Order;Summary — ECLI:EU:C:2023:25
Date: 2023-01-10
Language of the case: Portuguese
Court formation: Eighth Chamber
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary C-469/22 – 1 
Case C-469/22 
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: 
13 July 2022 
Referring court: 
Supremo Tribunal Administrativo (Portugal) 
Date of the decision to refer: 
23 June 2022 
Appellant: 
Ambisig – Ambiente e Sistemas de Informação Geográfica SA 
Respondents: 
Fundação do Desporto 
ANO – Sistemas de Informática e Serviços Lda 
Link Consulting – Tecnologias de Informação SA 
  
Subject matter of the main proceedings 
The main proceedings concern an appeal on a point of law lodged by Ambisig – 
Ambiente e Sistemas de Informação Geográfica, SA with the Supremo Tribunal 
Administrativo (Supreme Administrative Court), the referring court in these 
proceedings, against the judgment of the Tribunal Central Administrativo Sul 
(Central Administrative Court South; ‘the TCA South’) of 3 February 2022, in 
which the latter court dismissed the earlier appeal brought by the appellant against 
the judgment of 28 September 2021 of the Tribunal Administrativo e Fiscal de 
Leiria (Administrative and Tax Court, Leiria; ‘the TAF, Leiria’). 
At issue is the award of a services contract to Link Consulting – Tecnologias de 
Informação, SA under the tender procedure known as ‘Prestação de serviços de 
desenvolvimento do projeto n.º 044029 – FdD + Juntos pela Eficiência’ (Provision 
of services to take forward project No 044029 – FdD + Together through 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-469/22 
 
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Efficiency); the award has been challenged in the courts in separate actions 
brought by two rejected undertakings, namely ANO – Sistemas de Informática e 
Serviços, Lda, and the appellant in the present proceedings, Ambisig – Ambiente 
e Sistemas de Informação Geográfica, SA. 
Subject matter and legal basis of the request 
Interpretation of EU law – Article 267 TFEU 
Question referred for a preliminary ruling 
Is it consistent with EU law, in particular with Article 63 of Directive 
2014/24/EU, for national law to provide that, in public tender procedures where 
the capacities of other entities are used in order to perform the contract, the 
subcontractor’s qualification documents and the commitment given by the 
subcontractor must be required only after the tender has been awarded? 
Provisions of European Union law relied on 
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, in 
particular Article 63. 
Provisions of national law relied on 
Código dos Contratos Públicos (Public Procurement Code; ‘CCP’), approved by 
means of Decreto-Lei n.º 18/2008 (Decree-Law No 18/2008), in the version in 
force when the events took place, in particular Article 70(2)(a) and (b), 
Article 74(1), Article 75(1), Article 139, Article 168(4) and Article 318(3)(a). 
Portaria n.º 372/2017, de 14 de dezembro, que define as regras e os termos de 
apresentação dos documentos de habilitação do adjudicatário no âmbito de 
procedimentos de formação de contratos públicos (Order No 372/2017 of 
14 December 2017 establishing the arrangements and conditions governing the 
submission of the successful tenderer’s qualification documents in public 
procurement procedures (DR No 239/2017, Series I of 14 December 2017, 
p. 6614)) 
Clause 12 of the tender specifications 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 4 January 2021, ANO – Sistemas de Informática e Serviços, Lda lodged an 
administrative-law action in connection with public procurement with the 
AMBISIG 
 
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Tribunal Administrativo e Fiscal do Porto (Administrative and Tax Court, Oporto; 
‘the TAF, Oporto’) against the Fundação do Desporto, in which, in essence, it 
sought the revocation of the award of a tender to Link Consulting – Tecnologias 
de Informação, SA and of the act which provided the basis for that award, because 
they were void, and sought to have its own offer ranked and placed in first 
position, on the grounds that the award was unlawful and void, and also on 
grounds of breach of the principles of free competition, legality and equal 
treatment. 
2 By decision of 8 March 2021, the TAF, Oporto declared that it lacked territorial 
jurisdiction to rule on the claim, and the case was referred to the TAF, Leiria. 
3 Ambisig – Ambiente e Sistemas de Informação Geográfica, SA lodged an 
administrative-law action in connection with public procurement with the TAF, 
Leiria against the Fundação do Desporto, in which it asked the court to annul the 
‘administrative act which approved the final report by the panel and decided to 
exclude the applicant’s tender and to award the tender to the other party to the 
proceedings [Link Consulting, the successful tenderer in the tender process in 
question]’, and to order the defendant ‘to approve a new contract notice, free from 
the irregularities which had been identified, and to take all appropriate measures 
and steps to ensure the lawful conduct of the tender procedure’. 
4 By judgment of 28 September 2021, both actions were dismissed and the 
defendant, the Fundação do Desporto, was declared to be not liable in respect of 
the claims against it. 
5 Both Ambisig – Ambiente e Sistemas de Informação Geográfica, SA and ANO – 
Sistemas de Informática e Serviços, Lda lodged appeals against the judgment with 
the TCA South, which dismissed the appeals by judgment of 3 February 2022. 
6 Ambisig – Ambiente e Sistemas de Informação Geográfica, SA disagrees with the 
judgment of the TCA South, and has lodged an appeal with the Supreme 
Administrative Court, arguing, in essence, that the contested act is invalid and that 
the rules governing the award of the tender are also unlawful. 
7 The respondent, the Fundação do Desporto, and Link Consulting, SA, have filed a 
response, in which they argue that the appeal should be ruled inadmissible or, in 
the alternative, dismissed. 
The essential arguments of the parties in the main proceedings 
8 In essence, the main proceedings raise two issues concerning errors of assessment 
allegedly made by the courts of both instances: (i) whether it is lawful to exclude 
the appellant pursuant to Article 70(2)(a) of the CCP, through the application by 
analogy of the provisions of Article 168(4) of the CCP; and (ii) whether that part 
of the judgment under appeal which endorses the decision at first instance, in that 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-469/22 
 
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it considers that the factors and sub-factors relating to the technical assessment did 
not infringe Article 139 of the CCP, is also lawful. 
9 With regard to the legality of the decision to exclude the appellant, the latter was 
excluded from the tender procedure because the panel took the view that, although 
the appellant had declared that ‘it was not participating in the tender procedure 
jointly with other operators’, it stated in the document relating to the ‘terms and 
conditions of tender’ that ‘it was submitting the tender on behalf of itself, 
Ambisig, albeit in partnership with the undertaking LBC – Leadership Business 
Consulting, which would act as a subcontractor in providing all of the services in 
connection with “analysis, restructuring and process dematerialisation”’, and, as a 
result, the tender should be classed as a ‘tender submitted by a group’. Under 
Article 75(5) of the CCP, a tender submitted by a group must be signed by the 
joint representative of the members of the group or by all the group’s members or 
representatives; that was not done in this case, and the tender was therefore 
excluded. 
10 The panel also took the view that in the present case it was also possible, by 
analogy, to apply the provisions of Article 168(3) and (4) of the CCP, which 
likewise required all members of the group to sign [the tender documents]; 
alternatively, where third parties were relied on to perform only part of the 
contract, irrespective of the relationship between the tenderer and those third 
parties, it required a declaration containing an unconditional commitment by the 
third parties to perform the contractual services in question. 
11 The judgment of the TAF, Leiria stated that, since the requirement for 
commitments from third parties was not expressly established in the contract 
notice, and since it was a factor which concerned the performance of the contract 
subsequent to the award of the tender, it did not constitute grounds for excluding 
the appellant from the tender procedure. However, the statement by the appellant 
that it intended to subcontract part of the services fell within the scope of Clause 
12 of the tender specifications, which stipulated that subcontracting of this type 
was subject to authorisation by the contracting authority, and therefore the 
appellant’s failure to submit prior authorisation by the contracting authority was 
grounds for exclusion; this was also the case under the application by analogy of 
Article 168(4) of the CCP. 
12 In the judgment under appeal, the TCA South endorses the view that the appellant 
is excluded by virtue of Article 70(2)(a) of the CCP, basing its conclusion on the 
claim of breach of Article 168(4) of the CCP. It adds that Article 318(3)(a) of the 
CCP leads to the same outcome, since prior authorisation to subcontract was 
required (Clause 12(a) of the tender specifications) and, in order for the 
authorisation to be valid, advance submission of the qualification documents was 
required for both the contractor and the potential subcontractor. 
13 The appellant argues that the judgment under appeal is vitiated by an error of 
assessment, in particular because: (i) it requires a qualification document to be 
AMBISIG 
 
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submitted in respect of the third party, although there is no such requirement in 
the contract notice nor under the CCP, given that Article 168(4) of the CCP does 
not apply to the current procedure, according to the ruling in the judgment of the 
Supreme Administrative Court of 18 November 2021; (ii) Clause 12(a) of the 
tender specifications does not apply at the pre-contract stage; and (iii) Article 63 
of Directive 2014/24/EC does not stipulate that, when the tenderer submits its 
tender, it must include the commitment given by its subcontractors. 
14 In the appellant’s view, the TCA South applied Article 63 of the directive directly 
to the case before it, which is contrary to the rulings of the Court of Justice of the 
European Union in the judgments of 4 December 1974, Van Duyn (41/74, 
EU:C:1974:133), and of 5 April 1979, Ratti (148/78, EU:C:1979:110). The 
directive was incorporated in full into national law by means of the CCP, and in 
the judgment under appeal the court relied on the application of the directive. For 
that reason, the judgment under appeal is unquestionably contrary to the case-law 
of the Court of Justice, since Article 63 of the directive cannot be applied to the 
present proceedings (or any other proceedings) because of its direct effect. 
15 The appellant argues that the TCA South decided, by analogy, to apply 
Article 168(4) of the CCP, which is a perfectly clear rule which the legislature 
transposed in Portuguese law by reproducing the exact content of the provision in 
the directive (that is to say, the rule was to apply only to restricted procedures 
which require prequalification). The reasoning adopted by the TCA South that 
Article 63 of the directive, and consequently Article 168(4) of the CCP, apply to 
all types of procedures, is in breach of the principles of the separation of powers 
and legal certainty established, in particular, in Article 2 of the Constitution of the 
Portuguese Republic and in the Treaty of the European Union. Moreover, it 
prevents the application of the principle of conforming interpretation, which 
requires national courts to interpret national legislation that transposes a directive 
in the light of its wording and purpose, within the bounds of the general principles 
of law. 
16 Therefore, according to the appellant, Articles 63 and 58 of the directive and 
Article 168(4) of the CCP apply only to restricted procedures requiring 
prequalification, where economic operators must satisfy a series of technical 
capacity requirements established by the contracting authority in order to proceed 
to the tender submission stage. In other words, in view of the nature of the 
contract to be entered into, the contracting authority considers that the public 
interest underlying the procurement requirement can be properly satisfied only by 
economic operators which demonstrate that they meet certain requirements 
relating to factors such as experience, organisation, technical or human resources 
and so forth (see Article 165 of the CCP). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-469/22 
 
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Succinct presentation of the reasons for the request for a preliminary ruling  
17 In the view of the referring court, the first two arguments adduced by the appellant 
are well founded given that, as stated in the judgment of the Supreme 
Administrative Court of 18 November 2021, Article 77(2)(a) and (c) and 
Articles 81, 92 and 93 of the CCP and Article 2(2) of Order No 372/2017 would 
seem to indicate that ‘unless the tender documents provide otherwise or there is a 
request by the contracting authority, [the qualification document for the third 
party] only has to be submitted after the contract has been awarded, and not when 
the tender is submitted’. 
18 Indeed, Clause 12 of the tender specifications contains no indication to the 
contrary. It provides as follows: 
‘(Subcontracting) 
1. Subcontracting during the performance of the contract will be subject to 
authorisation by the contracting authority. 
2. Where subcontracting takes place, the supplier will remain fully liable to the 
contracting authority for complete and timely compliance with all contractual 
obligations, with no transfer of liability to any subcontractor.’ 
19 In essence, the issue depends on whether or not, in a situation where, as part of a 
tender procedure (which is not a restricted procedure requiring prequalification), a 
tenderer puts forward a third party (an ancillary undertaking) on whose technical 
capacities it intends to rely in order to provide part of the service, the tenderer is 
required to include with its tender the qualification documents for that (future) 
subcontractor and the commitment by the subcontractor to perform that part of the 
service. 
20 This important issue raises questions in the light of national law. On the one hand, 
as was noted in the judgment of this Supreme Administrative Court of 
18 November 2021, it is true that the contracting authority must not be able to 
impose requirements that are not provided for by law – that is, in the CCP – or in 
the contract notice. 
21 According to that judgment, this means that, unless the contract notice provides 
otherwise, the evidence of the subcontractor’s qualifications and its commitment 
to perform part of the contract may only be required after the tender has been 
awarded, as is clear from Article 2(2) of Order No 372/2017 and Article 77(2)(a) 
and (c) and Articles 81, 92 and 93 of the CCP. The requirement for these 
documents to be submitted with the submission of the tender would therefore 
seem to be restricted, in the light of national law – that is, the rules of the CCP – 
to cases involving a restricted procedure requiring prequalification, in accordance 
with Article 168(4) of the CCP. 
AMBISIG 
 
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22 However, Article 63 of Directive 2014/24/EU seems to impose a different rule, in 
so far as it considers that, irrespective of the type of procedure involved, where an 
economic operator intends to rely on the capacities of other entities, the operator 
must prove to the contracting authority that it will have at its disposal the 
resources necessary, for example, by producing a commitment by the entities in 
question (final part of the first paragraph of Article 63(1)). 
23 The judgment of the Court of Justice of 3 June 2021, Rad Service and Others 
(C-210/20, EU:C:2021:445), appears to point to the same conclusion; citing the 
principle of proportionality, it notes that the inclusion of the material concerning 
the subcontractors in the initial tender helps to ensure compliance with the 
principles of equal treatment and transparency, which are essential to the proper 
functioning of competition in assessing tenders, before going on to conclude that, 
if the subcontractor does not satisfy the legal requirements for being a party to a 
public procurement contract, it must be excluded. In that judgment, the Court of 
Justice also adds that it must be possible for the tenderer, at the request of the 
contracting authority, to replace the third party which is to assist in performing the 
contract, provided that the substitution does not alter the content of the tender 
which could subsequently be subject to ‘subcontracting’. 
24 In the view of the referring court, an interpretation of the rules of national law – 
that is, the rules of the CCP – under which, in tender procedures, a subcontractor’s 
qualification documents and its commitment to perform the part of the service 
indicated in the tender are required only once the tender has been awarded, may 
infringe Article 63 of Directive 2014/24/EU and breach the principles of equal 
treatment and transparency which flow from the application of the principle of 
competition in assessing tenders, as laid down by the European legislature in the 
area of public procurement. 
25 Accordingly, before proceeding, in view of the doubts over the correct 
interpretation of Article 77(2)(a) and (c), and Articles 81, 92, 93 and 168(4) of the 
CCP, it has been decided to stay the proceedings and to refer the question set out 
above to the Court of Justice for a preliminary ruling. 
26 In view of the urgency of the proceedings – Article 36(1)(c) of the Código de 
Processo nos Tribunais Administrativos (Administrative Procedure Code) and 
Article 2 of Directive 2007/66/EC of the European Parliament and of the Council 
of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC 
with regard to improving the effectiveness of review procedures concerning the 
award of public contracts – the court requests that the case be dealt with under the 
expedited procedure established in Article 105(1) of the Rules of Procedure of the 
Court of Justice.