Opinion of the Advocate General — ECLI:EU:C:2015:558
Date: 2015-09-08
Language of the case: Polish
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary — Judgment of the Court (First Chamber), 7 April 2016 1. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Award of contracts — Qualitative selection criteria — Technical and professional ability — Possibility to rely on the capacities of other entities — Limits — Right of the contracting authority to require that tenderers have the minimum capacity level — Conditions (European Parliament and Council Directive 2004/18, Arts 44(2), 47(2) and 48(3)) 2. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Award of contracts — Qualitative selection criteria — Technical and professional ability — Possibility to rely on the capacities of other entities — Establishment, in the tender notice or the tender specifications, of specific rules governing when those capacities may be relied on — Lawfulness — Conditions (European Parliament and Council Directive 2004/18, Art. 48(2) and (3)) 3. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Award of contracts — Principles of equal treatment of tenderers and transparency — Scope — Acceptance by the contracting authority, after the opening of the bids, of a tenderer’s request to substantially amend its tender — Not permissible (European Parliament and Council Directive 2004/18, Art. 2) 4. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Award of contracts — Principles of equal treatment of tenderers and transparency — Scope — Tenderer not invited to participate in an electronic auction for the award of a public contract despite the fact that its tender was admissible — Not permissible — Obligation for the contracting authority to annul and repeat the action (European Parliament and Council Directive 2004/18, Arts 2 and 54(4)) 5. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2014/24 — Temporal application — Decision of the contracting authority choosing the type of procedure to be followed for an award made before the period for transposing that directive — Inapplicability of the directive — Interpretation of the provisions of Directive 2004/18 in the light of those of Directive 2014/24 — Conditions (European Parliament and Council Directives 2004/18, Art 48(3) and 2014/24, Recital 2, Art. 63(1)) 1. 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 together with Article 44(2) thereof, must be interpreted as recognising 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. However, the provisions of Directive 2004/18 do not prevent the exercise of the right they contain from being limited in exceptional circumstances. It is conceivable that there may be works with special requirements necessitating a certain capacity which cannot be obtained by combining the capacities of more than one operator, which, individually, would be inadequate. In such circumstances, the contracting authority would be justified in requiring that the minimum capacity level concerned be achieved by a single economic operator or, where appropriate, by relying on a limited number of economic operators, in accordance with the second subparagraph of Article 44(2) of Directive 2004/18, as that requirement is related and proportionate to the subject matter of the contract at issue. Likewise, it is conceivable that, in specific circumstances, having regard to the nature and objectives of a particular contract, the capacities of a third party entity, which are necessary for the performance of a particular contract, cannot be transferred to the tenderer. Accordingly, in such circumstances, the tenderer may rely on those capacities only if the third party entity directly and personally participates in the performance of the contract concerned. (see paras 39-41, 49, operative part 1) 2. Article 48(2) and (3) of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts 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. Although it is true that a tenderer is free to choose the legal nature of the links it intends to establish with the other entities on whose capacities it relies in order to perform a particular contract and the type of proof of the existence of those links, the exercise of the right to rely on the capacities of other entities may, having regard to the subject matter of the contract concerned and its objectives, be limited in specific circumstances. In that connection, if the contracting authority decides to make use of such a possibility, it must ensure that the rules it adopts are related and proportionate to the subject matter and objectives of that contract. (see paras 52, 54, 56, 58, operative part 2) 3. The principles of equal treatment and non-discrimination of economic operators, laid down in Article 2 of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, must be interpreted as precluding 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 consider its tender solely for the award of certain lots of that contract. The principles of equal treatment and non-discrimination and the obligation of transparency preclude any negotiation between the contracting authority and a tenderer during a public procurement procedure, which means that, as a general rule, a tender cannot be amended after it has been submitted, whether at the request of the contracting authority or at the request of the tenderer concerned. In that connection, although Article 2 of Directive 2004/18 does not preclude the correction or amplification of details of a tender, on a limited and specific basis, particularly when it is clear that they require mere clarification, or to correct obvious material errors, the contracting authority must ensure, in particular, that the request for clarification does not lead to the submission, by a tenderer, of what would appear in reality to be a new tender. That is the case with respect to a communication, by which an economic operator indicates to the contracting authority, after the opening of the tenders, the order of priority of the lots of the contract concerned according to which its tender should be assessed. (see paras 62-64, 68, 70, operative part 3) 4. The principles of equal treatment and non-discrimination of economic operators laid down in Article 2 of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as requiring 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. When a tenderer submits an admissible tender and thereby satisfies the criteria set out in the tender notice, the contracting authority must, in accordance with Article 54(4) of Directive 2004/18, ensure the tenderer is able to exercise its right to take part where appropriate, in the electronic auction. Therefore, when a tenderer is not invited to take part in that auction, the principles of equal treatment and non-discrimination require the contracting authority to annul and repeat the electronic auction. Such a conclusion applies independently of whether its participation would have altered the outcome of the auction or not, since the exercise of the tenderer’s right to take part in an electronic auction cannot be subject in any way to the result proposed by it and cannot be excluded from the outset by reason of hypothetical considerations expressed by the contracting authority. (see paras 76-79, 81, operative part 4) 5. With respect to public procurement, the applicable directive is, as a rule, the one in force when the contracting authority chooses the type of procedure to be followed and decides definitively whether it is necessary for a prior call for competition to be issued for the award of a public contract. Conversely, a directive is not applicable if the period prescribed for its transposition expired after that point in time. In that connection, as regards a procedure for the award of public contract before the adoption of Directive 2014/24, Article 48(3) of Directive 2014/24 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts cannot be interpreted in the light of Article 63(1) of Directive 2014/24. Although it is true, as stated, inter alia, by recital 2 of Directive 2014/24, Directive 2014/24 aims to clarify basic notions and concepts to ensure legal certainty and to incorporate certain aspects of related well-established case-law of the Court of Justice, the fact remains that Article 63 of that directive introduces substantial amendments as regards the right of an economic operator to rely on the capacities of other entities in the context of public contracts. Far from preserving the continuity of Article 48(3) of Directive 2004/18, and clarifying its scope, Article 63(1) of Directive 2014/24 introduces new conditions which were not provided for under the previous legislation. Far from preserving the continuity of Article 48(3) of Directive 2004/18, and clarifying its scope, Article 63(1) of Directive 2014/24 introduces new conditions which were not provided for under the previous legislation. In those circumstances, that provision of Directive 2014/24 cannot be used as a criterion for the interpretation of Article 48(3) of Directive 2004/18 since there is no question of dispelling a problem of interpretation concerning the content of the latter provision. (see paras 83, 90-92, 94, operative part 5)