Opinion of the Advocate General — ECLI:EU:C:2013:130
Date: 2013-02-28
Language of the case: Italian
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary — Judgment of the Court (Fifth Chamber) of 10 October 2013 1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Identification of relevant EU law — Reformulation of the questions (Art. 267 TFEU) 2. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Criteria for qualitative selection — Economic and financial standing and technical and/or professional ability — National legislation prohibiting economic operators from relying on the capacities of more than one entity — Not permissible (European Parliament and Council Directive 2004/18, Arts 47(2) and 48(3)) 1. See the text of the decision. (see paras 24, 25) 2. Articles 47(2) and 48(3) of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, read in conjunction with Article 44(2) of that directive, must be interpreted as precluding a national provision which prohibits, as a general rule, economic operators participating in a tendering procedure for a public works contract from relying on the capacities of more than one undertaking for the same qualification category. A fortiori, those provisions do not lay down any general prohibition regarding a candidate or tenderer’s reliance on the capacities of one or more third-party entities in addition to its own capacities in order to fulfil the criteria set by a contracting authority. That finding is corroborated by several provisions of Directive 2004/18, such as Article 48(2)(b), Article 48(2)(h), Article 4(2) and Article 25 thereof. It is, furthermore, consistent with the objective of attaining the widest possible opening-up of public contracts and is capable of facilitating the involvement of small- and medium-sized undertakings in the contracts procurement market, which is an aim also pursued by that directive. (see paras 30, 31, 34, 38, operative part)