CJEU keeps Lianakis interpretation relevant under Directive 2014/24 (C-641/13)

In its Judgment in Spain v Commission (financial support for cuenca hidrográfica del Júcar), C-641/13, EU:C:2014:2264 (not available in English), the Court of Justice of the EU has reiterated in very clear terms the currency of its Lianakis case law [C-532/06, EU:C:2008:40]. Indeed, in Spain v Commission (paras 33-41), the CJEU has clearly stressed that Lianakis (paras 30-32) and Commission v Greece [C-199/07, EU:C:2009:693, paras 55-56] prevent the past experience of the tenderer being used as an award criterion. Given the brevity and clarity of the reasoning of the CJEU, few doubts can remain as to the rather absolute character of the prohibition.
This should come as no suprise, as this was the majoritarian interpretation of the Lianakis Judgment [for a possibilistic interpretation seeking flexibility, though, see S Treumer, ‘The Distinction between Selection and Award Criteria in EC Public Procurement Law—A Rule without Exception’ (2009) 18 Public Procurement Law Review 103, and A Sanchez Graells, Public procurement and the EU competition rules (Oxford, Hart Publishing, 2011) 310-12]. Moreover, this was precisely one of the points in which the 2011 proposals for new EU public procurement Directives aimed to deviate (or fine-tune) the case law of the CJEU [for discussion, see M Orthmann, 'The experience of the Bidder as Award Criterion in EU Public Procurement Law' (2014) 1 Humboldt Forum Recht 1 ff].
With this in mind, it is worth stressing that Directive 2014/24 now (well, as soon as the Member States transpose it, which they must do by 18 April 2016) deviates from the standard reading of the Lianakis case law. Directive 2014/24 decouples the treatment of the general experience of the tenderer as a qualitative selection criterion [art 58(4), where Lianakis applies full-force] from the assessment of more limited and specific aspects of experience evaluation clearly linked to the subject-matter of the contract, which allow for the specific experience of staff assigned to performing the contract to be taken into consideration at award stage, 'where the quality of the staff assigned can have a significant impact on the level of performance of the contract' [art 67(2)(b), which restricts, specifies of modifies Lianakis].
The justification given by Directive 2014/24 for this change is that
Wherever the quality of the staff employed is relevant to the level of performance of the contract, contracting authorities should also be allowed to use as an award criterion the organisation, qualification and experience of the staff assigned to performing the contract in question, as this can affect the quality of contract performance and, as a result, the economic value of the tender. This might be the case, for example, in contracts for intellectual services such as consultancy or architectural services. Contracting authorities which make use of this possibility should ensure, by appropriate contractual means, that the staff assigned to contract performance effectively fulfil the specified quality standards and that such staff can only be replaced with the consent of the contracting authority which verifies that the replacement staff affords an equivalent level of quality [rec (94), emphasis added].
In my view, all of this indicates that the use of staff (specific) experience at award stage will need to be assessed under strict proportionality terms (particularly as the 'significance' of its impact on the level of performance of the contract is concerned), given that exceptions[art 67(2)(b)] to the general rules [art 58(4)] of Directive 2014/24 and the applicable interpretative case law need to be constructed strictly. Moreover, recourse to this sort of award criterion will still need to comply with general requirements and, in my view, avoid distortions of competition such as first comer advantages for incumbent contractors.