# C_2016211EN.01000802.xml

| 13.6.2016 | EN | Official Journal of the European Union | C 211/8 |
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13.6.2016

EN

Official Journal of the European Union

C 211/8

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Judgment of the Court (First Chamber) of 7 April 2016 (request for a preliminary ruling from the Krajowa Izba Odwoławcza — Poland) — Partner Apelski Dariusz v Zarząd Oczyszczania Miasta

(Case C-324/14) (1)

((Reference for a preliminary ruling - Public procurement - Directive 2004/18/EC - Technical and/or professional abilities of economic operators - Article 48(3) - Possibility to rely on the capacities of other entities - Conditions and procedures - Nature of the links between the tenderer and the other entities - Amendment of the tender - Annulment and repetition of an electronic auction - Directive 2014/24/EU))

(2016/C 211/09)

Language of the case: Polish

Referring court

Krajowa Izba Odwoławcza

Parties to the main proceedings

Applicant: Partner Apelski Dariusz

Defendant: Zarząd Oczyszczania Miasta

Intervening parties: Remondis sp. z o.o., MR Road Service sp. z o.o.

Operative part of the judgment

| 1. | Articles 47(2) and 48(3) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, read together with Article 44(2) thereof, must be interpreted as meaning that:






  — | they recognise the right of all economic operators, as regards a specific contract, to rely on the capacities of other entities, whatever the nature of the links existing between it and those entities, provided that it is proved to the contracting authority that the candidate or tenderer will have at its disposal the resources of those entities necessary for the performance of that contract, and |
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1.

Articles 47(2) and 48(3) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, read together with Article 44(2) thereof, must be interpreted as meaning that:

—

they recognise the right of all economic operators, as regards a specific contract, to rely on the capacities of other entities, whatever the nature of the links existing between it and those entities, provided that it is proved to the contracting authority that the candidate or tenderer will have at its disposal the resources of those entities necessary for the performance of that contract, and

| — | it is conceivable that the exercise of that right may be limited, in specific circumstances, having regard to the subject matter of the contract concerned and its objectives. Such is the case, in particular, where the capacities that a third party entity has, which are necessary for the performance of that contract, cannot be transferred to the candidate or the tenderer, so that the latter may rely on those capacities only if that third party entity directly and personally participates in the performance of that contract. |
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it is conceivable that the exercise of that right may be limited, in specific circumstances, having regard to the subject matter of the contract concerned and its objectives. Such is the case, in particular, where the capacities that a third party entity has, which are necessary for the performance of that contract, cannot be transferred to the candidate or the tenderer, so that the latter may rely on those capacities only if that third party entity directly and personally participates in the performance of that contract.

| 2. | Article 48(2) and (3) of Directive 2004/18 must be interpreted as meaning that, having regard to the subject matter of a particular contract and its objectives, the contracting authority may, in specific circumstances, for the purpose of the proper performance of that contract, expressly set out in the tender notice or the tender specifications the specific rules in accordance with which an economic operator may rely on the capacities of other entities, provided that those rules are related and proportionate to the subject matter and objectives of that contract. |
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2.

Article 48(2) and (3) of Directive 2004/18 must be interpreted as meaning that, having regard to the subject matter of a particular contract and its objectives, the contracting authority may, in specific circumstances, for the purpose of the proper performance of that contract, expressly set out in the tender notice or the tender specifications the specific rules in accordance with which an economic operator may rely on the capacities of other entities, provided that those rules are related and proportionate to the subject matter and objectives of that contract.

| 3. | The principles of equal treatment and non-discrimination of economic operators, set out in Article 2 of Directive 2004/18, must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, they preclude a contracting authority, after the opening of the tenders submitted in a public procurement procedure, from acceding to the request of an economic operator which has submitted a tender for the whole of the contract concerned, to take its offer into consideration for the purpose of awarding only certain lots of that contract. |
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3.

The principles of equal treatment and non-discrimination of economic operators, set out in Article 2 of Directive 2004/18, must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, they preclude a contracting authority, after the opening of the tenders submitted in a public procurement procedure, from acceding to the request of an economic operator which has submitted a tender for the whole of the contract concerned, to take its offer into consideration for the purpose of awarding only certain lots of that contract.

| 4. | The principles of equal treatment and non-discrimination of economic operators laid down in Article 2 of Directive 2004/18 must be interpreted as meaning that they require the annulment and repetition of an electronic auction in which an economic operator having submitted an admissible tender has not been invited to take part, even if it cannot be established that the participation of that operator would have altered the outcome of the auction. |
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4.

The principles of equal treatment and non-discrimination of economic operators laid down in Article 2 of Directive 2004/18 must be interpreted as meaning that they require the annulment and repetition of an electronic auction in which an economic operator having submitted an admissible tender has not been invited to take part, even if it cannot be established that the participation of that operator would have altered the outcome of the auction.

| 5. | In circumstances such as those in the main proceedings, the provisions of Article 48(3) of Directive 2004/18 cannot be interpreted in the light of those of Article 63(1) 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. |
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5.

In circumstances such as those in the main proceedings, the provisions of Article 48(3) of Directive 2004/18 cannot be interpreted in the light of those of Article 63(1) 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.

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(1)  OJ C 339, 29.9.2014.

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