Information;Order — ECLI:EU:C:2021:837
Date: 2021-10-06
Language of the case: Dutch
Court formation: Ninth Chamber
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary  C-316/21 – 1 
Case C-316/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
21 May 2021 
Referring court:  
Raad van State (Belgium) 
Date of the decision to refer:  
7 May 2021 
Applicant:  
Monument Vandekerckhove NV 
Defendant:  
Stad Gent 
Interveners: 
Denys NV 
Aelterman BVBA 
which together form a temporary association 
  
Subject of the action in the main proceedings 
The main proceedings concern an action for annulment, lodged on 4 October 
2019, of the decision of 10 July 2019 of the College van burgemeester en 
schepenen (Executive Committee of the City Council, comprising the Mayor and 
Executive Councillors) of the city of Ghent concerning the public works contract 
entitled “‘Restoration of protected gasholders’ Gasmeterlaan / Tondelierlaan, 
9000 Gent”, relating to the non-selection of the tender submitted by nv Monument 
Vandekerckhove, and awarding the contract to the temporary association Denys-
Aelterman. 
EN NL
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-316/21 
 
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Subject and legal basis of the request for a preliminary ruling 
The request for a preliminary ruling concerns the interpretation of the second 
paragraph 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/EC (OJ 2014 L 94, p. 65) and the interpretation of that 
provision in conjunction with the principles of equality, non-discrimination and 
transparency in public procurement.  
Questions referred 
1. Must the second paragraph 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/EC, taken on its own and in 
conjunction with the scope of the principles of European law, namely equality, 
non-discrimination and transparency in public procurement, be interpreted as 
meaning that, if the contracting authority ascertains that an entity on whose 
capacity an economic operator relies does not fulfil the selection criteria, it is 
obliged to request that entity’s replacement or that it has the option to request such 
replacement if the economic operator wishes to be selected? 
2. Are there circumstances in which, on the basis of the principles of equality, 
non-discrimination and transparency, and also depending on the conduct of the 
award procedure, the contracting authority is not, or is no longer, obliged, or is 
not, or is no longer, permitted to insist on replacement?  
Provisions of European Union law cited 
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 (OJ 
2014 L 94, p. 65) (‘Directive 2014/24’): Article 63(1), second paragraph. 
Provisions of national law cited 
Koninklijk besluit van 18 april 2017 plaatsing overheidsopdrachten in de klassieke 
sectoren (Royal Decree of 18 April 2017 on the award of public contracts in the 
traditional sectors; ‘Royal Decree of 2017 on the award of public contracts’), 
more specifically, the second paragraph of Article 73(1) thereof – which, 
according to the Report to the King (Belgisch Staatsblad, 9 May 2017, p. 55374 
ff.) transposes Article 63 of Directive 2014/24 – and provides that the contracting 
authority must verify whether the entities on whose capacity the economic 
operator intends to rely fulfil the relevant selection criteria, and whether there are 
grounds for exclusion that apply to them, without prejudice to the possibility of 
corrective measures, and must require that the economic operator replaces an 
entity in respect of which there are grounds for exclusion or which does not fulfil 
MONUMENT VANDEKERCKHOVE 
 
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a relevant selection criterion. Moreover, the contracting authority may require that 
the economic operator substitutes an entity in respect of which there are non-
compulsory grounds for exclusion. Failure to comply with a request for 
replacement will result in a decision of non-selection.  
Brief summary of the facts and the procedure in the main proceedings  
1 The City of Ghent called for tenders for a public works contract in respect of the 
“Restoration of protected gasholders”. This contract was awarded by means of a 
public procedure with the lowest price as the sole award criterion. The estimated 
value of the contract is EUR 4 265 221.01, exclusive of VAT.  
2 The specifications include selection criteria concerning the tenderer’s technical 
and professional ability. The specifications contain criteria relating to educational 
and professional qualifications as well as evidence of general expertise relating to 
the contract, and stipulate that, in relation to the restoration technique of riveting, 
the necessary experience must be demonstrated on the basis of at least one 
reference to the value of a minimum of EUR 100 000, exclusive of VAT. If the 
riveting is carried out by subcontractors, such a reference must be submitted for 
each subcontractor listed. Subcontractors are subject to the same criteria with 
regard to general expertise and educational and professional qualifications as the 
contractors.  
3 Four tenderers submitted tenders, including the applicant and the temporary 
association Denys-Aelterman.  
4 After opening the tenders, the defendant asked the applicant for documents and 
further information, inter alia, concerning the technical riveting competence of the 
subcontractors specified by the applicant. The applicant responded to all requests.  
5 The award report of 26 June 2019 proposed that only Denys NV and Aelterman 
BVBA, the interveners, be selected and that the contract be awarded to them. The 
applicant was thus not selected because only one of the three subcontractors it 
specified fulfils the selection requirements. The other two subcontractors do not 
fulfil the requirements because of the lack of diplomas and the inadequacy of 
references.  
6 On 10 July 2019, referring to the award report, the defendant awarded the contract 
to the interveners (‘the contested decision’).  
7 By application of 21 August 2019, the applicant requested that the implementation 
of the contested decision be suspended under the so-called ‘emergency’ 
procedure.  
8 By judgment of 12 September 2019, the Raad van State (Council of State), the 
referring court, rejected the application for the suspension of the implementation 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-316/21 
 
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of the contested decision under the emergency procedure (‘the judgment 
dismissing the application for suspension’).  
Main submissions of the parties to the main proceedings 
9 Monument Vandekerckhove NV 
10 The applicant submits, inter alia, that (i) the second paragraph of Article 73(1) of 
the Royal Decree of 2017 on the award of public contracts has been infringed and 
that (ii) the obligation to state reasons has not been fulfilled because no reasons of 
any kind were given as to why the aforementioned provision was not applied. 
11 By its first plea, the applicant submits, in essence, that there was a wrongful 
failure to select it on the grounds that two of the three subcontractors it had 
specified on whose capacity it intended to rely do not fulfil the selection criteria. It 
takes the view that, pursuant to the second paragraph of Article 73(1) of the Royal 
Decree of 2017 on the award of public contracts, the defendant should have given 
it the option to propose other subcontractors to replace those which, in its view, do 
not fulfil the requirements. However, the defendant failed to do so.  
12 The applicant further submits that, in the judgment dismissing the application for 
suspension, the Raad van State had wrongly referred to the judgment of the Court 
of Justice of 14 September 2017 in Case C-223/16, Casertana Costruzioni srl, 
EU:C:2017:685. It submits that the aforementioned judgment of the Court of 
Justice is based on Article 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, whereas the second paragraph of Article 63(1) of 
Directive 2014/24/EC, which the second paragraph of Article 73(1) of the Royal 
Decree of 2017 on the award of public contracts reproduces almost verbatim, 
introduced substantial amendments as regards the right of an economic operator to 
rely on the capacity of other entities in respect of a public contract.  
13 According to the applicant, in the aforementioned judgment the Court of Justice 
adhered strictly to the principles of transparency and equality. It is of the view, 
however, that in the present case there is no risk of those principles being 
infringed. As regards the principle of transparency, it points out that it was clear to 
all tenderers that the replacement option existed, since Article 73(1) of the Royal 
Decree of 2017 on the award of public contracts is applicable. In its opinion, there 
is also no risk of the principle of equality being infringed, since the replacement of 
two subcontractors has no effect on the sole award criterion – price – and 
therefore the ranking is not affected.  
14 The applicant takes the view that the second paragraph of Article 73(1) of the 
Royal Decree of 2017 on the award of public contracts should be read as meaning 
that that provision applies in principle and that the contracting authority can only 
exceptionally argue that it will not permit the replacement, namely, if the 
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principles of equality, non-discrimination, transparency and proportionality are 
threatened.  
15 Stad Gent 
16 The defendant refers to the grounds of the judgment dismissing the application for 
suspension and to the historical origins of the second paragraph of Article 63(1) of 
Directive 2014/24.  
17 Referring to the judgment of the Court of Justice of 14 September 2017 in Case 
C-223/16, Casertana Costruzioni srl, EU:C:2017:685, it submits that the 
principles of equality and transparency in public procurement law preclude 
tenders from being amended after they have been submitted. In that connection, it 
points out – also with reference to the aforementioned judgment – that, although 
the right of an economic operator to rely on the capacities of other entities in 
relation to a public contract has been substantially amended, that does not mean, 
in its view, that a contracting authority is in any event always obliged to allow a 
tenderer to replace defaulting subcontractors.  
18 Interveners 
19 The interveners note that an obligation of replacement on the part of the 
contracting authority can only apply in so far as it does not imply an amendment 
to the tender, or the regularisation of an essential defect which already existed 
when the tender was submitted. To require the replacement of a third party, in this 
case a subcontractor, which did not fulfil the selection requirements at the time 
that the tender was submitted would, in their opinion, allow the tenderer to amend 
and regularise the tender, which would give the tenderer an advantage 
incompatible with the requirement of equal treatment.  
20 The interveners further point out that the applicant’s reading of Article 73(1) of 
the Royal Decree of 2017 on the award of public contracts is, in their view, 
incompatible with the case-law of the Court of Justice on the principles of equality 
and transparency in public procurement.  
Brief summary of the reasons for the referral 
21 The referring court notes, first, that the tender specifications allow a tenderer to 
rely on the technical and professional ability of other entities in order to 
demonstrate that it fulfils the selection criteria and, second, that, in the context of 
the public contract in question, the applicant intends to rely on subcontractors for 
the restoration technique of riveting and has listed three undertakings in its tender, 
from which it may be inferred that it intends to rely on the capacities of those 
subcontractors. However, after having requested documents from the applicant on 
two occasions to demonstrate the technical ability of the proposed subcontractors 
in the riveting field, the contracting authority decided that only one of the three 
proposed subcontractors fulfils the selection requirements.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-316/21 
 
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22 The referring court states that the application for the suspension of the 
implementation of the contested decision was dismissed on the basis of its prima 
facie assessment that (i) it was not possible to agree with the premiss of the single 
plea, namely, that a tenderer must be given the unconditional option of proposing 
a replacement for a subcontractor it had proposed, and that the contracting 
authority is obliged to require this; and that (ii) the contracting authority appears 
to have a certain margin of discretion with regard to the application of the second 
paragraph of Article 73(1) of the Royal Decree of 2017 on the award of public 
contracts. The plea, as it is now formulated in the present annulment proceedings, 
is less categorical and recognises the role of the principles of equality and 
transparency.  
23 De Raad van State points out that the applicant reads into the second paragraph of 
Article 73(1) of the Royal Decree of 2017 on the award of public contracts that 
the contracting authority is obliged to request a tenderer to replace the entity on 
whose capacity it intends to rely and which does not fulfil the selection criterion, 
and that the contracting authority can only exceptionally argue that it will not 
permit the replacement, namely, if the principles of equality, non-discrimination, 
transparency and proportionality are threatened. The applicant concludes that it is 
only if the tenderer does not comply with the request for replacement that the 
contracting authority is entitled to decide not to select the tenderer.  
24 Consequently, the question that arises in the present case, both in relation to the 
plea alleging, inter alia, infringement of the second paragraph of Article 73(1) of 
the Royal Decree of 2017 on the award of public contracts and in relation to the 
plea alleging failure to comply with the obligation to state reasons, concerns the 
scope of the second paragraph of Article 73(1) of the Royal Decree of 2017 on the 
award of public contracts, which reproduces, almost verbatim, Article 63(1) of 
Directive 2014/24. That provision makes no distinction between contracts above 
or below the threshold value set for contracts published in Europe. In the present 
case, the contract in question is below that threshold. The value of the contract 
was estimated at EUR 4 265 221.01, whereas the threshold value was 
EUR 5 548 000 excluding VAT.  
25 The referring court notes that, according to the settled case-law of the Court of 
Justice, the interpretation of provisions of European Union law by the Court of 
Justice in situations which do not fall within the scope of that law is justified when 
those provisions have been made directly and unconditionally applicable to such 
situations by national law, in order to ensure that those situations are treated in the 
same way as situations which do fall within the scope of those provisions 
(judgment of 18 October 1990, C-297/88, Dzodzi, EU:C:1990:360, paragraphs 33 
ff., judgment of 14 March 2013, C-32/11, Allianz Hungária Biztosító Zrt. and 
Others, C-32/11, EU:C:2013:160, paragraph 20, judgment of 4 April 2019, 
C-699/17, Allianz Vorsorgekasse AG, EU:C:2019:290, judgment of 10 September 
2020, C-367/19, Tax-Fin-Lex, EU:C:2020:685, paragraph 21). It therefore asks the 
Court of Justice to clarify the scope of the second paragraph of Article 63(1) of 
Directive 2014/24.  
MONUMENT VANDEKERCKHOVE 
 
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26 More specifically, the question arises whether the sentence ‘the contracting 
authority shall require that the economic operator replaces an entity which does 
not meet a relevant selection criterion, or in respect of which there are compulsory 
grounds for exclusion’ in the relevant provision of the directive at issue, imposes 
an obligation on the contracting authority, and thus creates an entitlement for the 
tenderer to replace the subcontractor concerned, or merely creates the option for 
the contracting authority to require the economic operator to replace that entity – 
and if so, in what circumstances. The question also arises whether, under any of 
the previous hypotheses, there are circumstances in which, on the basis of the 
principles of equality and non-discrimination and transparency, for example, in 
the conduct of the award procedure, the contracting authority no longer must or no 
longer may require a replacement.  
27 The referring court points out that in the judgment of 14 September 2017, 
C-223/16, Casertana Costruzioni srl, EU:C:2017:685, paragraph 26 – see also 
paragraph 36 in the Opinion of Advocate General N. Wahl, EU:C:2017:365) and 
the judgment of 7 April 2016, Partner Apelski Dariusz, C-324/14, 
EU:C:2016:214, paragraph 90 – the Court of Justice noted that Article 63 of 
Directive 2014/24 introduced substantial amendments as regards the right of an 
economic operator to rely on the capacities of other entities in the context of 
public contracts. In those circumstances, it appears to the referring court that the 
earlier case-law of the Court of Justice on Directive 2004/18 is not applicable in 
all respects.  
28 The Raad van State is of the view that the second paragraph of Article 63(1) of 
Directive 2014/24 must be understood as meaning that the contracting authority 
has the option, and not the obligation, to require the economic operator to replace 
an entity on whose capacity the economic operator intends to rely and which does 
not fulfil the selection requirements. However, in exercising that option, the 
contracting authority must respect the principles of equality, non-discrimination 
and transparency.