# C_2017168EN.01000601.xml

| 29.5.2017 | EN | Official Journal of the European Union | C 168/6 |
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29.5.2017

EN

Official Journal of the European Union

C 168/6

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Judgment of the Court (Fifth Chamber) of 5 April 2017 (request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas — Lithuania) — ‘Borta’ UAB v Klaipėdos valstybinio jūrų uosto direkcija VĮ

(Case C-298/15) (1)

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((Reference for a preliminary ruling - Public procurement - Directive 2004/17/EC - Contract not reaching the threshold laid down by that directive - Articles 49 and 56 TFEU - Limit on reliance on subcontracting - Submission of a common tender - Professional capacities of the tenderers - Changes to the tender specifications))

(2017/C 168/06)

Language of the case: Lithuanian

Referring court

Referring court

Lietuvos Aukščiausiasis Teismas

Parties to the main proceedings

Parties to the main proceedings

Applicant:‘Borta’ UAB

Applicant:

Defendant: Klaipėdos valstybinio jūrų uosto direkcija VĮ

Defendant:

Operative part of the judgment

Operative part of the judgment

| 1. | As regards a public contract which is not covered by the scope of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, as amended by Commission Regulation (EU) No 1336/2013 of 13 December 2013, but which has a certain cross-border interest, Articles 49 and 56 TFEU must be interpreted as precluding a provision of national law, such as Article 24(5) of the Lietuvos Respublikos viešųjų pirkimų įstatymas (Law on public procurement), which provides that, where subcontractors are relied on for the performance of a public works contract, the tenderer is required to perform itself the main works, as defined by the contracting entity. |
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1.

As regards a public contract which is not covered by the scope of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, as amended by Commission Regulation (EU) No 1336/2013 of 13 December 2013, but which has a certain cross-border interest, Articles 49 and 56 TFEU must be interpreted as precluding a provision of national law, such as Article 24(5) of the Lietuvos Respublikos viešųjų pirkimų įstatymas (Law on public procurement), which provides that, where subcontractors are relied on for the performance of a public works contract, the tenderer is required to perform itself the main works, as defined by the contracting entity.

| 2. | As regards such a public contract, the principles of equal treatment and non-discrimination and the obligation of transparency which derive from Articles 49 and 56 TFEU must be interpreted as meaning that they do not preclude the contracting entity from making changes to a clause in the tender specifications, after publication of the tender notice, relating to the conditions and scheme for combining professional capacities, such as Clause 4.3 at issue in the main proceedings, provided, first, that the changes made are not so substantial that they have attracted potential tenderers which, in the absence of such changes, would not be in a position to submit a tender, second, they are adequately publicised and, third, they are made before the tenderers submit their bids, that the time limit for submitting those tenders is extended when the changes concerned are substantial, the length of that extension depending on the extent of those changes, and that the length of time is sufficient to allow the economic operators concerned to adapt their tender as a consequence, which is for the referring court to ascertain. |
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2.

As regards such a public contract, the principles of equal treatment and non-discrimination and the obligation of transparency which derive from Articles 49 and 56 TFEU must be interpreted as meaning that they do not preclude the contracting entity from making changes to a clause in the tender specifications, after publication of the tender notice, relating to the conditions and scheme for combining professional capacities, such as Clause 4.3 at issue in the main proceedings, provided, first, that the changes made are not so substantial that they have attracted potential tenderers which, in the absence of such changes, would not be in a position to submit a tender, second, they are adequately publicised and, third, they are made before the tenderers submit their bids, that the time limit for submitting those tenders is extended when the changes concerned are substantial, the length of that extension depending on the extent of those changes, and that the length of time is sufficient to allow the economic operators concerned to adapt their tender as a consequence, which is for the referring court to ascertain.

| 3. | Article 54(6) of Directive 2004/17, as amended by Regulation No 1336/2013, must be interpreted as precluding a clause in tender specifications, such as Clause 4.3 at issue in the main proceedings, which, in a case where a common tender is submitted by several tenderers, requires that the contribution of each of them in order to satisfy the requirements applicable with regard to professional capacities correspond, proportionally, to the share of the works that it will actually perform if that bid is successful. |
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3.

Article 54(6) of Directive 2004/17, as amended by Regulation No 1336/2013, must be interpreted as precluding a clause in tender specifications, such as Clause 4.3 at issue in the main proceedings, which, in a case where a common tender is submitted by several tenderers, requires that the contribution of each of them in order to satisfy the requirements applicable with regard to professional capacities correspond, proportionally, to the share of the works that it will actually perform if that bid is successful.

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(1)  OJ C 311, 21.9.2015.

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