The judgment concerns the situation of an operator who did not submit a tender because it did not satisfy a condition for participation. Initially, the operator challenged the lawfulness of this condition in the contract notice. In vain, however, because the action was dismissed at first instance. Thereafter this dismissal was upheld by the Italian Council of State, which made the exclusion of the operator final (“res iudicata”) even before the public procurement contract was awarded to one of its competitors.

After the award of the contract, the operator informed the contracting authority that the tenderers were all convicted for bid-rigging infringements by the Italian Competition Authority. According to the operator, this conviction showed grave professional misconduct by its competitors. The operator thus attempted to encourage the contracting authority to annul the award decision and to subsequently launch a new procedure in which the operator concerned could participate once more. The contracting authority, however, did not revoke its award decision. This decision was then challenged again by the operator.

According to the CJEU, in this particular situation, the operator cannot be considered as a "person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement" within the meaning of Article 1(3) of Directive 89/665.  Therefore, the Italian procedural rule that denied the operator an interest to challenge the final award decision in these circumstances, was held by the CJEU not to go against Article 1(3) of Directive 89/665. The fact that the operator had taken steps to satisfy the condition for participation in the meantime and would be able to submit a tender if the procurement procedure were to be cancelled and re-organized was deemed irrelevant.

This situation is different from the one on which the Court has already ruled in the past on the question of the existence of a legitimate interest. Indeed, in the Fastweb and PFE cases, the tenderers were not excluded from the procedure. They were thus still in the running for obtaining the contract, which implies that if the tender of another tenderer were to be excluded, the contract could still be awarded to them. In this case, the exclusion of the operator had become final, which means that the contract could not in any case be awarded to it.

This case once again reminds us of the importance of timely and strategically correct challenging of the various successive but crucial decisions in a tender procedure. Indeed, in our view, the outcome of this case might have been different if the operator, even though he knew it did not meet the criteria, had submitted a tender.