7 September 2021 (*1)

Table of contents

Legal context

EU law

Directive 2016/943

Lithuanian law

Law on public procurement

Code of Civil Procedure of the Republic of Lithuania

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

Consideration of the questions referred

The first question

The second question

The third question

The fourth to ninth questions

Preliminary observations

The fifth to seventh questions

The fourth, eighth and ninth questions

– The scope of the contracting authority’s obligation to protect confidential information and the obligation to state reasons

– The scope of the competent national court’s obligation to protect confidential information

The tenth question

The eleventh question

Costs

(Reference for a preliminary ruling – Public procurement – Directive 2014/24/EU – Article 58(3) and (4) – Article 60(3) and (4) – Annex XII – Conduct of procurement procedures – Selection of participants – Selection criteria – Methods of proof – Economic and financial standing of economic operators – Whether the leader of a temporary association of undertakings may rely on income received in relation to a previous public contract in the same area as the public contract at issue including where it did not itself exercise the activity which is the subject matter of the public contract at issue – Technical and professional ability of economic operators – Exhaustive nature of means of proof permitted by the directive – Article 57(4)(h), (6) and (7) – Award of public service contracts – Non-compulsory grounds for exclusion from participation in a procurement procedure – Inclusion on a list of economic operators excluded from procurement procedures – Joint liability of members of a temporary association of undertakings – Personal nature of the penalty – Article 21 – Protection of the confidentiality of information submitted to the contracting authority by an economic operator – Directive (EU) 2016/943 – Article 9 – Confidentiality – Protection of trade secrets – Applicability to procurement procedures – Directive 89/665/EEC – Article 1 – Right to an effective remedy)

In Case C‑927/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Lietuvos Aukščiausiasis Teismas (Supreme Court, Lithuania), made by decision of 17 December 2019, received at the Court on 18 December 2019, in the proceedings

‘Klaipėdos regiono atliekų tvarkymo centras’ UAB

intervening parties:

‘Ecoservice Klaipėda’ UAB,

‘Klaipėdos autobusų parkas’ UAB,

‘Parsekas’ UAB,

‘Klaipėdos transportas’ UAB,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.‑C. Bonichot, A. Arabadjiev, A. Prechal, N. Piçarra and A. Kumin, Presidents of Chambers, C. Toader, M. Safjan, D. Šváby (Rapporteur), S. Rodin, F. Biltgen, L.S. Rossi, I. Jarukaitis and N. Jääskinen, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: M. Longar, Administrator,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– ‘Ecoservice Klaipėda’ UAB, by J. Elzbergas and V. Mitrauskas, advokatai,

– ‘Klaipėdos autobusų parkas’ UAB, by D. Soloveičik, advokatas,

– the Lithuanian Government, by K. Dieninis and R. Butvydytė, acting as Agents,

– the Austrian Government, by A. Posch and J. Schmoll, acting as Agents,

– the European Commission, by L. Haasbeek and by S.L. Kalėda and P. Ondrůšek, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 15 April 2021,

gives the following

1This request for a preliminary ruling concerns the interpretation of Articles 21 and 42, Article 57(4)(h), Article 58(3) and (4) and Article 70 of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65), of Articles 1 and 2 of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33), as amended by Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 (OJ 2014 L 94, p. 1), and Article 9(2) of Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure (OJ 2016 L 157, p. 1).

2The request has been made in proceedings between ‘Klaipėdos regiono atliekų tvarkymo centras’ UAB (Regional Waste Management Centre for the Region of Klaipėda, Lithuania) (‘the contracting authority’) and ‘Ecoservice Klaipėda’ UAB (‘Ecoservice’) concerning the award of a public contract for waste collection and transport to a group of economic operators composed of ‘Klaipėdos autobusų parkas’ UAB, ‘Parsekas’ UAB and ‘Klaipėdos transportas’ UAB (‘the Consortium’).

3Recital 51 of Directive 2014/24 states:

‘It should be clarified that the provisions concerning protection of confidential information do not in any way prevent public disclosure of non-confidential parts of concluded contracts, including any subsequent changes.’

4Article 18 of that directive, entitled ‘Principles of procurement’, provides in paragraph 1:

‘Contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.

…’

5Article 21 of that directive, entitled ‘Confidentiality’, provides:

‘1. Unless otherwise provided in this Directive or in the national law to which the contracting authority is subject, in particular legislation concerning access to information, and without prejudice to the obligations relating to the advertising of awarded contracts and to the information to candidates and tenderers set out in Articles 50 and 55, the contracting authority shall not disclose information forwarded to it by economic operators which they have designated as confidential, including, but not limited to, technical or trade secrets and the confidential aspects of tenders.

6Article 42 of the directive, entitled ‘Technical specifications’, provides:

‘1. The technical specifications as defined in point 1 of Annex VII shall be set out in the procurement documents. The technical specifications shall lay down the characteristics required of a works, service or supply.

Those characteristics may also refer to the specific process or method of production or provision of the requested works, supplies or services or to a specific process for another stage of its life cycle even where such factors do not form part of their material substance, provided that they are linked to the subject matter of the contract and proportionate to its value and its objectives.

The technical specifications may also specify whether the transfer of intellectual property rights will be required.

…

(a) in terms of performance or functional requirements, including environmental characteristics, provided that the parameters are sufficiently precise to allow tenderers to determine the subject matter of the contract and to allow contracting authorities to award the contract;

(b) by reference to technical specifications and, in order of preference, to national standards transposing European standards, European Technical Assessments, common technical specifications, international standards, other technical reference systems established by the European standardisation bodies or – when any of those do not exist – national standards, national technical approvals or national technical specifications relating to the design, calculation and execution of the works and use of the supplies; each reference shall be accompanied by the words “or equivalent”;

(c) in terms of performance or functional requirements referred to in point (a), with reference to the technical specifications referred to in point (b) as a means of presuming conformity with such performance or functional requirements;

(d) by reference to the technical specifications referred to in point (b) for certain characteristics, and by reference to the performance or functional requirements referred to in point (a) for other characteristics.

…’

7Annex VII to Directive 2014/24 relates to the ‘definition of certain technical specifications’.

8Article 50 of that directive, entitled ‘Contract award notices’, provides in paragraph 4:

‘Certain information on the contract award or the conclusion of the framework agreement may be withheld from publication where its release would impede law enforcement or otherwise be contrary to the public interest, would harm the legitimate commercial interests of a particular economic operator, public or private, or might prejudice fair competition between economic operators.’

9Under Article 55 of that directive, entitled ‘Informing candidates and tenderers’:

‘1. Contracting authorities shall as soon as possible inform each candidate and tenderer of decisions reached concerning the conclusion of a framework agreement, the award of the contract or admittance to a dynamic purchasing system, including the grounds for any decision not to conclude a framework agreement, not to award a contract for which there has been a call for competition, to recommence the procedure or not to implement a dynamic purchasing system.

(a) any unsuccessful candidate of the reasons for the rejection of its request to participate,

(b) any unsuccessful tenderer of the reasons for the rejection of its tender, including, for the cases referred to in Article 42(5) and (6), the reasons for its decision of non-equivalence or its decision that the works, supplies or services do not meet the performance or functional requirements,

(c) any tenderer that has made an admissible tender of the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer or the parties to the framework agreement,

(d) any tenderer that has made an admissible tender of the conduct and progress of negotiations and dialogue with tenderers.

10Article 56 of that directive, entitled ‘General principles’, states in paragraph 3:

‘Where information or documentation to be submitted by economic operators is or appears to be incomplete or erroneous or where specific documents are missing, contracting authorities may, unless otherwise provided by the national law implementing this Directive, request the economic operators concerned to submit, supplement, clarify or complete the relevant information or documentation within an appropriate time limit, provided that such requests are made in full compliance with the principles of equal treatment and transparency.’