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Impact of a Preselected Candidate’s Restructuring During the Tender Process in Restricted Procedures

Annotation on the Judgment of the Court of Justice of the European Union (Fifth Chamber) of 11 July 2019 in Case C-697/17 Telecom Italia SpA v Ministero dello Sviluppo Economico and Infrastrutture e telecomunicazioni per l’Italia (Infratel Italia) SpA

Julien Gaul, Vera Van Thuyne


Keywords: merger, restricted procedure, principle of equal treatment of tenderers, restructuring, pre-selected candidates

The annotated case deals with the particular situation of a preselected candidate in a restricted procedure who has agreed to acquire another preselected candidate, under a merger agreement concluded between the preselection stage and the tendering stage, but completed after the tendering stage. The absorbing candidate eventually submitted a tender while the absorbed candidate did not. The CJEU decided that there was no reason to state, in view of the circumstances of the case, that the tender should be excluded. According to the Court of Justice, even though the substantive identity of the preselected candidate had changed before submitting the tender, there was no violation of the principle of equality, since the tenderer still complied with the selection criteria. It could also not be presumed that the two preselected candidates had exchanged sensitive information that put the other tenderers at a competitive disadvantage.

Julien Gaul, Lawyer at the Brussels Bar. Vera Van Thuyne, Lawyer at the Brussels Bar. For correspondence: <> and <>.


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