Iveco Orecchia (Public procurement - Components for buses of the Iveco make or equivalent - Proof of equivalence - Opinion) [2022] EUECJ C-68/21

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(Request for a preliminary ruling from the Consiglio di Stato (Council of State, Italy))

(Reference for a preliminary ruling – Public procurement – Directive 2014/25/EU – Articles 60 and 62 – Technical specifications – Components for buses of the Iveco make or equivalent – Proof of equivalence— Directive 2007/46/EC – Article 10(2), Article 19(1), Article 28(1) and Annex IV – EC type-approval – Components – Need for components covered by one of the regulatory acts listed in Annex IV to be EC type-approved)

1. In Italy, two public undertakings responsible for providing urban and interurban passenger transport services in their respective municipalities (Mantua and Brescia) issued calls for tenders for the supply of spare parts for buses. The spare parts could be either originals made by Iveco, the vehicle manufacturer, or equivalents.

2. Following the award of the supply contracts, an unsuccessful tenderer brought an action concerned with whether ‘equivalent spare parts’ had to be EC type-approved in accordance with Directive 2007/46/EC. (2)

3. The Consiglio di Stato (Council of State, Italy) wishes to ascertain first and foremost whether type-approval is necessary for the supply of equivalent spare parts or whether the submission, along with the tender, of a declaration of equivalence to the type-approved original would be sufficient.

‘This Directive establishes a harmonised framework containing the administrative provisions and general technical requirements for approval of all new vehicles within its scope and of the systems, components and separate technical units intended for those vehicles, with a view to facilitating their registration, sale and entry into service within the Community.

This Directive also establishes the provisions for the sale and entry into service of parts and equipment intended for vehicles approved in accordance with this Directive.

Specific technical requirements concerning the construction and functioning of vehicles shall be laid down in application of this Directive in regulatory acts, the exhaustive list of which is set out in Annex IV’.

‘1. This Directive applies to the type-approval of vehicles designed and constructed in one or more stages for use on the road, and of systems, components and separate technical units designed and constructed for such vehicles.

‘For the purposes of this Directive and of the regulatory acts listed in Annex IV, save as otherwise provided therein:

1. “regulatory act” means a separate directive or regulation or a UNECE Regulation annexed to the Revised 1958 Agreement;

2. “separate directive or regulation” means a directive or regulation listed in Part I of Annex IV. This term includes also their implementing acts;

3. “type-approval” means the procedure whereby a Member State certifies that a type of vehicle, system, component or separate technical unit satisfies the relevant administrative provisions and technical requirements;

4. “national type-approval” means a type-approval procedure laid down by the national law of a Member State, the validity of such approval being restricted to the territory of that Member State;

5. “EC type-approval” means the procedure whereby a Member State certifies that a type of vehicle, system, component or separate technical unit satisfies the relevant administrative provisions and technical requirements of this Directive and of the regulatory acts listed in Annex IV or XI;

24. “component” means a device subject to the requirements of a regulatory act and intended to be part of a vehicle, which may be type-approved independently of a vehicle where the regulatory act makes express provisions for so doing;

7. Article 7 (‘Procedure to be followed for the type-approval of systems, components or separate technical units’) reads:

‘1. The manufacturer shall submit the application to the approval authority. Only one application may be submitted in respect of a particular type of system, component or separate technical unit and it may be submitted in only one Member State. A separate application shall be submitted for each type to be approved.

2. The application shall be accompanied by the information folder, the content of which is specified in the separate directives or regulations.

8. Article 10 (‘Specific provisions concerning systems, components or separate technical units’) provides:

2. Member States shall grant a component or separate technical unit EC type-approval in respect of a component or separate technical unit which conforms to the particulars in the information folder and which meets the technical requirements laid down in the relevant separate directive or regulation, as prescribed in Annex IV.

‘1. The manufacturer of a component or separate technical unit, whether or not it is part of a system, shall affix to each component or unit manufactured in conformity with the approved type the EC type-approval mark, required by the relevant separate directive or regulation.

2. Where no EC type-approval mark is required, the manufacturer shall affix at least his trade name or trade mark, and the type number and/or an identification number.

3. The EC type-approval mark shall be in accordance with the Appendix to Annex VII.’

10. Article 28 (‘Sale and entry into service of components and separate technical units’) provides:

‘1. Member States shall permit the sale or entry into service of components or separate technical units if and only if they comply with the requirements of the relevant regulatory acts and are properly marked in accordance with Article 19.

‘Member States shall determine the penalties applicable for infringement of the provisions of this Directive, and in particular of the prohibitions contained in or resulting from Article 31, and of the regulatory acts listed in Part I of Annex IV and shall take all necessary measures for their implementation. …’

12. Annex IV (‘List of requirements for the purpose of EC type-approval of vehicles’) comprises two parts: one sets out a list of ‘regulatory acts’ (separate directives and regulations) and the other, after defining what the UNECE Regulations are [‘the ones to which the Community has adhered as a Contracting Party to the United Nations Economic Commission for Europe “Revised 1958 Geneva Agreement” by virtue of Council Decision 97/836/EC [of 27 November 1997 (OJ 1997 L 346, p. 78)], or subsequent Council decisions as referred to in Article 3(3) of that Decision’], lists them.

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

2. Technical specifications shall afford equal access of economic operators to the procurement procedure and shall not have the effect of creating unjustified obstacles to the opening up of public procurement to competition.

3. Without prejudice to mandatory national technical rules, to the extent that they are compatible with Union law, the technical specifications shall be formulated in one of the following ways:

(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 entities 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.

4. Unless justified by the subject matter of the contract, technical specifications shall not refer to a specific make or source, or to a particular process which characterises the products or services provided by a specific economic operator, or to trade marks, patents, types or a specific origin or production with the effect of favouring or eliminating certain undertakings or certain products. Such reference shall be permitted, on an exceptional basis, where a sufficiently precise and intelligible description of the subject matter of the contract pursuant to paragraph 3 is not possible. Such reference shall be accompanied by the words “or equivalent”.

5. Where a contracting entity uses the option of referring to the technical specifications referred to in point (b) of paragraph 3, it shall not reject a tender on the ground that the works, supplies or services tendered for do not comply with the technical specifications to which it has referred, once the tenderer proves in its tender by any appropriate means, including the means of proof referred to in Article 62, that the solutions proposed satisfy in an equivalent manner the requirements defined by the technical specifications.

In its tender, the tenderer shall prove by any appropriate means including those referred to in Article 62, that the supplies, service or work in compliance with the standard meets the performance or functional requirements of the contracting entity.’

14. Article 62 (‘Test reports, certification and other means of proof’) states:

‘1. Contracting entities may require that economic operators provide a test report from a conformity assessment body or a certificate issued by such a body as means of proof of conformity with requirements or criteria set out in the technical specifications, the award criteria or the contract performance conditions.

Where contracting entities require the submission of certificates drawn up by a specific conformity assessment body, certificates from equivalent other conformity assessment bodies shall also be accepted by the contracting entities.

2. Contracting entities shall accept other appropriate means of proof than those referred to in paragraph 1, such as a technical dossier of the manufacturer where the economic operator concerned had no access to such certificates or test reports referred to in paragraph 1, or no possibility of obtaining them within the relevant time limits, provided that the lack of access is not attributable to the economic operator concerned and provided that the economic operator concerned thereby proves that the works, supplies or services meet the requirements or criteria set out in the technical specifications, the award criteria or the contract performance conditions.

15. APAM Esercizio SpA, an undertaking operating in the urban and interurban public transport sector in Mantua (Italy), published a notice (4) advertising an open tender procedure for the biannual supply of ‘original Iveco spare parts or equivalents for buses’ (CIG 7602877C91), the value of the contract having been estimated at EUR 710 000.

16. Article 5.1 (‘Typology of the spare parts’) of the technical specifications distinguished between:

— ‘Spare parts intended for vehicle safety and environmental protection’. So far as these are concerned, being ‘components tested for type-approval with the vehicle or as separate technical units, only original components or equivalents legally approved in accordance with national legislation (the Highway Code) and Community legislation (Directive 98/14/EEC, Directive 2007/46 and Annex IV thereto) [should] be supplied’.

— ‘Equivalent spare parts’, defined as being ‘spare parts (parts, components, equipment) of a quality equivalent to that of the original, or parts of a quality at least equal to that of the components used for vehicle assembly, produced according to the technical specifications and production standards of the manufacturer of the original spare part’.

17. That article went on to say that, ‘in accordance with EU legislation and the provisions of [national] law in force, the aforementioned [equivalent] spare parts may be manufactured by any undertaking able to certify at any time, in accordance with the rules in force (UNI-CEI-ENISO/IEC 17050), that the quality of the spare parts is consistent with that of the original spare parts used in the assembly of the motor vehicles in question’.

18. Article 5.2 (‘Certifications and declarations’) of the technical specifications stated that the tenderer ‘shall submit in the course of the tender procedure, in respect of the equivalent spare part proposed, a certificate of conformity or a specific type-approval for the replacement component, provided by the manufacturer, the type-approval body or the laboratory for tests certified according to ISO 45000 standard’.

19. Article 15 (‘Administrative documentation’) of the tender document stipulated, in point (d), the submission of ‘… the appropriate technical documentation for each equivalent spare part proposed, accompanied by: … a product type-approval certificate, where mandatory, issued by the manufacturer of the equivalent spare part proposed; a certificate as to the equivalence of the product proposed in relation to the relevant original (or first-fit) product, in that it is a perfect substitute requiring no adaptation of the spare part, the unit or the system into which it is to be fitted, and performance characteristics ensuring the product’s regular functionality and safety in the system, as well as an identical lifetime, issued by the producer of the equivalent spare part proposed’.

20. Three undertakings participated in the procedure, including Iveco Orecchia and Veneta Servizi International Srl unipersonale, which was awarded the contract.

21. Brescia Trasporti SpA, an undertaking operating in the urban and interurban public transport sector in Brescia (Italy), published a notice (5) advertising a procedure for the award of a contract, with a basic value estimated at EUR 2 100 000, for ‘the supply of spare parts for Iveco buses fitted with an Iveco engine – CIG 7680570EDB’.

22. Article 1 (‘Technical definitions’) of the document containing the technical specifications for the call for tenders provided for three types of spare part: ‘original spare parts’, ‘first-fit original spare parts’ and ‘equivalent spare parts’.

23. According to Article 1(3), ‘spare parts of a quality equivalent to that of the original are parts the quality of which is at least equal to that of the components used in the manufacture of the vehicle and which have been produced in accordance with the spare part manufacturer’s own technical specifications and production standards’.

24. Article 2 (‘Characteristics of the spare parts to be supplied …’) of that same document stated that the tenderer was to indicate in respect of each replacement whether it wished to supply an original spare part, a first-fit spare part or an equivalent.

25. Article 3 (‘Documentation to be submitted with the tender’) required, so far as concerns ‘equivalent quality spare parts’, that the tender be accompanied, on pain of exclusion, by ‘a certificate from the spare part manufacturer attesting, in respect of each spare part:

— that its quality is of a level high enough to ensure that its use will not compromise the reputation of the authorised network;

— that it is perfectly interchangeable with the original spare parts, … and requires no adaptation of the spare part, the unit or the system onto which it is to be fitted …’.

26. Article 3 went on to say that ‘the supplier shall also submit the product type-approval certificate, where this is mandatory. As regards break linings, brake discs and drums, the supplier shall, in addition to the aforementioned documents, provide a certificate attesting to Community type-approval ECE R90’.

27. Tenders were submitted by Iveco Orecchia and VAR Srl, which was awarded the contract.

28. Iveco Orecchia challenged the two award decisions before the Tribunale amministrativo regionale per la Lombardia – sezione staccata di Brescia (Regional Administrative Court, Lombardy, Brescia Section), arguing in essence that:

— the successful tenderers had not proved, by certificate or any other means, that the components were type-approved, as required by the contract documents and relevant legislation;

— in the alternative, the tender documents were unlawful, inasmuch as they did not require, where necessary, the provision of a type-approval certificate issued by a competent authority, or, in any event, proof of the existence of such type-approval.

29. The court of first instance dismissed the two actions brought by Iveco Orecchia in judgments of 25 June and 26 August 2019, against which that company brought appeals before the Consiglio di Stato (Council of State). (6)

— The original Iveco spare parts forming the subject of the supply contract are type-approved along with the vehicle.

— Spare parts subject to type-approval, in particular those capable of compromising vehicle safety and environmental performance, may be sold only where they have been type-approved and authorised by the type-approval authority.

— Annex IV to Directive 2007/46 contains a specific and detailed list of the categories of component for which there is relevant and also specific legislation relating to their type-approval.

— The technical specifications required the submission of a type-approval certificate where necessary. (8)

— It falls to be determined, in the light of the foregoing factors, whether non-original components made by a manufacturer of such components need to be type-approved.

— The applicable legislation, that is to say Directive 2007/46 and the national transposing provisions, appears to impose the same type-approval obligations on both vehicle manufacturers (which type-approve vehicles as a whole and, in so doing, thus automatically type-approve each of the parts thereof) and component manufacturers.

— Thus, if a part or component is subject to the provisions of a regulatory act (referred to in Annex IV to Directive 2007/46), it may be placed on the market only if it has been type-approved.

— However, it could also be argued, as the respondent undertakings contend, that offers of spare parts as provided for in the typology of the aforementioned Annex IV which are made by parties other than vehicle manufacturers must not be required to provide the same technical documents evidencing testing as are required in the case of original type-approved components. From that point of view, an adequate alternative to such documentation might be a generic certificate of equivalence declaring the spare part to be compliant with the technical specifications laid down in the tender documentation and the solutions proposed to be consistent with the requirement set out in that documentation.

31. It is against that background that the Consiglio di Stato (Council of State) has made a reference for a preliminary ruling on two questions, of which I shall look only at the first, as instructed by the Court. This is worded as follows:

‘Is it compatible with EU law, and in particular with the provisions of Directive 2007/46/EC (laid down in Articles 10, 19 and 28 of that directive) and the principles of equal treatment and impartiality, open competition and sound administration, for – with specific reference to the supply through public procurement of replacement parts for buses intended for public service – a contracting authority to be allowed to accept replacement parts intended for a particular vehicle, made by a manufacturer other than the vehicle manufacturer, and therefore not approved together with the vehicle, falling into one of the categories of components covered by the technical rules listed in |Annex IV to that directive (List of requirements for the purpose of EC type-approval of vehicles) and put to tender without being accompanied by the type-approval certificate and without any information on the actual type-approval, and indeed on the assumption that type-approval is not needed, as only a declaration of equivalence to the type-approved original made by the tenderer is sufficient?’

32. The requests for a preliminary ruling were registered at the Court of Justice on 3 and 11 February 2021 respectively.

33. Written observations were lodged by Iveco Orecchia, Brescia Trasporti SpA, Var Srl, Veneta Servizi International Srl unipersonale, Di Pinto & Dalessandro SpA, APAM Esercizio SpA, the Italian Government and the European Commission. With the exception of Di Pinto & Dalessandro SpA, all of these parties attended the hearing held on 10 March 2022.

34. Although the referring court seeks an interpretation only of Articles 10, 19 and 28 of Directive 2007/46, it cannot be overlooked that the disputes relate to supply contracts that were awarded by means of a procedure subject to the requirements of Directive 2014/25.

35. After all, as the Commission notes and as was highlighted at the hearing, the contested awards were each made by an entity operating in the urban and interurban transport sector, the rules governing which are contained in Directive 2014/25.

36. Both the orders for reference and some of the written observations cite Directive 2014/24/EU. (9) However, I do not consider this to be an appropriate reference provision.

37. As I have already said, the subject matter of the contracts put out to tender in these cases was the supply of spare parts for buses used to provide public transport services. Such contracts are subject to Directive 2014/25, since they are instrumental to ‘activities relating to the provision or operation of networks providing a service to the public in the field of transport by … bus’, as referred to in Article 11 thereof.

38. Transport services are explicitly included in the scope of Directive 2014/25, according to Article 1(2) thereof.

39. In any event, the articles of Directive 2014/25 which are relevant here (Articles 60 and 62) are equivalent to their counterparts in Directive 2014/24 (Articles 42 and 44).

40. The point of uncertainty raised by the Consiglio di Stato (Council of State) is clearly defined. It wishes to ascertain whether a contracting authority can accept spare parts for buses where, cumulatively:

— Those components fall into one of the categories listed in Annex IV to Directive 2007/46.

— They were made by a manufacturer other than the bus manufacturer, which is to say that they were not type-approved together with the bus.

— They are not accompanied by a type-approval certificate or any other indication of actual type-approval, it being assumed that such type-approval is not necessary and a declaration of equivalence (to the original component) by the tenderer itself is sufficient.

41. In order to clarify that point of uncertainty, I shall first analyse the EU rules on the type-approval of motor vehicles and of the systems, components and separate technical units intended for such vehicles. Next, I shall consider the differences between type-approval and equivalence, and, finally, I shall look at the impact of Directive 2014/25 in these cases.

42. Directive 2007/46 seeks to ‘replace the Member States’ approval systems with a Community approval procedure based on the principle of total harmonisation’. (10)

43. Article 1 of Directive 2007/46, in referring to the subject matter of that directive, mentions the establishment of ‘a harmonised framework containing the administrative provisions and general technical requirements for approval’ not only of the new vehicles within its scope but also of the systems, components and separate technical units intended for those vehicles.

44. That framework establishes ‘… the provisions for the sale and entry into service of parts and equipment intended for vehicles approved in accordance with this Directive’.

45. Directive 2007/46 introduces the concept of ‘type-approval’, (11) as distinct from individual approval. Type-approval may be either ‘national’, in which case its validity is restricted to the territory of a Member State, or an ‘EC type-approval’. The latter certifies compliance with ‘the relevant administrative provisions and technical requirements of [the] Directive and of the regulatory acts listed in Annex IV or XI’. (12)

46. As I have already noted, the question referred for a preliminary ruling refers only to the categories of components (13) appearing in the regulatory acts (14) listed in Annex IV to Directive 2007/46.

47. Components can be EC type-approved either together with the new vehicle or independently. (15) In accordance with Article 3(24) of Directive 2007/46, a component intended to be part of a vehicle may be type-approved independently of that vehicle.

48. EC type-approval for separate components is granted in accordance with a procedure that is governed by Article 7 of Directive 2007/46 and the specific provisions of which are contained in Article 10 thereof. According to Article 10(2), ‘Member States shall grant … EC type-approval in respect of a component … which meets the technical requirements laid down in the relevant separate directive or regulation, as prescribed in Annex IV’.

49. Albeit not quite as clearly as might be hoped for, Article 10(2), Article 19 and Article 28(1) of Directive 2007/46 support the inference that the vehicle components listed in Annex IV thereto are in principle subject to type-approval.

50. It is thus significant that, in accordance with Article 28(1) of Directive 2007/46, Member States may permit the sale or entry into service only of type-approved components, that is to say components which ‘comply with the requirements of the relevant regulatory acts [as set out in Annex IV] and are properly marked in accordance with Article 19’.

51. The – only – instrument selected by Directive 2007/46 for the purposes of establishing that vehicle components (whether original or otherwise) comply with the technical requirements laid down in the regulatory acts referred to in Annex IV is type-approval itself. This, to my mind, is the most appropriate interpretation of Article 10(2) of that directive, read in the light of the regulatory acts referred to in Annex IV thereto.

52. It may be, however, (as the VAR pointed out in its written observations and as the Commission and the Italian Government confirmed at the hearing), that, in accordance with those same regulatory acts, a particular component is exempt from the type-approval requirement. In that event, there would be no obligation to provide the type-approval certificate which must of necessity be submitted for the other components listed in Annex IV.

53. It is that possibility which is provided for in Article 19(2) of Directive 2007/46: ‘where no EC type-approval mark is required, the [component] manufacturer shall affix at least his trade name or trade mark, and the type number and/or an identification number’.

54. Other than in that situation, therefore, the components referred to in any of the regulatory acts listed in Annex IV to Directive 2007/46 may not be placed on the market if they have not first been granted EC type-approval. Without it, as I have said, their sale and entry into service are not permitted.

55. That condition is linked to vehicle traffic safety requirements necessitating type-approval for (some but not all) spare parts. (16) EC type-approval thus becomes a precondition for suitability that is applicable not only to public-procurement-based channels of introduction but also to any form of placing spare parts on the market.

56. Whether the components are manufactured by the trade mark proprietor or by a spare parts producer is immaterial, as is whether they are to be fitted to a new or a used vehicle. There cannot therefore be said to be any discrimination to the detriment of manufacturers of equivalent spare parts: where components require EC type-approval, equivalents and originals are both subject to the same rules. (17)

57. On that premiss, it must be stated in reply to the first part of the first question referred that:

— In principle, a contracting authority may not accept replacement components covered by the regulatory acts listed in Annex IV to Directive 2007/46 without a type-approval certificate, where such acts require type-approval for those components.

— It is for the referring court to determine, in the light of the specific components that were the subject of the call for tenders, whether they were subject to compulsory type-approval under the aforementioned regulatory acts.

58. In the second part of the first question, the referring court wishes to ascertain whether, in the circumstances which it describes, a declaration of equivalence to the type-approved original, issued by the tenderer itself, would be sufficient.

59. The concepts of type-approval and equivalence have meanings specific to them and not identical to each other:

— Type-approval is a control mechanism used by an authority, a body or an entity acting under their auspices to certify that a vehicle (or, in this case, the components thereof) complies with certain regulatory provisions and technical requirements.

— (A declaration of) equivalence is simply an objective comparison of certain products, whether or not they have previously been type-approved.

60. Type-approval is, as I have already mentioned, a condition of placing on the market vehicle components that must comply with a number of very detailed technical specifications. It is based on mandatory and, in the case of vehicles to be used on the public highway, unavoidable safety requirements.

61. Equivalence (in this case, that between spare parts produced by different manufacturers that perform the same function) has more to do with the similar or dissimilar characteristics of the products compared.

62. Proof of either status is not interchangeable with that of the other. A type-approved component may not be equivalent to the component required by the contracting authority. Conversely, a non-type-approved component may be materially equivalent to the originals provided for in the technical specifications of the call for tenders.

63. It might be thought that, if two spare parts, one type-approved and the other not, are of equivalent quality and interchangeable, it is because they both meet the technical requirements that must be fulfilled in order to pass the type-approval test. To my mind, however, Directive 2007/46 does not permit that presumption. Where considerations of road safety and environmental protection are present, each prototype must be tested by a third party (the authority or body granting type-approvals in accordance with specific procedures and tests), unless a regulatory act deems this unnecessary.

64. In my view, replacement components are not exempt from type-approval testing (and subject only to a declaration of equivalence) solely because they are to be fitted to a used car. The fact that they are intended to be incorporated (by definition, retrospectively) into a used car does not automatically make them safer, which is what some of the parties to the dispute appear to think.

65. The clauses governing the two awards at issue in the present disputes were informed by that principle. In the case of equivalent spare parts subject to type-approval, tenderers were required, on pain of exclusion of their tender, to submit a type-approval certificate.

66. It is not therefore possible, in relation to that particular type of spare part, to accept as an alternative to the submission of type-approval certificates a mere unilateral declaration by the tenderer as to the equivalence of spare parts to original components.

67. Accordingly, so far as concerns replacement components subject to compulsory type-approval, a declaration of equivalence to the type-approved original issued by the tenderer is not sufficient.

68. It remains to be examined whether that interpretation of Directive 2007/46 is compatible with the principles and the provisions of Directive 2014/25.

69. Contracting authorities are required to define, in the tender documents they publish, the characteristics of the works, services or supplies of goods which they propose to obtain by way of public procurement. Those characteristics may include the ‘technical specifications’ of the products or services concerned.

70. As I have said previously, ‘a biased description of those technical specifications may, at the very least, amount to a significant “barrier to entry” for certain tenderers and, in extreme cases, predetermine (including fraudulently) the final choice of successful tenderer if characteristics of products or services are stipulated which that tenderer alone is in a position to supply’. (18)

71. The concern to avoid irregular practices and the aim of ‘allow[ing] public procurement to be open to competition as well as to achieve objectives of sustainability. To that end, it should be possible to submit tenders that reflect the diversity of technical solutions, standards and technical specifications in the marketplace, including those drawn up on the basis of performance criteria linked to the life cycle and the sustainability of the production process of the works, supplies and services’. (19)

72. That goal is reflected in Article 60(2) of Directive 2014/25: ‘Technical specifications shall afford equal access of economic operators to the procurement procedure and shall not have the effect of creating unjustified obstacles to the opening up of public procurement to competition’.

73. As a rule, then, ‘technical specifications should be drafted in such a way as to avoid artificially narrowing down competition through requirements that favour a specific economic operator by mirroring key characteristics of the supplies, services or works habitually offered by that economic operator. Drawing up the technical specifications in terms of functional and performance requirements generally allows that objective to be achieved in the best way possible’. (20)

74. By way of exception, however, Article 60(4) of Directive 2014/25 allows reference to be made ‘to trade marks, patents, types or a specific origin or production’. Nonetheless, that possibility, which favours certain producers, is mitigated by the requirement that any such reference be accompanied by the words ‘or equivalent’. (21)

75. It is consistent with the principles of Article 60(2) of Directive 2014/25 that paragraph 5 of that same article and Article 62(2) should provide for the possibility of demonstrating compliance with the technical specifications, with a view to proving the equivalence of spare parts, in an open and flexible way, ‘which means that the use of any appropriate means is permitted’. (22)

76. In this case, the contracts were for the supply of spare parts, which could be either Iveco originals or equivalents. However, in the case of spare parts subject to the requirement of type-approval, the certificate attesting to such type-approval could not be dispensed with, since, without it, those spare parts (be they originals or equivalents) could not be offered by a tenderer, since they would fail to meet an unavoidable precondition for being placed on the market.

77. Directive 2014/25 lays down the rules governing proof of compliance with the technical specifications without referring to the type-approval of the goods being supplied. This is only logical given that whether or not type-approval is required will depend on the type of supply to be procured, (23) and the sectors covered by that directive are very diverse.

78. Nonetheless, Directive 2014/25, however much it is driven by the goal of opening up public procurement to greater competition, cannot dispense with the mandatory requirements imposed by other provisions of EU law.

79. This is recognised in recital 56 of Directive 2014/25, which states that ‘nothing in this Directive should prevent the imposition or enforcement of measures necessary to protect … security, health, human and animal life, the preservation of plant life or other environmental measures’.

80. Directive 2014/25, therefore, ‘should not prevent’ the application of Directive 2007/46 inasmuch as the latter regulation seeks to ‘… ensure a high level of road safety, health protection, environmental protection, energy efficiency and protection against unauthorised use’. (24) To the extent that Directive 2007/46 requires, with a view to attaining those very objectives, that certain vehicle spare parts be type-approved, that requirement becomes unavoidable and cannot be circumvented by recourse to Directive 2014/25.

81. As the Commission submits, (25) that same principle informs other rules relating to the functioning of the internal market whereby the EU legislature has pointed out the fact that the lex specialis (such as, for example, that governing the movement of motor vehicles) takes precedence over the general provisions on the free movement of goods.

82. In any event, the obligation to type-approve spare parts is not incompatible with opening up public procurement to competition. In order to safeguard competition, Article 38(1) of Directive 2007/46 makes it easier for competitors of the vehicle manufacturer to access the production of separate components. The vehicle manufacturer must provide its competitors with the relevant particulars, ‘including, as the case may be, drawings specifically listed in the annex or appendix to a regulatory act that are necessary for EC type-approval of [separate] components’.

83. In the light of the foregoing, I suggest that the Court’s answer to the first question referred for a preliminary ruling by the Consiglio di Stato (Council of State, Italy) be as follows:

‘Articles 10(2), 19(1) and 28(1) of Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles must be interpreted as meaning that, where a call for tenders for a public contract for the supply of replacement components for buses to be used to provide public transport services permits offers of equivalent spare parts the type-approval of which is mandatory under one of the regulatory acts listed in Annex IV to the aforementioned directive, tenderers must submit the corresponding EC type-approval certificate, the submission of a declaration of equivalence alone being insufficient for these purposes’.

2 Directive of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (Framework Directive) (OJ 2007 L 263, p. 1). This was replaced by Regulation (EU) 2018/858 of the European Parliament and of the Council of 30 May 2018 on the approval and market surveillance of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles, amending Regulations (EC) No 715/2007 and (EC) No 595/2009 and repealing Directive 2007/46 (OJ 2018 L 151, p. 1). Regulation 2018/858 is not applicable, ratione temporis, to these disputes.

3 Directive 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).

4 Contract notice published in the supplement to the European public procurement OJ of 21 August 2018 (under reference 2018/S 159-365946).

5 Contract notice published in the supplement to the European public procurement OJ of 13 November 2018 (under reference 2018/S 218-500319).

6 In the judgment of 26 August 2019, the court of first instance dismissed the first ground of the action brought by Iveco Orecchia, on the ground, inter alia, that it had failed to indicate exactly which spare parts offered by Brescia Trasporti SpA should be type-approved.

8 The order for reference in Case C‑84/21 states that, ‘in the call for tenders at issue, the technical specifications required the submission of the type-approval certificate where necessary, and, in the case of equivalent brake discs and drums, referred expressly to Article 34 of Directive 2007/46 (which in turn refers to the UNECE Regulations laid down for the purposes of EC type-approval’.

9 Directive 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).

11 ‘The procedure whereby a Member State certifies that a type of vehicle, system, component or separate technical unit satisfies the relevant administrative provisions and technical requirements’.

14 Article 3(1) of Directive 2007/46 defines ‘regulatory act’ as ‘a separate directive or regulation or a UNECE [United Nations Economic Commission for Europe] Regulation annexed to the Revised 1958 Agreement’ [‘to which the Community has adhered as a Contracting Party to the United Nations Economic Commission for Europe “Revised 1958 Geneva Agreement” by virtue of Council Decision 97/836/EC’ (Part II of Annex IV to the Framework Directive)]. In accordance with Article 34(1) of Directive 2007/46, ‘UNECE Regulations to which the Community has acceded and which are listed in Part I of Annex IV … are part of the EC type-approval of a vehicle in the same way as the separate directives or regulations’.

15 In these disputes, the spare parts for buses are not type-approved together with the vehicle itself but separately from it.

16 Accordingly, Article 46 of Directive 2007/46 requires Member States to determine ‘the penalties applicable for infringement of the provisions of this Directive …, and of the regulatory acts listed in Part I of Annex IV and [to] take all necessary measures for their implementation’.

17 In its written observations (p. 15 of the original Italian), VAR states that ‘it has never maintained that … type-approval for a spare part equivalent to a component subject to compulsory type-approval “would not be necessary”, or that, in such circumstances, type-approval could be replaced by a “declaration of equivalence to the type-approved original submitted by the tenderer”’.

21 In point 33 et seq. of the Opinion in VAR and ATM (C‑14/17, EU:C:2018:135), I examined at greater length the Court’s case-law on ‘the inclusion, in invitations to tender for public contracts or in the relevant contract documents, of technical specifications which refer to a specific trade mark’.

22 Judgment of 12 July 2018, VAR and ATM (C‑14/17, EU:C:2018:568, paragraph 33).

23 Many supply contracts will not be subject to EU rules governing type-approval of the products concerned. In the present cases, on the other hand, since tenders were sought for spare parts for vehicles forming the subject of a harmonised framework, the contracts in question are bound by rigorous legislation that makes type-approval mandatory unless exempted, in the case of certain spare parts, by the relevant regulatory act in Annex IV to Directive 2007/46.

25 Paragraph 42 and footnote 37 of its written observations, in which it cites recital 5 of Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93 (OJ 2008 L 218, p. 30). According to that recital, ‘the framework for market surveillance established by this Regulation should complement and strengthen existing provisions in Community harmonisation legislation relating to market surveillance and the enforcement of such provisions. However, in accordance with the principle of lex specialis, this Regulation should apply only in so far as there are no specific provisions with the same objective, nature or effect in other existing or future rules of Community harmonisation legislation. Examples can be found in the following sectors: drug precursors, medical devices, medicinal products for human and veterinary use, motor vehicles and aviation. The corresponding provisions of this Regulation should not therefore apply in the areas covered by such specific provisions’ (emphasis added).

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Iveco Orecchia (Public procurement - Components for buses of the Iveco make or equivalent - Proof of equivalence - Opinion) [2022] EUECJ C-68/21_O (05 May 2022) URL: http://www.bailii.org/eu/cases/EUECJ/2022/C6821_O.html Cite as: EU:C:2022:365, ECLI:EU:C:2022:365, [2022] EUECJ C-68/21_O

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