Judges M Safjan, N Piçarra, N Jääskinen, M Gavalec (Rapporteur)
Advocate General M Campos Sánchez-Bordona
The contracting authority ranked the claimant economic operator in fourth position in a call for tenders for a contract to draft documents for the construction of a road in Romania. The economic operator applied to the Romanian National Council for the Resolution of Disputes seeking the disqualification of the three tenderers ranked above it and a new assessment of the tenders, on the ground that those tenderers did not comply with requirements imposed on the basis of special laws governing various activities that had to be carried out during the performance of the contract, albeit that they were not set out in the procurement documents. The National Council observed that an economic operator could not be excluded from the procurement procedure on the ground that it had not complied with requirements that were not set out in the procurement documents. Pursuant to article 58 of Parliament and Council Directive 2014/24/EU, selection criteria could relate to: “(a) suitability to pursue the professional activity; (b) economic and financial standing; (c) technical and professional ability”. It went on to provide that “contracting authorities may only impose criteria in paragraphs 2, 3 and 4 on economic operators as requirements for participation. They shall limit any requirements to those that are appropriate to ensure that a candidate or tenderer has the legal and financial capacities and the technical and professional abilities to perform the contract to be awarded. All requirements shall be related and proportionate to the subject matter of the contract”. Article 63 conferred the right for any economic operator to rely, for a particular contract, on the capacities of other entities, regardless of the legal nature of the links which it had with them, with a view to satisfying the various categories of selection criteria set out in article 58(1). The Romanian courts were divided on the issue of whether a contracting authority could exclude an economic operator whose offer did not comply with an obligation under the applicable rules, without allowing the possibility of rectifying the tender and despite that obligation not having been expressly referred in the procurement documents. The National Council, accordingly, stayed the proceedings and referred questions to the Court of Justice of the European Union, asking, in essence, whether (i) article 58 of Directive 2014/24, read in conjunction with the principles of proportionality and transparency in article 18(1), meant that the contracting authority had the option of imposing obligations under special laws applicable to the activities as selection criteria which were not of significant importance, (ii) article 18(1) precluded procurement documents from being automatically supplemented with qualification criteria arising under special laws applicable to activities relating to the contract which the contracting authority decided not to impose on the economic operators; and (iii) whether article 63(1) of the Directive precluded a tenderer from being excluded from a procurement procedure on the ground that it had not designated a subcontractor, where that tenderer stated in its offer that it would perform those obligations by relying on the capacities of another entity without having a subcontract agreement in place.
On the reference—
Held, (1) as it was best placed to assess its own needs, the contracting authority was granted a broad discretion by the EU legislature when determining selection criteria. In the exercise of that broad discretion, the contracting authority could decide to include obligations under special laws applicable to the activities that might be required to perform the public contract and which were not of significant importance or conversely, the contracting authority might consider that it was not necessary to include those obligations amongst the selection criteria. Parliament and Council Directive 2014/24/EU did not preclude the consideration of technical requirements as selection criteria relating to technical and professional ability. Furthermore, to oblige tenderers to satisfy all the conditions of performance of the contract at the time of submission of their tenders would be to impose an excessive requirement—one which might dissuade economic operators from participating in procurement procedures—and would thus infringe the principles of proportionality and transparency guaranteed by article 18(1) of the Directive. Accordingly, article 58 of Directive 2014/24/EU meant that the contracting authority had the option of imposing as selection criteria obligations under special laws applicable to the activities that might be required to be carried out in the context of performing the public contract and were not of significant importance (judgment, paras 60, 61–62, 63, 65, 66, operative part, para 1).
(2) The principles of proportionality and of transparency guaranteed by the first subparagraph of article 18(1) of Directive 2014/24 precluded procurement documents from being automatically supplemented with qualification criteria arising under special laws applicable to activities relating to the contract to be awarded which were not set out in the procurement documents and which the contracting authority decided not to impose on the economic operators concerned (judgment, para 69, operative part, para 2).
(3) Where the obligations under special laws applicable to activities related to the contract and which were not provided for in the procurement documents in fact constituted selection criteria within the meaning of article 58 of Directive 2014/24, article 63(1) of that Directive conferred the right for any economic operator to rely on the capacities of other entities, regardless of the legal nature of the links which it had with them. It was clear from the last sentence of article 63(1) that, where an economic operator wanted to rely on the capacities of other entities, it sufficed for it to prove to the contracting authority that it would have at its disposal the necessary resources. Consequently, it was clear that subcontracting constituted only one of the means by which an economic operator could rely on the capacities of other entities and it could not, therefore, be required of it by the contracting authority. Accordingly, article 63(1) of Directive 2014/24 precluded the exclusion of a tenderer from a procurement procedure on the ground that it had not designated the subcontractor to which it intended to entrust the performance of obligations under special laws applicable to the activities related to the contract in question and not provided for in the procurement documents, where that tenderer had stated in its offer that it would perform those obligations by relying on the capacities of another entity without having a subcontract agreement with that entity (judgment, paras 72–75, operative part, para 3).
M Smolek and J Vláčil, agents, for the Czech Government.
P Ondrůšek, EA Stamate and G Wils, agents, for the European Commission.