ECJ Judgment of January 16, 2025 – C–424/23

The judgment of the European Court of Justice (ECJ) of January 16, 2025, in case C-424/23 clarifies the interpretation of technical specifications according to Art. 42 of Directive 2014/24/EU in the awarding of public construction contracts. It specifically addresses whether it is permissible to specify the materials from which the offered goods must be made.

Facts: 

A Belgian contracting authority stipulated in a tender for sewer works the use of sewer pipes made of stoneware and concrete, without considering equivalent alternatives. This material requirement was challenged by a manufacturer of plastic pipes, arguing that it restricted competition and disadvantaged companies without the required products.

Decision: 

The ECJ found that a material requirement is only permissible if the material necessarily arises from the subject matter of the contract, for example, due to the desired aesthetics. The same applies if the contracting authority cannot otherwise describe the subject matter of the contract sufficiently precisely and comprehensibly. In this case, the material must be specified with the addition "or equivalent".

For, if there are goods in an economic sector that can be distinguished by the material from which they are made, the requirement to use goods made of a specific material leads to the exclusion of companies that supply goods made of other materials.

The ECJ explained that properties of a product, such as "necessary materials," in public construction contracts according to Annex VII No. 1 letter a of Directive 2014/24/EU constitute technical specifications within the meaning of Art. 42 of Directive 2014/24/EU, which describe the actual subject matter of the contract.

Thus, the contracting authority generally has broad discretion in setting technical specifications according to Art. 42(1) of Directive 2014/24/EU. However, Art. 42(2) in conjunction with Art. 18(1) of the Directive sets certain limits. Technical specifications must grant all economic operators equal access to the procurement procedure and must not unjustifiably impair competition.

Furthermore, Art. 42(3) of Directive 2014/24/EU specifies how technical specifications should be formulated in the performance description. The ECJ pointed out that the material from which a good is made is not classified as a "performance" or "functional requirement" within the meaning of Art. 42(3) letter a of Directive 2014/24/EU. A material can only contribute to fulfilling a functional requirement but is not itself a "performance" or "functional requirement".

For a directive-compliant formulation of the material requirement, the contracting authority may not specify in the technical specifications of a public construction contract without adding the addition "or equivalent" from which materials the goods offered by the bidders must be made, unless the use of a specific material necessarily arises from the subject matter of the contract, as no alternative based on another technical solution is considered.

This judgment once again highlights the importance of adhering to the principles of equal treatment and competition in the European Union. Material requirements are only permissible if they are absolutely necessary or equivalent alternatives are considered.