Case C‑234/14
‘Ostas celtnieks’ SIA
v
Talsu novada pašvaldība
and
Iepirkumu uzraudzības birojs
(Request for a preliminary ruling
from the Augstākā tiesa)
(Reference for a preliminary ruling— Public procurement contracts— Directive 2004/18/EC— Economic and financial standing— Technical and/or professional ability— Articles47(2) and 48(3)— Tender specifications laying down the obligation for a tenderer to conclude a cooperation agreement or to set up a partnership with the entities on whose capacities it relies)
Summary— Judgment of the Court (First Chamber), 14January 2016
1.Questions referred for a preliminary ruling— Jurisdiction of the Court— Provisions of EU law made applicable by national law directly and unconditionally to situations outside their scope— Included
(Art.267 TFEU; European Parliament and Council Directive 2004/18, Art.7)
2.Approximation of laws— Procedures for the award of public works contracts, public supply contracts and public service contracts— Directive 2004/18— Award of contracts— Criteria for qualitative selection— Technical and professional ability —Contracting authority requiring tenderers relying on the capacities of third party entities to conclude a cooperation agreement with those entities or to set up a partnership with them— Not permissible
(European Parliament and Council Directive 2004/18, Arts47(2) and 48(3))
1.See the text of the decision.
(see paras19, 20)
2.Articles47(2) and 48(3) of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as precluding a contracting authority, in the tender specifications relating to the award of a public contract, from imposing on a tenderer which relies on the capacities of other entities the obligation, before the contract is awarded, to conclude a cooperation agreement with those entities or to form a partnership with them.
In the context of the verification by the contracting authority of the tenderer’s suitability to perform a particular contract, Articles47(2) and 48(3) of Directive 2004/18 do not make it possible either to assume that a tenderer has or has not the means necessary to perform the contract or, a fortiori, to exclude a priori certain types of proof. It follows that the tenderer is free to choose, on one hand, the legal nature of the links it intends to establish with the other entities on whose capacities it relies in order to perform a particular contract and, on the other, the type of proof of the existence of those links. Furthermore, by expressly providing that it is only by way of example that the production of an undertaking by other entities to make available to the tenderer the resources necessary for the performance of the contract is acceptable proof of the fact that it actually has those resources, Articles47(2) and 48(3) of Directive 2004/18 by no means preclude the tenderer from establishing in another way the existence of the links between it and other entities on whose capacities it relies for the proper performance of the contract.
(see paras26-29, 34, operative part)