Provisional text
OPINION OF ADVOCATE GENERAL
BIONDI
delivered on 26 March 2026 (1)
Case C‑888/24
Adão da Fonseca-Engenheiros Consultores, Lda
v
Metro do Porto, S.A.,
Betar Consultores, Lda
(Request for a preliminary ruling from the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal))
( Reference for a preliminary ruling – Public procurement – Directive 2014/24/EU – Article 82 – Design contest procedure – No prior hearing – Protection of the candidates’ anonymity – Right to be heard )
I. Introduction
1. This request for a preliminary ruling from the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal), the referring court, gives the Court the opportunity to interpret for the first time the provisions of Directive 2014/24/EU (2) on public contracts, specifically those regarding ‘design contests’.
2. Design contests, which differ from calls for tenders, are procedures which enable the contracting authority to acquire a conceptual proposal, plan or design (typically in the fields of town and country planning, engineering and architecture) selected by a jury after being put out to competition. Design contests are unique owing to the creative and conceptual nature of the plans or designs submitted, in which the quality and originality of the solutions proposed play a key role in the assessment.
3. The present case raises, in short, the question of the necessity – or, at least, the admissibility in this type of procedure – of a prior hearing of the candidates before the jury takes its final decision. That question will be analysed both within the regulatory framework of Directive 2014/24 and in the light of the general principle of EU law recognising the right to be heard.
4. The request for a preliminary ruling which is the subject of the present Opinion arose in an action brought by the engineering company Adão da Fonseca – Engenheiros Consultores, Lda. (‘Adão da Fonseca’) in relation to a design contest held by the company Metro do Porto, S.A., as the contracting authority, for the development of the implementation project for a bridge over the River Douro.
5. Adão da Fonseca’s project was not ranked among the three projects selected by the jury in that design contest. The company therefore brought an action before the Portuguese administrative courts seeking annulment of the jury’s decision, as well as of the subsequent decision to award the public service contract to another operator.
6. Following two dismissals of its action by the lower administrative courts, Adão da Fonseca brought an appeal at last instance before the referring court. Before that court, the company alleges, inter alia, infringement of its alleged right to a prior hearing. (3) It claims that the failure to hold a prior hearing, in particular before the jury, constituted an infringement of an essential procedural requirement, with the result that both the design contest procedure and the subsequent award (4) were vitiated.
7. In that context, the referring court questions whether candidates in a design contest should be granted the right to be heard by the jury before the jury decides on the assessment and ranking of the plans or designs submitted to it. The referring court notes that the fact that the hearing of the interested parties constitutes, in Portuguese law, a crucial stage of any procedure does not rule out the possibility of there being no prior hearing in duly justified cases. It points out that, in design contests, not holding a prior hearing of the candidates may be justified in the light of the principle – which is fundamental in this type of procedure – of the anonymity of the candidates, whose identity may be revealed only once the jury has drafted its report. Nevertheless, the referring court observes that although no specific rule relating to the design contest procedure provides for such a prior hearing in Portuguese law, it is provided for by the general system of open procedures, to which reference is made in the alternative by the relevant national legislation.
8. In those circumstances, the referring 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?’
II. Analysis
9. As previously mentioned, the question asked by the referring court concerns the interrelation between the rule requiring anonymity of candidates, which plays a fundamental role in the rules on design contests, and the right of candidates participating in such a procedure to be heard.
10. As a preliminary point, it should be noted, in the first place, that the question referred for a preliminary ruling does not appear to be hypothetical, as Metro do Porto, S.A. submits in its observations. Indeed, it is clear from the referring court’s decision that Adão da Fonseca claimed before that court that the alleged unlawfulness consisting in the absence of a prior hearing of the parties at the design contest stage constituted an infringement of an essential procedural requirement, requiring the entire procedure to be annulled. (5) Accordingly, the question referred for a preliminary ruling is decisive for the case before the referring court and is therefore admissible.
11. In the second place, I note that the design contest procedure at issue concerns an implementation project for a bridge over the River Douro and was launched by Metro do Porto, S.A., the public company responsible for managing the infrastructure of the Porto metro system. Nevertheless, it is not evident from the order for reference or from the parties’ observations whether it is intended, in the context of that project, that the metro is to cross the bridge in question. It is unclear therefore whether the design contest at issue concerns ‘activities relating to the provision … of networks providing a service to the public in the field of transport by railway’ within the meaning of Article 11 of Directive 2014/25/EU. (6) If that were the case, then the provisions of that directive would apply to the design contest at issue, and not those of Directive 2014/24. In that regard, however, it should be noted that the provisions of the two directives relating to the rules on design contests called into question in the present case are in substance identical, (7) such that the Court’s analysis would be the same even if Directive 2014/25 were applicable.
12. To answer the question posed by the referring court, I will first describe the features of design contest procedures as governed by Directive 2014/24, in order to understand the specific aspects thereof that justify their legal regime (A). I will then examine whether a right to a prior hearing should be recognised in such procedures under Directive 2014/24 (B). Lastly, I will consider whether a right to a prior hearing in such procedures should be recognised on the basis of the right to be heard, as the expression of a general principle of EU law (C).
A. Design contests in Directive 2014/24
13. Article 2(1)(21) of Directive 2014/24 defines ‘design contests’ as ‘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’. (8)
14. Design contests are ‘flexible instruments’ (9) used by contracting authorities to select one or more designs in specific sectors. As such, they are used to gather ideas and to obtain the best conceptual proposal, without the procedure necessarily leading to an award of the project or the design service.
15. Design contests thus differ from public contracts, which Directive 2014/24 defines separately. (10) The purpose of design contests is not to award a contract for the provision of services, but merely to select one or more designs, with or without the award of prizes. Nevertheless, the possibility remains that a design contest may be organised as part of a procedure leading to the award of a public service contract. (11)
16. The unique nature of design contests, as was previously mentioned, therefore lies in their distinctive creative and conceptual character, in which the qualitative value and the innovative character of the proposed solutions are key. Unlike in a call for tenders, in design contests, candidates do not submit financial bids, but rather documents that express the design vision (typically plans or designs in town and country planning, engineering, architectural or other fields). Accordingly, the contracting authority does not award an actual contract, but simply chooses, and possibly awards a prize to, a conceptual proposal. The subject matter of the comparison is therefore not the contractual offer, but the technical content of the designs submitted. What interests the awarding authority in this type of procedure is the final outcome of the design and planning stage, which must meet the authority’s predefined specifications. The aim is not to identify the undertaking that meets the requirements which ensure that it has the professional competence to perform the contract awarded.
17. Design contests had already been the subject of specific rules in Directive 2004/18/EC. (12) However, Directive 2014/24 strengthened the regulatory framework and regulated design contests in a separate chapter – Chapter II (Articles 78 to 82) of Title III, on particular procurement regimes. (13)
18. The provisions of that chapter do not envisage a particular general procedure for design contests: they merely contain various procedural provisions intended to take into account the abovementioned particular features of this type of contest, together with an obligation on contracting authorities – laid down in Article 80(1) of Directive 2014/24, which is mentioned in the question referred for a preliminary ruling – to apply procedures which are adapted to the provisions of Title I of that directive on the general rules and principles. It follows from that relatively limited regulation that Directive 2014/24 is not intended to fully harmonise the rules on design contests.
19. As for the provisions of Directive 2014/24, Article 78 specifies the scope of the rules governing design contests. It is clear from that provision that design contests may be organised in one of three ways: first, completely independently of any public procurement procedure; (14) second, as a stage prior to a tendering procedure which may be held subsequently; (15) third, as an integral part of a procedure leading to the award of a public service contract. (16) Design contests may also be open to all operators or restricted to a limited number of candidates. (17)
20. Article 79 of Directive 2014/24 lays down the obligation on contracting authorities that intend to organise a design contest to make known their intention by means of a contest notice. (18) Article 80 of Directive 2014/24 lays down rules on the organisation of design contests and the selection of participants. (19) Article 81 of Directive 2014/24 lays down specific provisions regarding the composition of the jury. (20)
21. Lastly, Article 82 of Directive 2014/24, the interpretation of which is requested in the question referred for a preliminary ruling, lays down provisions on the decisions of the jury.
22. In particular, Article 82(2) and (4) establish the anonymity rule. According to Article 82(2) of Directive 2014/24, the jury must examine the plans and projects submitted by the candidates anonymously and solely on the basis of the criteria indicated in the contest notice. Under Article 82(4), anonymity must be observed until the jury has reached its opinion or decision.
23. The reason for anonymity is to ensure that the designs submitted are assessed objectively and impartially. Anonymity ensures that the jury assesses the designs solely on the basis of their intrinsic merits, according to predefined, clear and non-discriminatory selection criteria, and without being influenced, consciously or unconsciously, by the candidates’ identity and reputation. Indeed, since, as has already been mentioned, the purpose of a design contest is to assess creative works on the basis of their aesthetic, conceptual, functional or technical qualities, given the intrinsically artistic and conceptual nature of such works, their assessment necessarily entails a certain degree of subjectivity, particularly with regard to the assessment of the aesthetic aspects and the conceptual content. Accordingly, there is a greater risk of bias on the part of the jury, which could favour, even unconsciously, renowned professionals. Anonymity ensures that the jury is objective and that the principles of equal treatment and fair competition are observed. Therefore, the maintenance of strict anonymity during the assessment of designs ensures equal treatment of participants and strengthens the legitimacy and transparency of the procedure, and thus plays a fundamental role in this type of procedure.
24. However, Directive 2014/24 does not categorically rule out any form of dialogue between the jury and the candidates. Article 82(5) states in fact that ‘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’. Article 82(6) provides that ‘complete minutes shall be drawn up of the dialogue between jury members and candidates’.
25. It is within the regulatory framework of Directive 2014/24 described in the preceding paragraphs that the question referred by the referring court must be analysed.
B. Recognition of a right to a prior hearing in design contests under Directive 2014/24
26. In order to answer the question referred, it is first necessary to ascertain whether, within that regulatory framework, a prior hearing of the candidates in design contests, before the jury adopts the evaluation decision, can be considered mandatory.
27. In the first place, it should be noted that the abovementioned provisions of Chapter II of Title III of Directive 2014/24 do not expressly provide for the holding of a prior hearing of the interested parties in design contests.
28. Referring to an argument made by Adão da Fonseca, the referring court wonders, however, whether the possibility of initiating a dialogue between the candidates and the jury provided for in Article 82(5) and (6) of Directive 2014/24 could justify the possibility of examining and learning about the designs proposed by the candidates at a hearing without breaching confidentiality and anonymity.
29. In that regard, I do not consider that the provisions of Article 82(5) and (6) of Directive 2014/24 may be interpreted as conferring a right on candidates to a prior hearing in design contests.
30. It is clear from the wording of Article 82(5) that candidates ‘may’ be invited ‘if need be’ to answer questions that the jury has recorded in the minutes to provide clarifications on the projects. That provision therefore explicitly grants the jury discretion to request clarification from the candidates regarding the projects, and not a right for the candidates to demand that such clarification be provided.
31. The purpose of providing for that possibility to request clarification is to dispel doubts that the jury may have about specific aspects of the project submitted, thus contributing to a more informed and fairer assessment. Besides, it is simply a request for clarification. The provision of that possibility is certainly not intended to allow candidates to supplement the project ex post, beyond the jury’s requests for clarification.
32. Furthermore, in the exercise of the discretion conferred on it, the jury must treat the various candidates equally and fairly, such that a request for clarification cannot appear unduly to have favoured or disadvantaged the candidate or candidates to which the request was addressed, once the design contest procedure has been completed and in the light of its outcome. (21)
33. It is also evident that the possibility for the jury to request clarification from one or more candidates must be balanced with the anonymity rule, which, as is apparent from Article 82(4) of Directive 2014/24, must be observed until the jury has reached a decision. Were that not the case, as the Portuguese government rightly points out, the effectiveness of the anonymity rule would risk being frustrated by the request for clarification. As the Commission suggests in its observations, the rule requiring anonymity of candidates may be observed by using an intermediary (such as the contracting authority or an independent third party) or using technical or electronic means (such as an IT platform).
34. In the second place, the need for a prior hearing of the interested parties in design contests to be held, before the jury adopts its decision, cannot be inferred from any provision of Title I of Directive 2014/24, to which Article 80(1) thereof refers.
35. Specifically, no such need arises from any of the fundamental principles for the award of contracts set out in Article 18 of Directive 2014/24, including in particular the principles of equal treatment and transparency, which, rather, seem at odds with the recognition of a right to a prior hearing of the candidates in those procedures.
36. It is clear from the case-law that the objective of the principle of equal treatment is to encourage the development of healthy and effective competition between undertakings taking part in the tender, who must be on an equal footing both when they draw up their projects and when those projects are being assessed. Whereas the principle of transparency is intended to preclude any risk of favouritism or arbitrariness on the part of the jury. (22)
37. A prior hearing, regardless of the form in which it is held, always carries the risk of potentially compromising the participants’ anonymity, which, as we have seen, plays a fundamental role in design contest procedures on account of their particular nature. (23) In the specific case of design contests, holding a prior hearing of the candidates therefore risks both compromising the equal treatment of the candidates and influencing the jury’s assessment, contrary to both of the abovementioned principles.
38. In the third place, the question arises whether, in the absence of a specific provision in that regard in Directive 2014/24, that directive and in particular the anonymity rule allow or prevent a Member State from providing, in its national law, for a mandatory prior hearing of the interested parties in design contests, before the jury adopts the evaluation decision.
39. In that regard, as noted in point 18 above, since Directive 2014/24 does not fully harmonise the rules on design contests, it is settled case-law that it is for each Member State to lay down the detailed rules of administrative procedures, in accordance with the principle of the procedural autonomy of the Member States, while complying with the fundamental principles of procurement set out in Article 18 of Directive 2014/24. Those detailed procedural rules must, however, be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render impossible in practice or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness). (24)
40. It is my view, however, that the recognition in national legislation of a right to a mandatory prior hearing of candidates in design contests would run counter to the logic of the rules provided for in Directive 2014/24 for such contests, particularly with respect to the fundamental requirement of ensuring anonymity until the jury adopts its decision.
41. Indeed, as mentioned in the previous points, although it is theoretically possible that a prior hearing may be held in a way that maintains anonymity, any contact between the jury and the candidates increases the risk of that anonymity being breached, undermining the effectiveness of the anonymity rule.
42. From that perspective, it is no coincidence that Directive 2014/24 allows for the possibility of contact between the jury and the candidates only if ‘need be’. (25) All the provisions of Article 82 of Directive 2014/24 point to the intention of the EU legislature to strike a balance between, on the one hand, the principle of anonymity, which is essential to ensure the impartiality of the jury’s assessment, and, on the other hand, the flexibility necessary to ensure a full understanding of the projects submitted, while maintaining the essential requirement of anonymity, which, as a guarantor of the impartiality of the assessment, must be considered inviolable.
43. Furthermore, notwithstanding the principle of procedural autonomy and the freedom it allows Member States to set procedural rules, subject to compliance with the fundamental principles on procurement, the projects submitted by candidates must be complete and comprehensible and to a certain extent self-standing and self-explanatory. Responsibility for submitting a complete project lies with the candidate, who must exercise due diligence in the drafting of its project in order to make it clear. (26) In the procedure set out in Directive 2014/24, apart from the request for clarification referred to in Article 82(5), no subsequent amendments to the project or other procedural steps are permitted. Therefore, to introduce a mandatory hearing after the project has been submitted would also run counter to the overall scheme of the procedure set out in Directive 2014/24.
44. Similarly, by application by analogy of the case-law on public contracts, the principles of equal treatment and transparency provided for in Article 18 of Directive 2014/24 – which, as we have seen, is also applicable to design contests – preclude any negotiation between the jury and a candidate during a design contest procedure, which means that, as a general rule, a project, once presented, cannot be amended after it has been submitted, whether at the request of the contracting authority or at the request of the candidate. (27)
45. It follows from all the foregoing considerations that Directive 2014/24 precludes a Member State from providing, in its national law, for a mandatory prior hearing of the interested parties in design contests, before the jury adopts the evaluation decision.
C. The need for a prior hearing in design contests on the basis of the right to be heard
46. It is still, nevertheless, necessary to ascertain whether, before the jury adopts the evaluation decision, participants in design contests are entitled to a prior hearing on the basis of the right of every person to be heard before any individual measure which would affect him or her adversely is taken.
47. That right is expressly laid down in Article 41(2)(a) of the Charter of Fundamental Rights of the European Union – to which the Commission and the Portuguese Government refer in their observations – as a particular expression of the right to good administration.
48. However, Article 41 of the Charter is addressed to the institutions, bodies, offices or agencies of the European Union and not to the institutions, bodies, offices or agencies of the Member States, with the result that an individual may not rely directly on that article in respect of national contracting authorities. Where a Member State implements EU law, the requirements pertaining to the right to good administration, as a general principle of EU law, including the right of any person to be heard in administrative proceedings, are applicable in a procedure conducted by the competent national contracting authorities. (28)
49. As regards the substance of the right to be heard, it is clear from the case-law that that right guarantees every person the opportunity to make known his or her views effectively during an administrative procedure and before the adoption of any decision liable to affect his or her interests adversely, including where that formality is not provided for by the applicable legislation. (29) That right also requires the authorities to pay due attention to the observations thus submitted by the person concerned, examining carefully and impartially all the relevant aspects of the individual case and giving a detailed statement of reasons for their decision. (30) The right to be heard is intended in particular to ensure that any decision adversely affecting a person is adopted with full knowledge of the facts. (31)
50. More specifically, the Court has expressly pointed out that the detailed rules made to ensure that those concerned are able to exercise their right to be heard prior to the adoption of a decision concerning them must be assessed in the light of the objective of the legislation in question. (32)
51. Furthermore, fundamental rights, such as the right to be heard, do not constitute unfettered prerogatives and may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the measure in question and that they do not involve, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed. (33)
52. First, it should be noted that a jury decision adopted in a design contest procedure such as the one at issue in the present case is capable of adversely affecting a participant such as Adão da Fonseca. Indeed, it appears from the order for reference that that decision is binding on the contracting authority and that only the three highest ranked projects in the ranking drawn up by the jury will be selected to participate in a direct award procedure. Failure to be ranked among the top three projects is a bar to the award of the service contract for the project and thus represents a loss of an economic opportunity.
53. Next, it should be noted that in the case before the referring court, EU law, and in particular Directive 2014/24, lays down non-exhaustive rules that determine the conditions and detailed arrangements for the organisation of design contests.
54. Since, as is clear from the case-law referred to in point 50 of the present Opinion, the detailed arrangements for the exercise of the right to be heard must be examined in relation to the legal rules governing the matter under consideration and their objective, the mechanisms by which candidates in a design contest must be able to exercise their right to be heard before the jury reaches a decision must be assessed in the light of the provisions of Chapter II of Title III of Directive 2014/24. Those provisions are intended, in particular, to establish minimum standards for the harmonisation of design contest procedures, specifically with a view to ensuring equal and non-discriminatory treatment of candidates.
55. In that regard, in the first place, it is clear from the considerations set out in the present Opinion regarding those provisions that, in order to express their views on the projects submitted during the design contest, the jury must examine the plans and projects submitted by the candidates anonymously and solely on the basis of the criteria indicated in the contest notice. (34) In the second place, it is also clear that the anonymity rule is inviolable since, owing to the particular nature of the design contest procedure, that rule is necessary to ensure the independence of the jury and equal treatment of candidates. (35) In the third place, the candidate has a duty of due diligence in drafting its project, which must be clear, intelligible, complete and self-explanatory. (36) In the fourth place, the provisions of Directive 2014/24 nonetheless provide for a clearly framed possibility of dialogue between the candidates and the jury, solely at the request of the jury and in compliance with the anonymity rule, in order to clarify any aspect of the project. (37) As we have observed, that was the solution chosen by the legislature to ensure a balance between maintaining the principle of anonymity and having the necessary flexibility to enable the jury to gain a proper understanding of the designs submitted.
56. In those circumstances, I consider that the combination of those provisions allows candidates to express their point of view on all of the relevant elements of the project submitted in the design contest. Accordingly, the right to be heard before the jury reaches a decision may be considered effectively observed within this type of procedure.
57. In particular, the fact that candidates can essentially set out their point of view as part of the presentation of their project and, only if deemed necessary by the jury, potentially in other forms, provided that the anonymity rule is observed, does not constitute an impediment to the effective observance of their right to be heard before a decision is reached on the design contest they are participating in. (38)
58. It follows from the foregoing that the general principle of EU law recognising the right to be heard does not require a prior hearing of the participants in design contests to be held before the jury adopts the evaluation decision.
D. Conclusion
59. For the reasons set out above, I therefore propose that the Court give the following answer to the question referred by the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal):
Article 82(4), (5) and (6) 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 well as Article 80(1) of that directive, read in the light of the general principle of EU law recognising the right to be heard in administrative proceedings,
must be interpreted as precluding a mandatory requirement for a prior hearing of participants in the design contests referred to in that directive.