(Reference for a preliminary ruling– Directive 2014/24

7Four framework agreements with a reopening of competition, for the purchase of various computer equipment, were awarded by the National Legal Services Agency under a restricted procedure pursuant to Lagen (2007:1091) om offentlig upphandling (Law No1091 of 2007 on public procurement), which was repealed in the meantime. In that procedure, 17 candidates qualified for the selection, including Advania, Dustin and Misco AB. While Dustin and Misco were among the nine candidates who were invited to tender, Advania was not invited to tender. At the end of that procedure, Misco was awarded framework agreements in the four areas at issue and Dustin was awarded framework agreements in two areas.

8By letter of 4December 2017, Misco requested the National Legal Services Agency to authorise the transfer to Advania of the four framework agreements which it held. On 12December 2017, Misco was declared insolvent and, on 18January 2018, its insolvency administrator signed a contract with Advania providing for the transfer of those framework agreements. The National Legal Services Agency authorised that transfer in February 2018.

9Dustin then brought an appeal before the Förvaltningsrätten i Stockholm (Administrative Court, Stockholm, Sweden) seeking that the framework agreements between Advania and the National Legal Services Agency be declared invalid.

10The Förvaltningsrätten i Stockholm (Administrative Court, Stockholm) dismissed the appeal. It considered that the National Legal Services Agency had correctly found that the succession at issue resulted from the restructuring of Misco and that Advania had obtained the framework agreements at issue and had acquired the branches of business enabling them to be performed, under the conditions laid down in Paragraph13 of Chapter17 of the Law on public procurement, which transposes Article72(1)(d)(ii) of Directive 2014/24 into Swedish law.

11Dustin brought an appeal against the judgment of the Förvaltningsrätten i Stockholm (Administrative Court, Stockholm) before the Kammarrätten i Stockholm (Administrative Court of Appeal, Stockholm, Sweden), which upheld that appeal and declared the invalidity of the four framework agreements between Advania and the National Legal Services Agency. That court was of the opinion that Advania could not be regarded as having replaced Misco universally or partially, within the meaning of Paragraph13 of Chapter17 of the Law on public procurement, since, with the exception of the framework agreements at issue, Misco had transferred virtually no business to Advania. In support of that conclusion, the Kammarrätten i Stockholm (Administrative Court of Appeal, Stockholm) noted that only one employee of Misco subsequently joined Advania, that the list of Misco’s customers was not fully updated or relevant, that customers of Misco had already changed supplier and that there was no evidence to prove that Advania had taken on some of Misco’s subcontractors or that other public framework agreements had been transferred to Advania, even though Misco was party to at least one other public framework agreement.

12Advania and the National Legal Services Agency each brought an appeal against the judgment of the Kammarrätten i Stockholm (Administrative Court of Appeal, Stockholm) before the Högsta förvaltningsdomstolen (Supreme Administrative Court, Sweden). In their appeals, they do not dispute the appeal court’s assessment of the nature and extent of the elements covered by the transfer at issue. However, they contend that such a transfer satisfies the condition in Paragraph13 of Chapter17 of the Law on public procurement.

13Before the referring court, Advania submits that Directive 2014/24 does not require that, in addition to the framework agreements, a business of a certain nature or scope be transferred to the new contractor which replaces that to which the contracting authority initially awarded the contract.

14The National Legal Services Agency submits in its action before the referring court that the concept of ‘universal or partial succession’, which is one of the methods of transfer provided for by the relevant provisions of the Law on public procurement and Directive 2014/24, must be interpreted as meaning that the transferee contractor is required only to take the place of the original contractor in the rights and obligations arising from the contract or framework agreement at issue. By requiring, in addition to such substitution, the transfer of business or the transfer of assets, the applicability of those provisions would be severely limited. The fundamental point is that the new contractor may perform the contract or framework agreement at issue in accordance with the conditions and requirements originally laid down.

15Dustin contends, for its part, before that court that the condition relating to the universal or partial succession of the original contractor following corporate restructuring operations provided for in Article72(1)(d)(ii) of Directive 2014/24 covers situations in which the branches of business concerned by the contract or framework agreement at issue are transferred to the new contractor. The transfer of the contract or framework agreement in question is merely incidental to the transfer of business. The transfer of contracts or framework agreements which were the subject of calls for tenders without the simultaneous transfer of the branches of business concerned would lead not only to the trade in such contracts or framework agreements but would also enable the transfer of partial rights and obligations arising from those contracts or framework agreements.

16In those circumstances, the Högsta förvaltningsdomstolen (Supreme Administrative Court) stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling:

‘Does the circumstance that a new contractor has taken over the initial contractor’s rights and obligations under a framework agreement, after the initial contractor has been declared insolvent and the insolvency estate has transferred the agreement, mean that the new contractor will be deemed to have succeeded into the position of the initial contractor under conditions such as those referred to in Article72(1)(d)(ii) of [Directive 2014/24]?’