Provisional text

delivered on 11 May 2023 (1)

Case C-266/22

CRRC Qingdao Sifang CO LTD and

Astra Vagoane Călători SA

Autoritatea pentru Reformă Feroviară and

Alstom Ferroviaria SPA

(Request for a preliminary ruling from the Curtea de Apel Bucureşti (Court of Appeal, Bucharest, Romania))

( Reference for a preliminary ruling – Approximation of laws – Procedures for the award of public works contracts, public supply contracts and public service contracts – Directive 2014/24/EU – Article 25 – National legislation which entered into force after the contract notice was published – Amendment of the concept of ‘economic operator’ – Exclusion of the tender submitted by an economic operator established in the People’s Republic of China – Third country which is not a signatory to an agreement referred to in Article 25 )

1.This request for a preliminary ruling concerns the interpretation of Article 2(1)(13), Article 18(1), Article 25 and Article 49 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, (2) as amended by Commission Delegated Regulation (EU) 2019/1828 of 30 October 2019 (3) (‘Directive 2014/24’).

2.By its two questions, the Curtea de Apel București (Court of Appeal, Bucharest, Romania) asks the Court to examine, in essence, whether those provisions of EU law on public procurement preclude an economic operator established in the People’s Republic of China from being excluded from a public procurement procedure initiated by a contracting authority of a Member State, where that exclusion results from national legislation by which the concept of ‘economic operator’ was amended with a view to transposing Article 25 of Directive 2014/24 and that national legislation entered into force after the contract notice was published.

3.The request has been made in proceedings between, on the one hand, a consortium consisting of CRRC Qingdao Sifang and Astra Vagoane Călători SA (together, ‘the consortium’) and, on the other hand, the Autoritatea pentru Reformă Feroviară (Railway Reform Authority; ‘the ARF’), a contracting entity in Romania, and Alstom Ferroviaria, which intervened in support of ARF. More precisely, the dispute concerns the decision of this entity to exclude the tender submitted by the consortium in a procurement procedure for the acquisition of 20 new interregional electric multiple units and the provision of maintenance and repair services for those multiple units, on the ground that CRRC Qingdao Sifang is a company whose registered office is in the People’s Republic of China.

4.The questions referred will allow the Court to examine, for the first time, the conformity with EU law of national rules intended to transpose Article 25 of Directive 2014/24, as well as to interpret the normative content of that provision.

II. Legal framework

5.Recitals 1, 17 and 98 of Directive 2014/24 state:

‘(1) The award of public contracts by or on behalf of Member States’ authorities has to comply with the principles of the Treaty on the Functioning of the European Union (TFEU), and in particular the free movement of goods, freedom of establishment and the freedom to provide services, as well as the principles deriving therefrom, such as equal treatment, non-discrimination, mutual recognition, proportionality and transparency. However, for public contracts above a certain value, provisions should be drawn up coordinating national procurement procedures so as to ensure that those principles are given practical effect and public procurement is opened up to competition.

…

(17) Council Decision 94/800/EC [of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1)] approved in particular the World Trade Organisation Agreement on Government Procurement [‘the GPA’]. The aim of the GPA is to establish a multilateral framework of balanced rights and obligations relating to public contracts with a view to achieving the liberalisation and expansion of world trade. For contracts covered by Annexes 1, 2, 4 and 5 and the General Notes to the European Union’s Appendix I to the GPA, as well as by other relevant international agreements by which the Union is bound, contracting authorities should fulfil the obligations under those agreements by applying this Directive to economic operators of third countries that are signatories to the agreements.

…

(98) It is essential that award criteria or contract performance conditions concerning social aspects of the production process relate to the works, supplies or services to be provided under the contract. In addition, they should be applied in accordance with Directive 96/71/EC [of the European Parliament and of the Council, of 16 December 1996, concerning the posting of workers in the framework of the provision of services (OJ 1997 L 18, p. 1)], as interpreted by the [Court] and should not be chosen or applied in a way that discriminates directly or indirectly against economic operators from other Member States or from third countries parties to the GPA or to Free Trade Agreements to which the Union is party. …’

6.Article 2 of Directive 2014/24, entitled ‘Definitions’, states, inter alia, the following definitions, in paragraph 1:

‘For the purposes of this Directive, the following definitions apply:

…

(5) “public contracts” means contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services;

…

(10) “economic operator” means any natural or legal person or public entity or group of such persons and/or entities, including any temporary association of undertakings, which offers the execution of works and/or a work, the supply of products or the provision of services on the market;

…

(11) “tenderer” means an economic operator that has submitted a tender;

…

(13) “procurement document” means any document produced or referred to by the contracting authority to describe or determine elements of the procurement or the procedure, including the contract notice, the prior information notice where it is used as a means of calling for competition, the technical specifications, the descriptive document, proposed conditions of contract, formats for the presentation of documents by candidates and tenderers, information on generally applicable obligations and any additional documents;

…’

7.Under Article 7 thereof, entitled ‘Contracts in the water, energy, transport and postal services sectors’, Directive 2014/24 is not to apply to public contracts and design contests which, under Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ 2014 L 94, p. 243), as amended by Commission Delegated Regulation (EU) 2019/1829 of 30 October 2019 (OJ 2019 L 279, p. 27) (‘Directive 2014/25’), are awarded or organised by contracting authorities exercising one or more of the activities referred to in Articles 8 to 14 of Directive 2014/25 and are awarded for the pursuit of those activities.

8.Article 18 of Directive 2014/24, entitled ‘Principles of procurement’, provides, in the first subparagraph of paragraph 1 thereof, that contracting authorities are to treat economic operators equally and without discrimination and are to act in a transparent and proportionate manner.

9.Article 19 of that directive, entitled ‘Economic operators’, provides in the first subparagraph of paragraph 1 thereof:

‘Economic operators that, under the law of the Member State in which they are established, are entitled to provide the relevant service, shall not be rejected solely on the ground that, under the law of the Member State in which the contract is awarded, they would be required to be either natural or legal persons.’

10.Article 25 of that directive, entitled ‘Conditions relating to the GPA and other international agreements’, is worded as follows:

‘In so far as they are covered by Annexes 1, 2, 4 and 5 and the General Notes to the European Union’s Appendix I to the GPA and by the other international agreements by which the Union is bound, contracting authorities shall accord to the works, supplies, services and economic operators of the signatories to those agreements treatment no less favourable than the treatment accorded to the works, supplies, services and economic operators of the Union.’

11.Article 49 of that directive, entitled ‘Contract notices’, reads as follows:

‘Contract notices shall be used as a means of calling for competition in respect of all procedures, without prejudice to the second subparagraph of Article 26(5) and Article 32. Contract notices shall contain the information set out in Annex V part C and shall be published in accordance with Article 51.’

12.Article 58 of Directive 2014/24, entitled ‘Selection criteria’, provides, in the first subparagraph of paragraph 2 thereof:

‘With regard to suitability to pursue the professional activity, contracting authorities may require economic operators to be enrolled in one of the professional or trade registers kept in their Member State of establishment, as described in Annex XI, or to comply with any other request set out in that Annex.’

13.Article 1 of Directive 2014/25, entitled ‘Subject matter and scope’, provides, in paragraph 2 thereof:

‘Procurement within the meaning of this Directive is the acquisition by means of a supply, works or service contract of works, supplies or services by one or more contracting entities from economic operators chosen by those contracting entities, provided that the works, supplies or services are intended for the pursuit of one of the activities referred to in Articles 8 to 14.’

14.Article 11 of that directive, entitled ‘Transport services’, provides:

‘This Directive shall apply to activities relating to the provision or operation of networks providing a service to the public in the field of transport by railway, automated systems, tramway, trolley bus, bus or cable.

As regards transport services, a network shall be considered to exist where the service is provided under operating conditions laid down by a competent authority of a Member State, such as conditions on the routes to be served, the capacity to be made available or the frequency of the service.’

15.Article 43 of that directive, entitled ‘Conditions relating to the GPA and other international agreements’, is worded as follows:

‘In so far as they are covered by Annexes 3, 4 and 5 and the General Notes to the European Union’s Appendix I to the GPA and by the other international agreements by which the Union is bound, contracting entities within the meaning of Article 4(1)(a) shall accord to the works, supplies, services and economic operators of the signatories to those agreements treatment no less favourable than the treatment accorded to the works, supplies, services and economic operators of the Union.’

16.The communication of the Commission of 24 July 2019, entitled ‘Guidance on the participation of third-country bidders and goods in the EU procurement market’ [C(2019) 5494 final] (4) (‘the Commission Communication of 24 July 2019’), includes the following relevant passages:

‘The EU has committed itself under several international agreements (such as the Agreement on Government Procurement and bilateral Free Trade Agreements with Procurement Chapters), to grant access to its public procurement market for certain works, supplies, services and economic operators of several third countries.

Accordingly, the public procurement directives provide, for public buyers in the EU, to accord to the works, supplies, services and economic operators of the signatories to those agreements treatment that is no less favourable than the treatment accorded to the works, supplies, services and economic operators of the EU, in so far as these are covered by these agreements.

Beyond that obligation, economic operators from third countries, which do not have any agreement providing for the opening of the EU procurement market or whose goods, services and works are not covered by such an agreement, do not have secured access to procurement procedures in the EU and may be excluded.’

B. Romanian law

17.Article 3(1)(jj) of Legea nr. 98/2016 privind achiziţiile publice (Law No 98/2016 on public procurement) of 19 May 2016 (Monitorul Oficial al României, Part I, No 390 of 23 May 2016), in the version in force as of 3 April 2020, (‘the Law on public procurement’), defines the concept of ‘economic operator’ as follows:

‘For the purposes of this Law, the following definitions apply:

…

(jj) economic operator means any natural or legal person, whether governed by public or private law, or any group or association of such persons, including any temporary association between two or more such entities, which lawfully offers on the market the execution of works and/or a work, the supply of products or the provision of services’.

18.Article 236 of the Law on public procurement provides:

‘1. This Law shall apply to contract award procedures initiated after the date on which it enters into force.

4. Public procurement contracts/framework agreements concluded before the date on which this Law enters into force shall be subject to the provisions of the law in force on the date on which they were concluded in all matters concerning the conclusion, amendment, interpretation, effects, performance and termination of those contracts/framework agreements.’

19.L’Ordonanța de urgență a Guvernului nr. 25/2021 privind modificarea și completarea unor acte normative în domeniul achizițiilor publice (Government Emergency Order No 25/2021 amending and supplementing certain legislative acts in the field of public procurement) of 31 March 2021 (Monitorul Oficial al României, Part I, No 346 of 5 April 2021) (‘the GEO No 25/2021’), which entered into force on 5 April 2021, amended several provisions of the Law on public procurement in order to transpose Article 25 of Directive 2014/24 and Article 43 of Directive 2014/25.

20.Article V of GEO No 25/2021 provides:

‘Contract award procedures in which economic operators have submitted tenders on the date on which this GEO enters into force shall be subject to the legislation in force on the date on which those procedures were initiated.’

21.Article 3(1)(jj) of the Law on public procurement, as amended by GEO No 25/2021, defines the concept of ‘economic operator’ as follows:

‘For the purposes of this Law, the following definitions apply:

…

(jj) economic operator means any natural or legal person, whether governed by public or private law, or any group or association of such persons, including any temporary association between two or more such entities, which lawfully offers on the market the execution of works and/or a work, the supply of products or the provision of services, and which is established in:

(i) a Member State of the European Union;

(ii) a Member State of the European Economic Area (EEA);

(iii) third countries which have ratified the [GPA], in so far as the public contract awarded falls within the scope of Annexes 1, 2, 4, 5, 6 and 7 to Appendix I to the GPA;

(iv) third countries acceding to the European Union;

(v) third countries which do not fall within the scope of point (iii) but which are signatories to other international agreements requiring the European Union to grant free access to the public procurement market.’

22.Article 49 of the Law on public procurement, as amended by GEO No 25/2021, provides:

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

23.Article 53(1) and (1 bis) of the Law on public procurement, as amended by GEO No 25/2021, provides:

‘(1) The economic operators defined in Article 3(1)(jj) shall be authorised to participate in the procurement procedures referred to in Article 68 as individual tenderers/associate tenderers/candidates/third party supporters/subcontractors.

(1 bis) The contracting authority shall exclude from the procurement procedures any natural or legal person who is an individual tenderer/associate tenderer/candidate/third party supporter/subcontractor and who does not fall within the definition set out in Article 3(1)(jj), without it being necessary to verify compliance with Articles 164, 165 and 167.’

III. The dispute in the main proceedings, the questions referred and the procedure before the Court

24.On 3 April 2020, the ARF launched a procurement procedure, through an open call for tenders, for ‘the purchase of 20 new interregional electric multiple units, known as IR-EMUs, and the purchase of the maintenance and repair services necessary for the operation of the trains in question’, by publication in the Sistemul Electronic de Achiziţii Publice (electronic public procurement system) of Contract Notice CN1020204 of 3 April 2020 and of the relevant procurement documents.

25.On 5 April 2021, GEO No 25/2021 amending and supplementing certain legislative acts in the field of public procurement entered into force.

26.On 19 April 2021, which was the time limit for the submission of tenders under the procurement procedure in question, two economic operators, namely the consortium and Alstom Ferroviaria, submitted tenders.

27.On 2 November 2021, the ARF published the final report on procurement procedure No 22/410/28.10.2021, by which it excluded the tender submitted by the consortium and declared successful Alstom Ferroviaria’s tender (‘the exclusion report’). The ground for the exclusion was that the leader of the consortium, CRRC Qingdao Sifang, did not fall within the concept of ‘economic operator’ as defined in Article 3(1)(jj) of the Law on public procurement, as amended by GEO No 25/2021, in view of the fact that its registered office is in the People’s Republic of China.

28.On 11 November 2021, the consortium brought an action against the exclusion report before the Consiliul Național de Soluționare a Contestațiilor (National Council for the Resolution of Complaints, Romania; ‘the CNSC’). In that action, the consortium argued that that exclusion, based on the retroactive application of GEO No 25/2021, was contrary to the Romanian Constitution and EU law.

29.By decision of 31 January 2022, the CNSC dismissed the consortium’s action. The CNSC, first of all, noted that the People’s Republic of China did not meet any of the requirements set out in Article 3(1)(jj)(i) to (v) of the Law on public procurement, as amended by GEO No 25/2021. The CNSC next found that the consortium had submitted its tender on 19 April 2021, that is to say after the entry into force on 5 April 2021 of GEO No 25/2021. Finally, the CNSC stated that, under Article V of GEO No 25/2021, only contract award procedures in which economic operators have submitted tenders on the date on which that GEO enters into force are to be subject to the legislation in force on the date on which those procedures were initiated. By contrast, contract award procedures in which no tender was submitted by 5 April 2021, the date of entry into force of GEO No 25/2021, are governed by that GEO.

30.On 14 February 2022, the consortium brought an appeal against the CNSC’s decision before the Curtea de Apel București (Court of Appeal, Bucharest), the referring court, which adjudicates at last instance. In that appeal, the consortium argued that the amendment of the rules of a procurement procedure, in the course of the procedure, constitutes a breach of the principles of EU law, in particular the principles of the protection of legitimate expectations, legal certainty, non-retroactivity, transparency and equal treatment.

31.On 2 March 2022, the applicants requested that three questions be referred to the Court of Justice for a preliminary ruling.

32.The referring court points out that GEO No 25/2021 amended the legal framework for public procurement and redefined certain general rules on participation in contract award procedures in accordance with Article 25 of Directive 2014/24, which requires Member States to ensure equal treatment with economic operators from Member States only for economic operators from third States which are signatories to the agreements to which that provision refers.

33.In the preamble to GEO No 25/2021, the Romanian Government referred to a trend, over the preceding years, towards an increase in the number of third-country tenderers participating in public procurement procedures and offering reduced guarantees regarding compliance with certain requirements such as certified quality standards, environmental and sustainable development standards, requirements related to working conditions and social protection, and competition policies.

34.The referring court notes that Article 25 of Directive 2014/24 makes no distinction, as regards the treatment of economic operators referred to in that provision, according to the time at which those operators submitted their tenders in the public procurement procedures in which they are participating.

35.That court asks to what extent compliance with the principles of certainty in legal relations and the protection of legitimate expectations, as enshrined in EU law, and with the principles of equal treatment, transparency and proportionality laid down in Article 18(1) of Directive 2014/24, together with Article 2(1)(13) and Article 49 of that directive, is ensured where a tenderer is excluded on the basis of a legislative act which has the force of law and amends the definition of economic operator after publication of the contract notice.

36.In those circumstances, the Curtea de Apel București (Court of Appeal, Bucharest) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Do the principles of certainty in legal relations and the protection of legitimate expectations preclude a piece of national legislation which transposed Article 25 of [Directive 2014/24], as from 5 April 2021, and which provided that economic operators who do not fall within the scope of those provisions of EU law may continue to participate in public procurement procedures only if they have submitted tenders before the date on which that legislative amendment entered into force?

(2) Do the principles of equal treatment, transparency and proportionality laid down in Article 18(1) of Directive 2014/24, in conjunction with Article 2(1)(13) and Article 49 of that directive, preclude the exclusion of a tenderer on the basis of a legislative act having the force of law adopted by the government of a Member State which lays down a new rule amending the definition of “economic operator” after publication of the contract notice relating to a contract award procedure in which that person is participating?’

Written observations were submitted to the Court by the consortium, the ARF, Alstom Ferroviaria, the Austrian Government and the European Commission.

Alstom Ferroviaria and the ARF, both in the alternative, as well as the Austrian Government and the Commission, propose that the questions referred be answered in the negative. For its part, the consortium proposes that those questions be answered in the affirmative.

Both Alstom Ferroviaria and the ARF plead that the request for a preliminary ruling is inadmissible in its entirety. Alstom Ferroviaria, more precisely, argues that the questions referred are inadmissible in that they concern the interpretation not of provisions of EU law but of rules of national law (5), which fall within the exclusive jurisdiction of the national court. The ARF maintains, for its part, that the legal situation underlying the dispute in the main proceedings does not fall within the scope ratione personae of EU law and that the request for a preliminary ruling is inadmissible as regards CRRC Qingdao Sifang. Moreover, if the request for a preliminary ruling were to be declared inadmissible as regards CRRC Qingdao Sifang, it should also be declared inadmissible as regards Astra Vagoane Călători, which, although established in Romania, participated in the public procurement procedure as part of a consortium with CRRC Qingdao Sifang.

I would point out, in that regard, that, in accordance with settled case-law, in the context of the cooperation procedure between the national courts and the Court of Justice established in Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation or the validity of a rule of EU law, the Court is in principle bound to give a ruling. (6) Moreover, the Court may refuse to rule on a question referred by a national court for a preliminary ruling only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (7)

In the present case, the referring court is seeking to ascertain whether the application, after publication of the contract notice, of national legislation which amended the concept of ‘economic operator’ with a view to transposing Article 25 of Directive 2014/24, which resulted in the exclusion of the consortium, is compatible with EU law. In those circumstances, it cannot be found that it is quite obvious that the interpretation sought of EU law bears no relation to the actual facts of the main action or to its object or is hypothetical. Moreover, the order for reference contains sufficient factual and legal material to give a useful answer to the questions submitted by the referring court. So far as concerns, moreover, the arguments put forward by the ARF concerning the inapplicability of Directive 2014/24 to economic operators established in third countries which are not signatories to any agreement opening up the EU procurement market to them, those arguments relate to the substantive analysis of the questions raised and not to their admissibility.

In the light of the foregoing considerations, I take the view that the request for a preliminary ruling is admissible.

B. Substance

By its two questions referred for a preliminary ruling, which it is appropriate to examine together, the referring court asks, in essence, whether the principles of legal certainty and the protection of legitimate expectations, on the one hand, and the principles of equal treatment, transparency and proportionality laid down in Article 18(1) of Directive 2014/24, read together with Article 2(1)(13) and Article 49 of that directive, on the other hand, preclude the exclusion of a tenderer on the ground that it is established in a third country which is not a signatory to an agreement referred to in Article 25 of that directive, where, first, that exclusion results from national legislation which amended the concept of ‘economic operator’ with a view to transposing Article 25 of that directive and, second, that national legislation entered into force after the contract notice concerned was published and before the tenders were submitted.

In the light of the facts in the main proceedings, some preliminary remarks are necessary concerning the material, temporal and personal scope of Directive 2014/24. Only if it falls within the scope of that directive will the consortium be able to rely on the various principles of EU law on which the referring court seeks guidance from the Court.

As will be shown below, although the ratione materiae and ratione temporis application of that directive do raise questions, which are ultimately a matter for the national court to decide, that is not the case with respect to its application ratione personae, in so far as Article 25 thereof means that economic operators from third countries, that are not signatories to the agreements referred to in that provision, do not enjoy the rights provided for by that directive and cannot therefore validly rely on a breach of the principles of equality, non-discrimination, legal certainty and the protection of legitimate expectations laid down by EU law.

Like the Austrian Government and the Commission, it seems possible to me that the public contract at issue in the main proceedings, which concerns the acquisition of electric multiple units for rail transport and the maintenance and repair services necessary for the operation of those multiple units, does not fall within the scope of Directive 2014/24, on which the referring court seeks guidance from the Court, but rather is covered by Directive 2014/25.

Directive 2014/24 applies to the procedures for procurement by contracting authorities with respect to public contracts whose value is estimated to be equal to or more than the thresholds laid down in Article 4 thereof. Under Article 7 thereof, that directive does not apply, in particular, to public contracts which are awarded or organised by contracting authorities exercising one or more of the activities referred to in Articles 8 to 14 thereof and are awarded for the pursuit of those activities. Accordingly, the material scope of Directive 2014/24 does not extend, inter alia, to public contracts in the transport services sector, as defined in Article 11 of Directive 2014/25. (8) Article 11, entitled ‘Transport services’, specifies, in the first paragraph thereof, that that directive is to apply to activities relating to the provision or operation of networks providing a service to the public, inter alia, in the field of transport by railway. Moreover, according to the second paragraph of that article, a network is to be considered to exist where the service is provided under operating conditions laid down by a competent authority of a Member State, such as conditions on the routes to be served, the capacity to be made available or the frequency of the service.

However, in the present case, it cannot be determined conclusively, on a reading of the documents before the Court, either whether the contracting authority at issue in the main proceedings, despite its name, itself provides transport services within the meaning of Article 11 of Directive 2014/25, (9) or whether the electric multiple units which are the subject matter of the contract at issue in the main proceedings will be operated within the context of a network within the meaning of that provision. (10) It will therefore be for the referring court, which alone has jurisdiction to assess the facts, to make those assessments and to establish whether the contract at issue in the main proceedings falls within the scope of Directive 2014/24 or Directive 2014/25.

That said, the fact remains that Article 25 of Directive 2014/24, to which the question referred relates, is drafted in terms analogous to those of Article 43 of Directive 2014/25 and refers, in essence, to the same agreements. (11) Accordingly, the failure to clearly identify the directive applicable in the main proceedings should not be such as to prevent the Court from answering the questions raised, since the interpretation adopted in relation to Article 25 of Directive 2014/24 is directly transposable to Article 43 of Directive 2014/25. (12)

As is apparent from settled case-law, the directive applicable to a public contract is, as a rule, the one in force at the time when the contracting authority chooses the type of procedure to be followed and decides definitively whether or not a prior call for competition needs to be issued for the award of a public contract. (13)

In that regard, I note that Directive 2004/18 was repealed by Directive 2014/24 with effect from 18 April 2016. Article 90 of Directive 2014/24 provides that Member States must bring into force the laws, regulations and administrative provisions necessary to comply with that directive by 18 April 2016, subject to some exceptions, (14) which, in this case, are irrelevant.

In the present case, the call for tenders was published on 3 April 2020, almost four years after the repeal of Directive 2004/18 and the expiry of the period for transposition of Directive 2014/24. Accordingly, for the EU legal order, the directive in force when the contracting authority chose the type of procedure was Directive 2014/24.

That conclusion cannot be called into question by the fact that GEO No 25/2021, which transposed Article 25 of Directive 2014/24 into Romanian law, did not enter into force until 5 April 2021, that is to say after the launch of the tender on 3 April 2020 and almost five years after the deadline for transposition of Directive 2014/24.

In the first place, it is clear from settled case-law on the application of Directive 2014/24 that the provisions of that directive apply in the period after the deadline for transposition, and even before the date of actual transposition. (15) Moreover, the Court recently ruled that where a tender had been excluded from a procedure for the award of a public contract before the expiry of the period for transposition of the relevant directive and before the latter had been incorporated into national law, it would be contrary to the principle of legal certainty to apply that directive, given that the decision against which an infringement of EU law is alleged had been taken before that date. (16) That judgment could be interpreted a contrario as meaning that Directive 2014/24 applies only if, at the very least, it had been transposed into national law at the time of the exclusion. That is the situation in the present case. Therefore, Directive 2014/24 was clearly applicable. That also applies to the rules transposing Directive 2014/25. (17)

In the second place, it should be pointed out that, according to settled case-law, a directive cannot, of itself, impose obligations on an individual and cannot therefore be relied upon as such against an individual. If the possibility of relying on a provision of a directive that has not been transposed, or has been incorrectly transposed, were to be extended to the sphere of relations between individuals, that would amount to recognising a power in the European Union to enact obligations for individuals with immediate effect, whereas it has competence to do so only where it is empowered to adopt regulations. (18) That is, however, not the situation in the present case.

On the one hand, where a person is able to rely on a directive, which has not been transposed within the period prescribed, not as against an individual but as against the State, he may do so regardless of the capacity in which the latter is acting. It is necessary to prevent the State from taking advantage of its own failure to comply with EU law. Consequently, the entities against which reliance may be placed on the provisions of a directive that are capable of having direct effect include not only a public entity but also a body, whatever its legal form, which has been given responsibility, pursuant to a measure adopted by the State, for providing a public-interest service under the control of the State and which has, for that purpose, special powers beyond those which result from the normal rules applicable in relations between individuals. (19)

In the present case, the request for a preliminary ruling points to the conclusion that the ARF acted as a public authority meeting the conditions required by Directive 2014/24 in order to be regarded as a ‘contracting authority’ within the meaning of Article 1(1) of that directive, which is, however, a matter for the referring court to ascertain. (20) If this is confirmed, then the provisions of Directive 2014/24, including the rules relating to its scope (which have been analysed above) could be relied on against the ARF. Accordingly, in any event, economic operators which participated in the procurement procedure for the contract at issue in the main proceedings, and which fell within the scope of Directive 2014/24, could have relied on the application of that directive after the expiry of the period for its transposition, irrespective of the fact that the directive was transposed only belatedly in Romanian law.

On the other hand, it should also be recalled that the national court is required to interpret national law, as soon as the time limit for the transposition of an untransposed directive expires, so as to render the situation at issue immediately compatible with the provisions of that directive, without however interpreting national law contra legem. (21) However, in the present case, there is no such risk of a contra legem interpretation, since, at the date on which the action was brought, that is to say 11 November 2021, GEO No 25/2021, which transposed Directive 2014/24, was already in force. (22)

In order to be able to rely on the principles of EU law set out in the questions referred for a preliminary ruling, the consortium must fall within the scope ratione personae of Directive 2014/24. Otherwise, it would have to be concluded that the consortium cannot derive any rights from that directive in the context of the main proceedings. Because EU law would not apply to it, nor could it rely on the general principles of legal certainty and the protection of legitimate expectations, as guaranteed by EU law.

In that regard, I would point out that CRRC Qingdao Sifang, the leading company of the consortium, is a company established in the People’s Republic of China, which is not a signatory to the agreements referred to in Article 25 of Directive 2014/24. In order to answer the questions referred, it must first of all be determined whether a company established in that State falls within the scope ratione personae of that directive. (23)

In that regard, it is necessary to examine Article 1 of Directive 2014/24, entitled ‘Subject matter and scope’, which merely states that that directive ‘establishes rules on the procedures for procurement by contracting authorities with respect to public contracts’ and describes the concept of ‘procurement’ within the meaning of that directive, as consisting in ‘the acquisition by means of a public contract of works, supplies or services by one or more contracting authorities from economic operators chosen by those contracting authorities.’ (24) The scope of that directive depends, therefore, in part on the definition of the concept of ‘economic operator’. According to Article 2(1)(10) of that directive, that concept covers ‘any natural or legal person or public entity or group of such persons and/or entities, including any temporary association of undertakings, which offers the execution of works and/or a work, the supply of products or the provision of services on the market.’

On the basis of that definition, which does not formally exclude from the concept of ‘economic operator’ natural or legal persons established in third countries, it might be argued that, in principle, any economic operator from a third country falls within the scope of Directive 2014/24. It is precisely that argument which is supported by the consortium in order to be able to rely on the application of EU law and of certain procedural rights.

I cannot, however, endorse that position. As the ARF, the Austrian Government and the Commission have argued, I consider that economic operators established in third countries do not, in principle, fall within the scope of Directive 2014/24, with the exception of economic operators established in third countries which are signatories to the agreements referred to in Article 25 of that directive. It is therefore necessary to interpret that provision.

According to settled case-law, in interpreting a provision of EU law it is necessary to consider not only its wording but also the objectives of the legislation of which it forms part and the origin of that legislation. (25)

Article 2(1)(10), Article 18(1), Article 25 and Article 49 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, as amended by Commission Delegated Regulation (EU) 2019/1828 of 30 October 2019,

must be interpreted as meaning that economic operators from third countries which are not signatories to the agreements referred to in Article 25 of that directive do not enjoy the rights provided for by that directive and cannot therefore validly rely on an infringement of the principles of equality, non-discrimination, legal certainty and the protection of legitimate expectations laid down by EU law.

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Original language: French.

OJ 2014 L 94, p. 65.

OJ 2019 L 279, p. 25.

OJ 2019 C 271, p. 43.

That is to say, identification of the relevant transitional provision of GEO No 25/2021, the elements which determine the creation of the legal relationship between the consortium and the ARF and those which led to the exclusion of the tenderer, as well as the moment at which the consortium actually became aware of the rule which is alleged to be have been new.

Judgments of 16 June 2015, Gauweiler and Others (C‑62/14, EU:C:2015:400, paragraph 24 and the case-law cited), as well as of 12 January 2023, DOBELES HES (C‑702/20 and C‑17/21, EU:C:2023:1, paragraph 46).

Judgments of 24 November 2020, Openbaar Ministerie (Forgery of documents) (C‑510/19, EU:C:2020:953, paragraph 26 and the case-law cited), and of 21 March 2023, Mercedes-Benz Group (Liability of manufacturers of vehicles fitted with defeat devices) (C‑100/21, EU:C:2023:229, paragraph 53).

Judgment of 1 August 2022, Roma Multiservizi and Rekeep (C‑332/20, EU:C:2022:610, paragraph 64).

See, in that regard, the Opinion of Advocate General Sharpston in Hörmann Reisen (C‑292/15, EU:C:2016:480, point 21).

On the concept of ‘operation’, see, by analogy, judgments of 28 February 2019, SJ (C‑388/17, EU:C:2019:161, paragraph 49), and of 28 October 2020, Pegaso and Sistemi di Sicurezza (C‑521/18, EU:C:2020:867, paragraphs 49 et seq.)

While Directive 2014/24 refers to Annexes 1, 2, 4 and 5 to Appendix I to the GPA, Directive 2014/25 refers to Annexes 3, 4 and 5 to that appendix to the GPA. This appendix contains the list of Parties relevant to the scope of the GPA, which form an integral part of it.

See, by analogy, judgments of 10 November 2011, Norma-A and Dekom (C‑348/10, EU:C:2011:721, paragraph 39), and of 20 September 2018, Rudigier (C‑518/17, EU:C:2018:757, paragraph 44).

See, inter alia, judgments of 10 July 2014, Impresa Pizzarotti (C‑213/13, EU:C:2014:2067, paragraph 31), and of 3 October 2019, Irgita (C‑285/18, EU:C:2019:829, paragraph 31).

See, to that effect, Article 106(1) of Directive 2014/25.

See, to that effect, judgments of 10 July 2014, Impresa Pizzarotti (C‑213/13, EU:C:2014:2067, paragraphs 30 to 33); of 20 September 2018, Rudigier (C‑518/17, EU:C:2018:757, paragraphs 42 and 43); of 19 December 2018, Autorità Garante della Concorrenza e del Mercato – Antitrust and Coopservice (C‑216/17, EU:C:2018:1034, paragraphs 45 and 46); and of 27 November 2019, Tedeschi and Consorzio Stabile Istant Service (C‑402/18, EU:C:2019:1023, paragraphs 29 to 31).

See, by analogy, judgments of 15 October 2009, Hochtief and Linde-Kca-Dresden (C‑138/08, EU:C:2009:627, paragraphs 28 and 29), and of 19 January 2023, CNAE and Others (C‑292/21, EU:C:2023:32, paragraphs 48 to 50).

See Article 106(1) of Directive 2014/25.

See, to that effect, judgment of 7 July 2016, Ambisig (C‑46/15, EU:C:2016:530, paragraphs 21 and 22, and the case-law cited).

See, by analogy, judgment of 7 July 2016, Ambisig (C‑46/15, EU:C:2016:530, paragraph 23).

Order of 6 March 2023, Deutsche Bank (Cartel – Euro interest rate derivatives) (C‑198/22 and C‑199/22, not published, EU:C:2023:166, paragraph 71), and judgment of 22 June 2022, Volvo and DAF Trucks, C‑267/20, EU:C:2022:494, paragraph 77 and the case-law cited). See also, to that effect, judgment of 17 October 2018, Klohn (C‑167/17, EU:C:2018:833, paragraphs 45 and 65).

See Article V of GEO No 25/2021.

The question regarding the applicability of this directive to third country operators appears to me to arise not only for operators established in a third country that has not signed one of the agreements referred to in Article 25 of Directive 2014/24 (as in the dispute in the main proceedings), but also for operators established in a third country which has signed such an agreement and/or agreements, when procurement procedures are not covered by the relevant agreement(s). That interpretation was adopted in recital 10 of Regulation (EU) 2022/1031 of the European Parliament and of the Council, of 23 June 2022, on the access of third-country economic operators, goods and services to the Union’s public procurement and concession markets and procedures supporting negotiations on access of Union economic operators, goods and services to the public procurement and concession markets of third countries (International Procurement Instrument – IPI) (OJ 2022 L 173, p. 1) (‘the IPI Regulation’). That said, the second scenario is not relevant to the dispute in the main proceedings.

Emphasis added.

Judgment of 15 November 2018, Verbraucherzentrale Baden-Württemberg (C‑330/17, EU:C:2018:916, paragraph 23).

Article 43 of Directive 2014/25.

See footnote 23.

See, as regards the freedom to provide services, judgment of 3 October 2006, Fidium Finanz (C‑452/04, EU:C:2006:631, paragraphs 25 and 50). As regards the freedom of establishment, see judgment of 1 April 2014, Felixstowe Dock and Railway Company and Others (C‑80/12, EU:C:2014:200, paragraph 39).

According to that provision, ‘economic operators that, under the law of the Member State in which they are established, are entitled to provide the relevant service, shall not be rejected solely on the ground that, under the law of the Member State in which the contract is awarded, they would be required to be either natural or legal persons.’ (Emphasis added.)

According to that provision, ‘[w]ith regard to suitability to pursue the professional activity, contracting authorities may require economic operators to be enrolled in one of the professional or trade registers kept in their Member State of establishment, as described in Annex XI, or to comply with any other request set out in that Annex.’ (Emphasis added.)

See paragraph 16 of this Opinion.

The EU should continue to seek more balanced and reciprocal conditions in its economic relationships. Public procurement, representing a share of about 14% of the EU Gross Domestic Product, is an important element in this regard. …

The EU actively pursues the opening of procurement opportunities for European companies by advocating reciprocal opening of the procurement markets of third countries. In international negotiations, the EU has supported a wider uptake of quality criteria including environmental, social, labour and innovation aspects and an ambitious opening of international procurement markets.’ (Emphasis added.)