procurement procedure, arguing that the successful tenderer should have been excluded as it was in a situation of conflict of interest within the meaning of Article L. 2141-10 of the Code de la commande publique.
3. JUDGMENT
In the view of Conseil d’État, the existence of such a marital relationship between the managing director of the project management assistant at France Télévisions, which is the coordinator of the procurement consortium, and the managing director of one of the tendering companies constitutes a conflict of interest which was such as to compromise the impartiality and independence of the purchaser. It therefore constitutes a conflict of interest within the meaning of the provisions of Article L. 2141-10 of the Code de la commande publique.
Furthermore, the Conseil d’État held that France Télévisions’s decision to end CG2 Conseil’s project management assistance mandate before resuming the procurement procedure – which once again resulted in Helpline being awarded the contract – was not sufficient to remedy the conflict of interest. According to the judge : “It emerges from the investigation that the latter, which, in its capacity as project management assistant, had been tasked with supporting France Télévision throughout this initial procedure for the award of the disputed public contract, had, in that capacity, visited the premises of the tenderers and had examined the content of the tenders submitted by the various candidates, thereby gaining access to confidential information regarding the tenders of Helpline’s competitors, with whom the connection referred to in the previous point exists. Consequently, when the same contract was re-tendered on the basis of the same initial tenders from the same candidates, the conflict of interest that had arisen as a result of the assignment previously entrusted to CG2 Conseil could only be remedied by excluding Helpline from the re-tendering of the disputed public procurement procedure, and the fact that CG2 Conseil was bound by a duty of confidentiality under its contract with France Télévisions was irrelevant in this regard”
Consequently, the Conseil d’État orders the annulment of the procurement procedure at the stage of the examination of tenders.
In the past, the Conseil d’État has taken a less concrete approach to the application of the principle of impartiality. Thus, he has ruled that: “The fact of seeking technical assistance from subsidiaries of a group that has collaborated on an ad hoc basis with SOCIÉTÉ AUTOSTRADE PER L’ITALIA S.P.A. in connection with electronic toll collection projects for heavy-duty vehicles launched in Austria and Poland cannot, in and of itself, constitute a breach of impartiality on the part of these external consultants in the context of the present proceedings; that it appears from the investigation in this regard—and is, moreover, not disputed by the petitioning companies—that this occasional collaboration accounted for only 0.4% of the Rapp Group’s revenue; that, moreover, the specific nature of the technical assistance services in question may make it inevitable that prior business relationships existed, in other countries, between these consulting firms and bidding companies specializing in electronic toll collection projects” (CE, June 24, 2011, 347720, Minister of Ecology, T.).
Similarly, in a case involving a preliminary injunction regarding trade secrets, the Conseil d’État ruled that: “It appears from the investigation that SHAM was required, as part of the consultation in question, to disclose information regarding the price of its bid, which must be regarded, at this stage of the procurement process, as covered by trade secret protection within the meaning of the provisions cited in paragraphs 2 through 4. Although SHAM argues that it expressly objected to its bid being disclosed to Mr. J…, an executive of ACAOP, and to all of that company’s employees – whose exclusion from the bid evaluation it had requested – due to Mr. J…’s alleged close ties with a competing company, this circumstance alone is not sufficient, in and of itself, to establish a risk of imminent infringement of trade secrets, given that ACAOP, as well as its executive and staff, are bound by a contractual confidentiality obligation in the context of their role in assisting the project owner. In this regard, it will be up to the petitioner, if it believes it has grounds to do so, to assert before the judge hearing the pre-contractual interim relief proceeding any breach it has identified of the rules of transparency and competition, which may, where applicable, constitute a violation by the contracting authority of trade secrets or the impartiality to which it is bound” (CE, February 10, 2022, 456503, SHAM).
We therefore welcome the Conseil d’État more realistic approach in this case. Finally, it should be noted that the Council orders the procedure to be restarted at the stage of reviewing applications, rather than at the stage of reviewing bids. Indeed, “it follows from the investigation, particularly the terms of the solicitation, that upon completion of the review of applications, the procuring entity was required to select between three and four candidates, who alone were eligible to submit a bid. Consequently, Experis France is justified in seeking the annulment of the procurement procedure at the stage of reviewing applications, without it being necessary to rule on the other violations it alleges, since these would not, even if well-founded, be likely to result in the annulment of the entire procurement procedure.”
The public rapporteur explains that the aim was, in fact, to select the best candidates.
