Analysis: “Thou shalt not discriminate once again in EU public procurement law (Case C-6/20)” by Piotr Bogdanowicz
“Thou shalt not discriminate.” As aptly noted by Advocate General Wahl in his Opinion in Austria v Germany (C-591/17), if it were possible to condense the entire body of EU law into a few commandments, the prohibition of discrimination, in particular discrimination based on nationality, would probably be one of the first. Thus, it does not come as a surprise that public procurement directives require contracting authorities to treat economic operators equally and non-discriminatorily, as well as to act in a transparent way.
In the case at hand (Sotsiaalministeerium, C-6/20), the Estonian Court of Appeal asked the Court of Justice about the compatibility with Estonian law of the requirement, set forth in Article 2 of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, along with Article 46 thereof, pursuant to which any economic operator wishing to take part in a public contract may be requested to prove its enrolment, as prescribed in his Member State of establishment, on one of the professional or trade registers or to provide a declaration on oath or a certificate (as described in Directive 2004/18). Under this legislation, a contracting authority could require, as a criterion for qualitative selection of tenderers, that tenderers hold a registration certificate and/or approval in Estonia, even where a tenderer already has a registration certificate and/or approval in another Member State.
The Court of Justice held that any tenderer must be able to prove its suitability to perform a public contract by means of documents, such as a certificate or proof of enrolment on one of the professional or trade registers, issued by the competent authorities of the Member State in which it is established. The Court recalled that such interpretation is borne out by several provisions of Directive 2004/18 and emphasised the importance of the principle of mutual recognition of qualifications at the stage of the selection of tenderers. It also aptly referred to its case law concerning free movement of services and the effectiveness of Article 56 TFEU, the purpose of which is to abolish restrictions on the freedom to provide services of persons not established in the Member State in which the service is to be provided.
The Estonian Government defended the national legislation by stating that the performance of the public contracts at issue required the use of an intermediate warehouse in which foodstuffs could be stored or a means of transport situated in Estonia, allegedly in line with Regulation 852/2004 on the hygiene of foodstuffs, but it was doomed to failure. The Court of Justice noted that one of the objectives of Regulation 852/2004 is to achieve the free movement of foodstuffs within the European Union. This objective would be affected if food business operators were required to register or obtain an operating licence in every Member State in which they transport or store their foodstuffs. In particular, that holding by an economic operator a registration certificate or approval issued by one Member State constitutes a presumption of its ability to ensure in another Member State the activity of supplying and distributing foodstuffs.
Finally, the Court of Justice dispelled doubts of the Estonian court whether a contracting authority may rely on the principle of the protection of legitimate expectations, in the context of a public procurement procedure, when a tender documentation, including the requirement at hand, has already been approved twice by the auditors of the Estonian Ministry of Finance. The Court consciously referred to its case law and held that the concept that a State is to be viewed as a single entity precludes, in principle, a national authority from relying on the principle of EU law of legitimate expectations in the context of a dispute between that authority and another component of that State.
To sum up, the judgment in C-6/20 did nothing but confirm the application of general principles of EU law in public procurement procedure. Contrary to what was suggested by the referring Court, the interpretation of relevant provisions of Directive 2004/18 was quite apparent.
Dr hab. Piotr Bogdanowicz is an Associate Professor of EU Law and EU Procurement Law at Warsaw University.