Balancing Discretion and Equal Treatment: Insights from the CJEU’s Landmark Ruling

In 2026, the Court of Justice of the European Union (CJEU) delivered a landmark ruling in Case C-590/24 AK Dlhopolec and Others, addressing the critical balance between administrative flexibility and the fundamental principles of public procurement.

The case scrutinises the extent of a contracting authority’s discretion and establishes that while flexibility exists in procurement, it is not unlimited.

Background of the Dispute

The conflict originated in Slovakia regarding the awarding of a long-term concession contract. Unlike standard procurement where the government pays a contractor directly, a concession contract allows a private entity to manage a service and recover investment by collecting fees from users at their own risk.

Slovakian law requires any entity participating in public works or leases to be registered in the Register of Public Sector Partners (RPVS). This registration must be performed by an “authorised person” (such as a lawyer or notary) who is strictly required to be impartial and independent. However, the law lacked specific criteria defining what constitutes a conflict of interest or a breach of this impartiality.

The Conflict and Regulatory Breach

The dispute arose when Slovakian authorities alleged that the “authorised person” for the companies involved (including AK Dlhopolec) had business relationships that compromised their impartiality. Specifically, a manager from the authorised person’s firm and a manager from the bidding company were partners in a third, unrelated company. As a result, financial penalties were imposed. Under Slovakian law, failure to pay these penalties resulted in automatic exclusion from future public procurement procedures. The economic operators challenged this, arguing that the lack of clear, predefined rules made compliance unpredictable and turned legal consequences into a matter of chance.

Core Legal Issues

The case centred on several fundamental procurement questions:

Transparency: Whether a contracting authority can use evaluation methods or interpretations not explicitly stated in the tender documents.

Equal Treatment: Whether allowing vague eligibility rules compromises the level playing field for all bidders.

Predictability: Whether an economic operator can reasonably foresee the legal consequences of their actions when exclusion mechanisms are ambiguous.

Arguments of the Parties

The Applicants: They argued that procurement relies on trust and that changing the interpretation of rules after bids are submitted destroys competition. They claimed the authority used an “analytical framework” during evaluation that was missing from the original tender documentation, violating transparency and equal treatment.

The Contracting Authority: They contended they had not created new criteria but were providing a “logical interpretation” of existing conditions. They argued that in complex concession contracts, a degree of interpretative discretion is essential for operational functionality.

The Ruling of the European Court

The CJEU clarified that transparency in concession procurement is a foundation of competition, not a mere formality. The court’s key findings include:

Reasonable Anticipation: A contracting authority cannot employ evaluation methods or interpretations that a “reasonably informed and normally diligent tenderer” could not have anticipated at the time of bid submission.

No Post-Bid Innovation: The evaluation framework cannot be “invented” or significantly altered after the process has started; “open-book improvisation” is prohibited.

Priority of Legal Certainty: While flexibility is allowed in concession procedures, it can never override the principle of equal treatment. Administrative convenience is not a valid substitute for legal certainty and proportionality.

Clarity of Sanctions: Any sanction leading to exclusion must be clear enough for a diligent operator to understand the consequences of their behaviour in advance.

Conclusion

The ruling in Case C-590/24 serves as a definitive warning that flexibility has limits. It reinforces the “three pillars” of a sustainable procurement system: transparency, predictability, and equal treatment. The court emphasised that the “rules of the game” must be written before the match begins, ensuring that all market participants can make informed decisions based on clear, pre-disclosed criteria.

Reference: Case C-590/24 AK Dlhopolec and Others