Provisional text
JUDGMENT OF THE COURT (Third Chamber)
9 July 2026 (*)
( Reference for a preliminary ruling – Public procurement – Directive 2014/24/EU – Article 82 – Procedure relating to a design contest – No prior hearing of candidates – Protection of anonymity – Right to be heard )
In Case C‑888/24,
REQUEST for a preliminary ruling under Article 267 TFEU from the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal), made by decision of 28 November 2024, received at the Court on 20 December 2024, in the proceedings
Adão da Fonseca-Engenheiros Consultores, Lda
v
Metro do Porto, S.A.,
Betar Consultores, Lda,
THE COURT (Third Chamber),
composed of C. Lycourgos (Rapporteur), President of the Chamber, O. Spineanu‑Matei, S. Rodin, N. Piçarra and N. Fenger, Judges,
Advocate General: A. Biondi,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
– Adão da Fonseca-Engenheiros Consultores, Lda, by F. Vellozo Ferreira, advogado,
– Metro do Porto, S.A., by D. Castro Neves, P. Fernández Sánchez, M. Gorjão-Henriques and A. Saavedra, advogados,
– the Portuguese Government, by P. Barros da Costa and F. Batista, acting as Agents,
– the European Commission, by A. Biolan, I. Melo Sampaio and G. Wils, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 26 March 2026,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Articles 80 and 82 of Directive 2014/24/EU 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), as amended by Commission Delegated Regulation (EU) 2019/1828 of 30 October 2019 (OJ 2019 L 279, p. 25) (‘Directive 2014/24’).
2 The request has been made in proceedings between Adão da Fonseca-Engenheiros Consultores, Lda (‘the applicant company in the main proceedings’), of the one part, and Metro do Porto, S.A. (‘the contracting authority’) and Betar Consultores, Lda, of the other, concerning the lawfulness of a design contest procedure following which the design of the applicant company in the main proceedings was not selected.
Legal context
European Union law
Directive 2014/24
3 Article 1(1) of Directive 2014/24 provides:
‘This Directive establishes rules on the procedures for procurement by contracting authorities with respect to public contracts as well as design contests, whose value is estimated to be not less than the thresholds laid down in Article 4.’
4 Article 2(1) of that directive provides:
‘For the purposes of this Directive, the following definitions apply:
…
(21) “design contests” means those procedures which enable the contracting authority to acquire, mainly in the fields of town and country planning, architecture and engineering or data processing, a plan or design selected by a jury after being put out to competition with or without the award of prizes;
…’
5 According to Article 4 of that directive:
‘This Directive shall apply to procurements with a value net of value-added tax (VAT) estimated to be equal to or greater than the following thresholds:
…
(b) EUR 139 000 for public supply and service contracts awarded by central government authorities and design contests organised by such authorities; …
(c) EUR 214 000 for public supply and service contracts awarded by sub-central contracting authorities and design contests organised by such authorities; …
…’
6 Article 7 of that directive states:
‘This Directive shall not apply to public contracts and design contests which, under Directive 2014/25/EU [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)], are awarded or organised by contracting authorities exercising one or more of the activities referred to in Articles 8 to 14 of that Directive and are awarded for the pursuit of those activities, …’
7 Under Article 18(1) of Directive 2014/24:
‘Contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.
…’
8 Article 36(5) of that directive provides:
‘Where contracting authorities reopen competition for specific contracts in accordance with point (b) of paragraph 4, they shall notify tenderers of the date and time at which they intend to collect the information needed to constitute tenders adapted to the requirements of the specific contract in question and shall give tenderers the possibility to refuse such collection of information.
Contracting authorities shall allow for an adequate period between the notification and the actual collection of information.
Before awarding the contract, contracting authorities shall present the collected information to the tenderer concerned so as to give it the opportunity to contest or confirm that the tender thus constituted does not contain any material errors.’
9 Article 41 of that directive provides:
‘Where a candidate or tenderer or an undertaking related to a candidate or tenderer has advised the contracting authority, whether in the context of Article 40 or not, or has otherwise been involved in the preparation of the procurement procedure, the contracting authority shall take appropriate measures to ensure that competition is not distorted by the participation of that candidate or tenderer.
Such measures shall include the communication to the other candidates and tenderers of relevant information exchanged in the context of or resulting from the involvement of the candidate or tenderer in the preparation of the procurement procedure and the fixing of adequate time limits for the receipt of tenders. The candidate or tenderer concerned shall only be excluded from the procedure where there are no other means to ensure compliance with the duty to observe the principle of equal treatment.
Prior to any such exclusion, candidates or tenderers shall be given the opportunity to prove that their involvement in preparing the procurement procedure is not capable of distorting competition. The measures taken shall be documented in the individual report required by Article 84.’
10 In accordance with Article 69(1) and (4) of that directive:
‘1. Contracting authorities shall require economic operators to explain the price or costs proposed in the tender where tenders appear to be abnormally low in relation to the works, supplies or services.
…
4. Where a contracting authority establishes that a tender is abnormally low because the tenderer has obtained State aid, the tender may be rejected on that ground alone only after consultation with the tenderer where the latter is unable to prove, within a sufficient time limit fixed by the contracting authority, that the aid in question was compatible with the internal market within the meaning of Article 107 TFEU. Where the contracting authority rejects a tender in those circumstances, it shall inform the [European] Commission thereof.’
11 Articles 78 to 82 of Directive 2014/24 form Chapter II, entitled ‘Rules governing design contests’, of Title III, itself entitled ‘Particular procurement regimes’, of that directive.
12 Article 78 of that directive provides:
‘This Chapter shall apply to:
(a) design contests organised as part of a procedure leading to the award of a public service contract;
(b) design contests with prizes or payments to participants.
…’
13 Article 80(1) of that directive states:
‘When organising design contests, contracting authorities shall apply procedures which are adapted to the provisions of Title I and this Chapter.’
14 Article 82 of Directive 2014/24 provides:
‘1. The jury shall be autonomous in its decisions or opinions.
2. The jury shall examine the plans and projects submitted by the candidates anonymously and solely on the basis of the criteria indicated in the contest notice.
3. The jury shall record its ranking of projects in a report, signed by its members, made according to the merits of each project, together with its remarks and any points that may need clarification.
4. Anonymity shall be observed until the jury has reached its opinion or decision.
5. Candidates may be invited, if need be, to answer questions that the jury has recorded in the minutes to clarify any aspect of the projects.
6. Complete minutes shall be drawn up of the dialogue between jury members and candidates.’
15 In accordance with Part E of Annex V to Directive 2014/24, the contest notices referred to in Article 79(1) of that directive must state, inter alia, the criteria to be applied in the evaluation of the projects, and must indicate whether the jury’s decision is binding on the contracting authority concerned and whether any contracts following the design contest will be awarded to the winner or winners of that contest.
Directive 2014/25
16 Article 2 of Directive 2014/25, as amended by Commission Delegated Regulation (EU) 2019/1829 of 30 October 2019 (OJ 2019 L 279, p. 27) (‘Directive 2014/25’), provides:
‘For the purposes of this Directive, the following definitions apply:
…
(17) “design contests” means those procedures which enable the contracting entity to acquire, mainly in the fields of town and country planning, architecture, engineering or data processing, a plan or design selected by a jury after being put out to competition with or without the award of prizes;
…’
17 Article 11 of that directive provides:
‘This Directive shall apply to activities relating to the provision or operation of networks providing a service to the public in the field of transport by railway, automated systems, tramway, trolley bus, bus or cable.
As regards transport services, a network shall be considered to exist where the service is provided under operating conditions laid down by a competent authority of a Member State, such as conditions on the routes to be served, the capacity to be made available or the frequency of the service.’
18 Article 15 of that directive provides:
‘Save where they are ruled out by the exclusions in Articles 18 to 23 or pursuant to Article 34, concerning the pursuit of the activity in question, this Directive shall apply to procurements with a value net of [VAT] estimated to be equal to or greater than the following thresholds:
(a) EUR 428 000 for supply and service contracts as well as for design contests;
…’
19 In accordance with Article 36(1) of that directive:
‘Contracting entities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.
…’
20 Articles 95 to 98 of Directive 2014/25 form Chapter II, entitled ‘Rules governing design contests’, of Title III, itself entitled ‘Particular procurement regimes’, of that directive.
21 Article 95 of that directive provides:
‘1. This Chapter shall apply to design contests organised as part of a procurement procedure for a service contract, provided that the estimated value of the contract, net of VAT, and including any possible prizes or payments to participants, is equal to or greater than the amount set out in point (a) of Article 15.
2. This Chapter shall apply to all design contests where the total amount of contest prizes and payments to participants, including the estimated value net of VAT of the service contract which might subsequently be concluded under point (j) of Article 50 if the contracting entity does not exclude such an award in the contest notice, is equal to or greater than the amount set out in point (a) of Article 15.’
22 Article 97(1) of that directive provides:
‘When organising design contests, contracting entities shall apply procedures which are adapted to Title I and this Chapter.’
23 Article 98 of Directive 2014/25 provides:
‘1. The jury shall be autonomous in its decisions or opinions.
2. The jury shall examine the plans and projects submitted by the candidates anonymously and solely on the basis of the criteria indicated in the contest notice.
3. The jury shall record its ranking of projects in a report, signed by its members, made according to the merits of each project, together with its remarks and any points that may need clarification.
4. Anonymity shall be observed until the jury has reached its opinion or decision.
5. Candidates may be invited, if need be, to answer questions that the jury has recorded in the minutes to clarify any aspects of the projects.
6. Complete minutes shall be drawn up of the dialogue between jury members and candidates.’
Portuguese law
Code of administrative procedure
24 Article 121 of the Código do Procedimento Administrativo (Code of administrative procedure), in the version applicable to the main proceedings, entitled ‘Right to a prior hearing’, provides:
‘1. Without prejudice to Article 124, the persons concerned shall be entitled to be heard in the context of the procedure before the final decision is taken, and must be informed, inter alia, of the probable outcome of the procedure.
2. In exercise of the right to be heard, the persons concerned may express their point of view on all matters of law and fact relevant for the decision and may request additional actions and submit documents.
3. The competent authority may hold only one prior hearing, and shall include in that proceeding all the points of fact and law supporting the probable outcome of the decision.
…’
25 Under Article 124 of the Code of Administrative Procedure, in the version applicable to the main proceedings, entitled ‘Exemption from the requirement to hear the persons concerned’:
‘1. The person responsible for the conduct of the procedure may refrain from hearing the persons concerned where:
(a) the decision is urgent;
(b) the persons concerned have requested the deferral referred to in paragraph 2 of the preceding article and, for a reasonable attributable to those persons, it has not been possible to set a new date in accordance with paragraph 3 of that article;
(c) it is reasonably foreseeable that the proceeding could jeopardise the implementation or effectiveness of the decision;
(d) the number of persons concerned that are to be heard renders a hearing impracticable, in which case, where possible, a public consultation should be held, in the manner most appropriate;
(e) the persons concerned have already expressed their point of view in the procedure on the issues relevant for the decision and on the evidence produced;
(f) the material present in the procedure gives rise to a decision entirely favourable to the persons concerned.
2. In the situations provided for in the preceding paragraph, the final decision must indicate why a hearing was not held.’
Public Procurement Code
26 Article 219-A of the Código dos Contratos Públicos (Public Procurement Code), in the version applicable to the main proceedings (‘CCP’), provides:
‘1. A design contest seeks to select one or more designs, at the outline or similar stage, in particular in the fields of art, town and country planning, architecture, engineering or data processing.
…
6. The procedural requirements applicable to procedures for open contests, restricted contests with pre-selection and simplified design contests shall be those established in this chapter; the other provisions of this code on the award of contracts shall apply on a subsidiary basis.’
27 Article 219-B(2) CCP provides:
‘Irrespective of the form of procedure adopted, the identities of the candidates that have created the designs submitted may only be known and disclosed after the report referred to in Article 219-I(1) has been drawn up.’
28 Article 219-F CCP provides:
‘1. The documents embodying the designs must be prepared and submitted in a manner ensuring the full and absolute anonymity of the candidates, and may not contain any information making it possible, directly or indirectly, to identify the creator or creators of those designs.
2. The contest jury shall assess the designs and draw up a report, signed by all members of the jury, in which it must indicate, stating reasons:
(a) the ranking of the designs submitted, in accordance with the selection criterion defined in the terms of reference;
(b) the exclusion of any designs submitted that infringe any rule relating to the submission of designs.
3. The contest jury may only become aware of the identities of the candidates after it has complied fully with the provisions laid down in the preceding paragraph.
4. Provided that the terms of reference so provide, the jury may request clarification from the candidates in relation to their designs or may organise a phase of demonstrations or experiments in respect of the designs with a view to assessing whether the proposed solutions comply with the terms of reference and their appropriateness or feasibility.
5. If the procedures referred to in the preceding paragraph are conducted, the jury shall draw up a new report reflecting the results thereof and proposing the final ranking of the candidates.’
The dispute in the main proceedings and the question referred for a preliminary ruling
29 On 10 March 2021, the contracting authority published a contest notice for the selection by a jury (‘the jury’) of three design projects for a bridge over the River Douro, with a view to the subsequent award of the public service contract to develop the implementation project for that bridge directly to an undertaking that had submitted one of those three projects.
30 It is apparent from the contest specifications that the decisions of the jury on the ranking or exclusion of the projects submitted are binding on the contracting authority and cannot be changed once the identity of the candidates is known, unless the design contest is annulled. The jury may request the candidates to provide any clarification it considers necessary in respect of the projects submitted by them. The anonymity of those candidates must be observed absolutely in the provision of that clarification. The jury’s final report ranks those projects, stating reasons, in accordance with the selection criteria laid down by the contest specifications, excluding those projects that are subject to one of the grounds for exclusion provided for by those specifications. The candidates that submitted the three highest ranked projects receive a prize of EUR 150 000, EUR 100 000 and EUR 50 000 respectively, and are selected to participate in a direct award procedure in which they are invited to submit a proposal in accordance with specifications particular to that procedure.
31 On 18 October 2021, the contracting authority selected the projects of three candidates in accordance with the report submitted by the jury. The project submitted by the company that is the applicant company in the main proceedings was not among those three projects. The jury also set the basic price for the direct award procedure relating to the service contract to develop the implementation project for the bridge over the Douro at EUR 2 800 000.
32 On 25 and 27 October 2021, the applicant company disputed the jury’s report with its president and, on the basis of its right to a prior hearing, requested a review of the analysis of the project submitted by it and modification of the marks it had been given, and also requested that technical modifications be included in that project.
33 On 2 November 2021, the contracting authority found, first, that it could only annul the jury’s decision if that decision contained aspects that were unlawful or manifest errors of assessment, which was not the case. Second, it noted that a project that had not been selected by the jury before the anonymity of the candidates was lifted could no longer be selected, with the consequence that it would be unlawful to seek a reassessment of that project.
34 On 21 March 2022, the contracting authority concluded the contract to develop the implementation project for the bridge over the Douro with a consortium composed of companies other than the applicant company in the main proceedings.
35 By a judgment of 21 September 2023, the Tribunal Administrativo e Fiscal do Porto – Juízo de Contratos Públicos (Administrative and Tax Court, Porto, Public Procurement Division, Portugal) dismissed the action brought by the applicant company in the main proceedings by which the latter sought, inter alia, annulment of the jury’s report, of the decision of the contracting authority and of the contract to develop the implementation project for the bridge over the Douro concluded with the winner of the contest.
36 By a judgment of 15 December 2023, the Tribunal Central Administrativo Norte (Northern Central Administrative Court, Portugal) dismissed the appeal lodged by the applicant company in the main proceedings against that judgment.
37 The applicant company lodged an appeal on a point of law against that judgment before the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal), which is the referring court.
38 In the first place, that court finds that the procedure at issue in the main proceedings is a design contest procedure within the meaning of Directive 2014/24, rather than a combined procedure in which a first tender-selection phase is necessarily followed by a second phase in which one of those tenders is chosen. In that regard, it notes that the main purpose of such a design contest procedure is not to conclude a contract, but only to select one or more plans or projects in the field of architecture or engineering.
39 Furthermore, that court observes that the dispute in the main proceedings does not concern the subsequent procedure to award the public service contract in question, which took place following a lawful procedure.
40 In the second place, that court is uncertain whether the candidates in a design contest must be recognised as having a right to be heard by the contest jury prior to its decision.
41 In that regard, the referring court notes, first, that, although the hearing of the interested parties is, in Portuguese law, a crucial stage in any administrative procedure, it may be found in certain duly justified cases that the absence of a prior hearing is compliant with that law.
42 Second, that court states that it may be mandatory not to have a prior hearing of the participants in a design contest, because a hearing would infringe the fundamental principle of the anonymity of those participants, given that their identities can be known only after the jury report for that contest has been drawn up.
43 However, the referring court notes that, under Article 82(3) to (6) of Directive 2014/24, a design contest jury may obtain clarification in relation to the candidates’ projects, in the context of a dialogue taking place before it draws up its report and recorded in minutes, provided that the anonymity of those candidates is observed. That possibility was transposed in Article 219-F CCP, which also allows a contest jury to draw up a new report resulting from the clarification it has obtained.
44 Furthermore, although, in Portuguese law, no rule specific to the design contest procedure enshrines the candidates’ right to a prior hearing, that hearing is nevertheless provided for by the general provisions governing open procedures, to which Article 219-A(6) CCP refers on a subsidiary basis, such a reference also being provided for in Article 80(1) of Directive 2014/24.
45 The referring court finds that, in those circumstances, it is appropriate to determine whether the participants in a design contest must have a right to be heard prior to the contest jury establishing its ranking of the plans or projects submitted to it.
46 In those circumstances, the Supremo Tribunal Administrativo (Supreme Administrative Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Should the rule requiring anonymity of candidates laid down in Article 82(4) of [Directive 2014/24], in conjunction with the possibility of dialogue between the jury and the candidates in order to obtain clarification about the designs submitted, as provided for in Article 82(5) and (6), and with the reference in Article 80(1) of that directive to the provisions of Title I, be interpreted as precluding a prior hearing of the interested parties as a compulsory step in the procedure?’
Consideration of the question referred
Admissibility
47 In the first place, the contracting authority claims that the question referred is inadmissible for three reasons. First, since the contest jury must carry out its assessment in strict compliance with the principle of anonymity, and given that, in the present case, the anonymity of the participants in the design contest has been lifted, recognition of the applicant company in the main proceedings as having a right to be heard by the jury can no longer be of any practical consequence. Next, even if the applicant company in question had been heard, the outcome of the design contest would have been the same, since no finding of an error in the jury’s assessment has been made by the Portuguese courts. Last, by seeking to be recognised as having a right to be heard by the jury, the applicant company is seeking purely to obtain an opportunity to modify the content of its project, which is prohibited by EU law.
48 It should be recalled that, according to settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 17 March 2026, Županijsko državno odvjetništvo, C‑8/24, EU:C:2026:210, paragraph 55 and the case-law cited).
49 In the present case, it should be noted, first, that, if the decision at issue in the main proceedings were annulled, it is not inconceivable that a new jury could be set up in order to carry out a new assessment of the projects submitted by the candidates, in strict observance of their anonymity.
50 Second, even assuming that an infringement of the right to be heard gives rise to annulment of the decision concerned only if, in the absence of that irregularity, the content of that decision may have been different, it is not for the Court to substitute its assessment of that matter for that of the referring court.
51 Third, assuming that the aim pursued by the applicant company in the main proceedings were purely to obtain an opportunity to modify the content of its project, which does not seem to be apparent from the order for reference, the fact remains that the question of whether EU law precludes hearing candidates that are pursuing such an objective relates to the interpretation of the relevant provisions of EU law and, therefore, concerns examination of the substance of the question referred.
52 It follows that the pleas of inadmissibility raised by the contracting authority cannot be accepted.
53 In the second place, as the Advocate General noted in point 11 of his Opinion, the question referred concerns the interpretation of Articles 80 and 82 of Directive 2014/24, while the aim of the design contest at issue in the main proceedings was to design the plan for a bridge over the River Douro, at the request of the company responsible for managing the infrastructure of the Porto metro.
54 It is therefore not impossible that the design contest in question falls within the scope not of Directive 2014/24 but of Directive 2014/25.
55 It is clear from Article 7 of Directive 2014/24 that the scope of the directive does not extend to public contracts in the transport services sector, as defined in Article 11 of Directive 2014/25 (judgment of 1 August 2022, Roma Multiservizi and Rekeep, C‑332/20, EU:C:2022:610, paragraph 64).
56 The first paragraph of Article 11 of Directive 2014/25 states, for its part, that the directive ‘shall apply to activities relating to the provision or operation of networks providing a service to the public in the field of transport by railway, automated systems, tramway, trolley bus, bus or cable’. Under the second paragraph of that article, a network exists where the transport service is provided under operating conditions laid down by a competent authority of a Member State, such as conditions on the routes to be served, the capacity to be made available or the frequency of the service.
57 Since the order for reference does not specify the intended use of the bridge over the River Douro, design of the plan for which forms the subject matter of the design contest at issue in the main proceedings, it cannot be determined from that decision whether Directive 2014/24 is applicable to the dispute in the main proceedings or whether, on the contrary, Directive 2014/25 should be applied.
58 It must be noted, nevertheless, that Articles 97 and 98 of Directive 2014/25 correspond, in essence to Articles 80 and 82 of Directive 2014/24 (see, to that effect, judgments of 20 September 2018, Rudigier, C‑518/17, EU:C:2018:757, paragraph 44, and of 10 November 2022, Taxi Horn Tours, C‑631/21, EU:C:2022:869, paragraph 39).
59 In those circumstances, the question referred remains relevant for the purposes of resolving the dispute in the main proceedings even in the event that the design contest at issue in that dispute falls under Directive 2014/25.
60 In the third place, it appears from the file before the Court that the design contest procedure at issue in the main proceedings concerns an amount above the thresholds laid down in Article 4 of Directive 2014/24 and in Articles 15 and 95 of Directive 2014/25 respectively.
61 The question referred is therefore admissible.
Substance
62 By its question, the referring court asks, in essence, whether Articles 80 and 82 of Directive 2014/24 must be interpreted as precluding the participants in a design contest from being able to require that they be heard by the jury of that contest prior to the final ranking, by that jury, of the plans or projects submitted by those candidates.
63 As a preliminary point, and as recalled in paragraph 48 of the present judgment, the referring court is responsible for defining the factual and legislative context. It is therefore not the task of the Court, as the applicant company in the main proceedings suggests, to question the referring court’s finding that the procedure at issue in the main proceedings is a design contest procedure within the meaning of Article 2(1)(21) of Directive 2014/24.
64 With the benefit of that preliminary clarification, it should be noted, in the first place, that none of the provisions in Chapter II of Title III of Directive 2014/24, which addresses design contests specifically, guarantees a candidate in a design contest the right to be heard by the jury of that contest before that jury prepares its ranking.
65 While, admittedly, Article 82(5) of that directive states that a contest jury may, if need be, invite a candidate to answer the questions that the jury in question has recorded in the minutes, in order to clarify certain aspects of that candidate’s project, such a request for clarification can, however, be made only by that jury, if it considers such a request necessary. That provision therefore does not confer any right on the candidates in a design contest to be heard by the same jury.
66 In the second place, it is apparent from Article 80(1) of Directive 2014/24 that contracting authorities have a duty to organise design contests applying procedures which are adapted not only to the provisions of Chapter II of Title III of that directive but also to the provisions in Title I thereof, which addresses the scope, definitions and general principles applicable to public contracts and design contests.
67 In that regard, it should be noted, first, that Title I of that directive contains no provision according to which the candidates in a design contest or the tenderers in a public contract award procedure are to be heard by the jury of that contest or by the contracting authority concerned before that jury or contracting authority takes its decision.
68 Second, Article 18 of Directive 2014/24, which forms part of that Title I, enshrines the principles of equal treatment and transparency in contract award procedures.
69 It is clear from those principles that the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or the specifications and that, in principle, there may be no negotiation between the contracting authority concerned and a tenderer, with the consequence that a tender cannot normally be amended after it has been submitted, and that the contracting authority in question cannot require the tenderer to provide clarification where it regards the latter’s tender as imprecise or as failing to meet the requirements of the procurement documents (see, to that effect, judgments of 14 September 2017, Casertana Costruzioni, C‑223/16, EU:C:2017:685, paragraph 35; of 17 June 2021, Simonsen & Weel, C‑23/20, EU:C:2021:490, paragraph 61; and of 13 June 2024, BibMedia, C‑737/22, EU:C:2024:495, paragraphs 31 and 32 and the case-law cited).
70 Since Article 80(1) of Directive 2014/24 requires that those principles of transparency and equality be complied with during design contest procedures, and no other provision relating to those procedures enshrines a right to be heard for the candidates, a candidate cannot be allowed to require to be heard by the contest jury concerned before the latter ranks the projects or plans submitted to it.
71 As the Advocate General recalled, in essence, in points 23 and 37 of his Opinion, the need to maintain the independence of the contest jury and a ranking based only on the objective merits of the projects and plans submitted, which the anonymity requirement laid down in Article 82(2) and (4) of Directive 2014/24 is intended to achieve, supports that interpretation. Despite the precautions that can be taken, the holding of a prior hearing by that jury in fact always carries a risk that information making it possible to identify a candidate, albeit indirectly, will be disclosed during that hearing.
72 Moreover, as illustrated by, inter alia, the last paragraph of Article 36(5), the third paragraph of Article 41 and Article 69(1) and (4) of Directive 2014/24, which are contained in Title II of that directive, when the EU legislature intends to recognise candidates or tenderers as having a right to enter into contact with the contracting authority concerned or to negotiate with it, that legislature expressly refers to an obligation on the contracting authority to that effect.
73 It should also be added that, should the referring court come to the conclusion that the design contest at issue in the main proceedings is governed not by Directive 2014/24 but by Directive 2014/25, it will be for that court to find, for reasons similar to those set out in paragraphs 64 to 72 of the present judgment, that Articles 97 and 98 of Directive 2014/25 cannot be interpreted as meaning that a candidate could require to be heard by the jury before the latter ranks projects and plans submitted to it.
74 In the third place, as the Advocate General noted in points 46 to 58 of his Opinion, the general principle of EU law enshrining the right to be heard, which is applicable to the dispute in the main proceedings, does not alter that finding.
75 According to settled case-law, that right guarantees every person, within the scope of EU law, the opportunity to make that person’s views known usefully and effectively during an administrative procedure and before the adoption of any decision adversely affecting that person or liable to affect his, her or its interests adversely, including where such a formality is not provided for by the applicable legislation (see, to that effect, judgments of 24 October 1996, Commission v Lisrestal and Others, C‑32/95 P, EU:C:1996:402, paragraph 21; of 14 January 2021, RTS infra and Aannemingsbedrijf Norré-Behaegel, C‑387/19, EU:C:2021:13, paragraph 34; of 12 September 2024, Sagrario, C‑63/23, EU:C:2024:739, paragraph 79; and of 6 March 2025, Obshtina Veliko Tarnovo and Obshtina Belovo, C‑471/23 and C‑477/23, EU:C:2025:155, paragraph 74 and the case-law cited).
76 In the present case, it is not in dispute that the jury’s decision by which the applicant company in the main proceedings lost any chance of obtaining the prizes associated with the design contest at issue in the main proceedings and the public service contract to be awarded subsequently constitutes an act adversely affecting that applicant company.
77 However, the right to be heard must be examined having regard to the specific circumstances of each case, including the nature of the act at issue, the context in which it was adopted and the legal rules governing the matter in question, since the purpose of that right is to enable individuals effectively to make known their views as regards the information on which the authorities intend to rely (see, to that effect, judgments of 5 November 2014, Mukarubega, C‑166/13, EU:C:2014:2336, paragraph 54; of 6 October 2021, Prokuratura Rejonowa Łódź-Bałuty, C‑338/20, EU:C:2021:805, paragraph 42; and of 25 April 2024, NW and PQ (Classified information), C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 89).
78 The design contest procedure, as governed by Directive 2014/24, is intended to enable a contest jury to compare the projects or plans of each candidate anonymously, objectively and transparently, relying exclusively on the criteria indicated in the contest notice. Accordingly, the participants in the design contest in question are asked to submit a plan or project, based on the precise data contained in the procurement documents, that aims to respond as appropriately as possible to the expectations of the contracting authority concerned, as those expectations have been specified in those documents.
79 It is also for those participants to act diligently in preparing their projects or their plans, and the contracting authority in question has no obligation to contact them in order to dispel any lack of clarity in that respect (see, by analogy, judgment of 29 March 2012, SAG ELV Slovensko and Others, C‑599/10, EU:C:2012:191, paragraph 38).
80 It follows that, in view of the specific circumstances surrounding design contest procedures, summarised in paragraphs 78 and 79 of the present judgment, in particular the need to preserve both the anonymity of the candidates and equality between them and the obligation, on those candidates, to act diligently in preparing their plans or their projects, the candidates’ right to be heard before their project or plan is excluded from the selection procedure, if that be the case, does not entail a right to express their point of view before the contest jury concerned on the information on which that jury intends to base its decision, but is given practical effect only in the opportunity available to candidates to submit a plan or project corresponding to the expectations of that contracting authority. Accordingly, such a candidate cannot be recognised as having a right to be heard by the same jury following submission of that plan or project and prior to the final ranking, by that jury, of the plans or projects submitted to it.
81 It follows from all the foregoing that Articles 80 and 82 of Directive 2014/24 must be interpreted as precluding the participants in a design contest from being able to require that they be heard by the jury of that contest prior to the final ranking, by that jury, of the plans or projects submitted by those candidates.
Costs
82 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Third Chamber) hereby rules:
Articles 80 and 82 of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, as amended by Commission Delegated Regulation (EU) 2019/1828 of 30 October 2019
must be interpreted as precluding the participants in a design contest from being able to require that they be heard by the jury of that contest prior to the final ranking, by that jury, of the plans or projects submitted by those candidates.
[Signatures]
* Language of the case: Portuguese.