In Case C-396/14 MT Højgaard A/S and Züblin A/S v Banedanmark. the ECJ confirmed its interpretation of the rule on equal treatment in the context of procurement procedure. The case involved a consortium bidding for the construction of a new railway line in Denmark. The railway operator (Banedanmark) had commenced a negotiated procedure with certain pre-qualified consortia. One of these comprised two corporate entities, one of which subsequently became insolvent. The surviving consortium member, Per Aarsleff, decided to continue in the procurement process by itself, and was ultimately successful in winning the contract. One of the unsuccessful consortia then commenced proceedings seeking an annulment of the contract award, on the basis that the procuring authority, Banedanmark, was in breach of the principles of fair treatment and transparency. The ECJ ruled that the principle of equal treatment, read together with Article 51 of Directive 2004/17/EC (the Utilities Directive) did not prohibit a contracting entity from permitting a member of a bidding consortium (which had been invited to tender), to replace that consortium (following its dissolution) and to tender alone in a negotiated procedure. However, in doing so the operator would have to meet all the bidding requirements and not put the other tenderers at a disadvantage. The case was decided. The Directive in question has now been repealed and replaced by Directive 2014/25, but the provisions contained in the new Directive are broadly the same, meaning the decision remains relevant. To read more please click here.