# C_2023094EN.01000601.xml

| 13.3.2023 | EN | Official Journal of the European Union | C 94/6 |
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13.3.2023

EN

Official Journal of the European Union

C 94/6

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Judgment of the Court (Third Chamber) of 26 January 2023 (request for a preliminary ruling from the Consiliul Naţional de Soluţionare a Contestaţiilor — Romania) — SC NV Construct SRL v Județul Timiș

(Case C-403/21, (1) NV Construct)

(Reference for a preliminary ruling - Article 267 TFEU - Definition of ‘court or tribunal of a Member State’ - Criteria - Independence and compulsory nature of the jurisdiction of the national body concerned - Stability of the members of that body - Directive 2014/24/EU - Public procurement procedures - Article 58 - Selection criteria - Possibility of including, amongst those criteria, obligations under special laws applicable to the activities connected with the contract in question and not set out as a criterion for selection in the procurement documents - Article 63(1) - Tenderer relying on the capacities of another entity in order to meet the requirements of the contracting authority - Not possible to require recourse to subcontracting)

(2023/C 94/05)

Language of the case: Romanian

Referring court

Consiliul Naţional de Soluţionare a Contestaţiilor

Parties to the main proceedings

Applicant: SC NV Construct SRL

Defendant: Județul Timiș

Intervening parties: SC Proiect — Construct Regiunea Transilvania SRL

Operative part of the judgment

| 1. | Article 58 of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, read in conjunction with the principles of proportionality and of transparency guaranteed by the first subparagraph of Article 18(1) of that directive
  must be interpreted as meaning that the contracting authority has the option of imposing as selection criteria obligations under special laws applicable to the activities that may be required to be carried out in the context of performing the public contract and are not of significant importance |
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1.

Article 58 of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, read in conjunction with the principles of proportionality and of transparency guaranteed by the first subparagraph of Article 18(1) of that directive

must be interpreted as meaning that the contracting authority has the option of imposing as selection criteria obligations under special laws applicable to the activities that may be required to be carried out in the context of performing the public contract and are not of significant importance

| 2. | The principles of proportionality and of transparency guaranteed by the first subparagraph of Article 18(1) of Directive 2014/24
  must be interpreted as precluding 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. |
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2.

The principles of proportionality and of transparency guaranteed by the first subparagraph of Article 18(1) of Directive 2014/24

must be interpreted as precluding 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.

| 3. | Article 63(1) of Directive 2014/24
  must be interpreted as precluding the exclusion of a tenderer from a procurement procedure on the ground that it has not designated the subcontractor to which it intends 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 has stated in its offer that it would perform those obligations by relying on the capacities of another entity without however having a subcontract agreement with that entity. |
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3.

Article 63(1) of Directive 2014/24

must be interpreted as precluding the exclusion of a tenderer from a procurement procedure on the ground that it has not designated the subcontractor to which it intends 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 has stated in its offer that it would perform those obligations by relying on the capacities of another entity without however having a subcontract agreement with that entity.

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(1)  OJ C 401, 4.10.2021.

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