Related Tenderers: Why, When and How Must Contracting Authorities React?

In a series of judgments, the Court of Justice has developed an obligation based on the principle of equal treatment, for contracting authorities to reject tenders from related tenders, if such tenders are not autonomous and independent (i.e. a mandatory ground for exclusion). However, the obligation is based on specific evidence and a discretionary assessment by the contracting authority, thus an automatic exclusion of related tenders, based on a structural criterion, is not allowed. Even though the case-law very clearly spells out that competition law—and thus the voluntary ground for exclusion based on anticompetitive agreements—is not relevant for assessment of tenders from related tenderers, the Court of Justice does not shy away from answering questions from national courts related to competition law in these cases, which unnecessarily complicates the case-law. Focus in the case-law and thus in this article is on the duties of the contracting authorities, however, it is argued that from the little guidance the Court of Justice has provided, the obligations on both contracting authorities and economic operators may be quite demanding. It is concluded that there is still a great deal of uncertainty about the state of law and that it may be presumed that the European Union (EU) legislator will address related tenderers if/when the public procurement directives are revised, not least to solve the lack of transparency for contracting authorities which does not sit well with a mandatory ground for exclusion.