In its recent decision under no 539/2025, the CoS sought to further define the notion of legitimate interest of a party not definitively excluded from a public tender to seek the exclusion of its competitors.

It ruled that, an economic operator who has not been definitively excluded but has submitted a bid unrelated to the subject matter of the contract, lacks a legal interest in challenging a competitor’s offer, because, in case of cancellation of the procedure, in order to effectively claim, in any new tender that may be launched, the award of a supply contract -the subject matter of which will be similar to that of the supply in question- it is not sufficient to submit a corrected bid in relation to missing technical specifications and requirements needed, but a completely different bid, corresponding to the physical subject matter of the contract, the supply of which is the aim of the tender. So, both its participation in the tender and its attempt to have it annulled are considered abusive and not worthy of judicial protection.

The Court held that the case law of the ECJ on the existence of a legal interest of an economic operator who has not been definitively excluded, applies in cases where the tenderers offer the type of product requested in the tender notice and not in cases where a tenderer submits a tender which has no connection with the tender notice.

This significant ruling adopts a more pragmatic approach to addressing obstacles in the completion of competitive bidding processes.