Last month, the European Court of Justice (“ECJ”) ruled that Austria’s direct award of service contracts for the printing of chip passports, emergency passports, residence permits, identity cards, credit card-sized driving licences and credit card-sized vehicle registration certificates without an EU-wide call for tenders constituted a breach of its obligations under EU public procurement law.
Despite Austria’s assertions that the service contracts in question require special security measures and that a derogation from the provisions of EU law were thus necessary to protect its essential security interests, the ECJ considered that the direct award to a formerly State-owned undertaking (which has now been privatised), was in breach of EU public procurement law.
The ECJ noted that a Member State which wishes to avail itself of these derogations must establish that the protection of such interests could not have been attained within a competitive tendering procedure. Among others, the ECJ observed that it would have been possible to require the contractual partner chosen in a procurement procedure to accept security controls, visits or inspections at its premises, or to comply with technical requirements as regards confidentiality in the performance of obligations.
The ECJ also made an interesting point in that the requirement to impose an obligation of confidentiality does not in itself prevent the use of a competitive tendering procedure, and that the confidential nature of data can be protected by a duty of secrecy without it being necessary to contravene public procurement procedures.
Case cited: Case C-187/16, Commission v Austria ECLI:EU:C:2018:194