Conseil d’Etat, VIe chambre, 2 Avril 2025, n. 262.873, Belgium
Article(s) in Directive 2014/24/EU: Art. 57.4, d)
Topic: Bid Rigging
Member State: B
Court/rev. board: Conseil d’Etat (interlocutory procedure)
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
2. FACTS
The public authority renounced the award of a public contract. During the examination of the bids the public authority considered that one tenderer had formed an illegal agreement with another tenderer. In accordance the public authority to reject the bid submitted by the first tenderer.
3. JUDGMENT
With regard to affiliated companies participating in the same tender procedure, the Court of Justice of the European Union, in its judgment of 8 February 2018, C-144/17 (ECLI:EU:C:2018:78), stated that ‘the automatic exclusion of candidates or tenderers who are in a relationship of control or association with other competitors goes beyond what is necessary to prevent collusive behaviour and, therefore, to ensure the application of the principle of equal treatment and compliance with the obligation of transparency’ (paragraph 35). It states that ‘such automatic exclusion constitutes an irrefutable presumption of reciprocal interference in the respective tenders, for the same contract, of undertakings linked by a control or association relationship’, whereas the candidates or tenderers concerned must have the opportunity to ‘demonstrate the independence of their tenders’. According to the Court, it cannot be ruled out that undertakings belonging to the same group ‘enjoy a certain degree of autonomy in the conduct of their commercial policy and economic activities, in particular in the field of participation in public procurement procedures’, so as to ‘ensure both independence and confidentiality in the preparation of tenders which would be submitted simultaneously by the undertakings concerned in the same tendering procedure’.
In the judgment of 17 May 2018, C-531/16 (ECLI:EU:C:2018:324), the Court had already ruled that ‘the finding that the links between the tenderers have had an influence on the content of their tenders submitted in the same procedure is sufficient, in principle, to prevent those tenders from being taken into consideration by the contracting authority, as they must be submitted in complete autonomy and independence when they are submitted by linked tenderers’.
In the present case, it is not disputed that the enterprises are two related undertakings. The Council of State confirmed that it is irrelevant that the companies in question never had, in this case, the intention to distort competition. The undertakings did not prepare their tenders independently. On the contrary the tenders were coordinated or concerted’ (CJEU, C-531/16, paragraph 25), which is prohibited.
