Judgment;Summary — ECLI:EU:C:2026:38
Date: 2026-01-22
Language of the case: Portuguese
Court formation: Seventh Chamber
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary C-812/24 – 1 
Case C-812/24 
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: 
26 November 2024 
Referring court: 
Supremo Tribunal Administrativo (Portugal) 
Date of the decision to refer: 
12 September 2024 
Appellants: 
LIPOR – Associação de Municípios para a Gestão Sustentável de 
Resíduos do Grande Porto 
PREZERO Portugal, S. A. 
Respondent: 
Semural Waste & Energy, S. A. 
  
Subject matter of the main proceedings 
Interpretation 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). In particular, the referring 
court wishes to clarify whether, in accordance with and for the purposes of 
Article 63, the fact that the activity to which the procurement procedure relates is 
carried out by an undertaking which is wholly owned by the tenderer that has 
submitted the most advantageous tender should be regarded as ‘reliance on the 
capacities of other entities’ and whether, as such, it was necessary to provide the 
‘commitment’ of that undertaking, or whether it is an activity that is not covered 
by that expression, because it is not a case of ‘subcontracting’ the activity in 
question. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-812/24 
 
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Subject matter and legal basis of the request 
Request for a preliminary ruling pursuant to point (b) of the first paragraph of 
Article 267 TFEU, seeking the interpretation of Article 63 of Directive 2014/24. 
Question referred for a preliminary ruling 
(1) Must Article 63(1) of Directive [2014/24/EU] be interpreted as meaning that 
a situation in which an economic operator wishes to make use, in the performance 
of a contract, of the facilities of an undertaking (separate legal person) whose the 
share capital is wholly owned by that economic operator and one of whose 
directors is also a director of that economic operator constitutes ‘reliance on the 
capacities of other entities’? 
(2) If the regulatory requirements for reliance on the capacities of other entities 
are regarded as satisfied, must the fact that the economic operator has not 
submitted, along with the tender, the [European Single Procurement Document 
(ESPD)] for the wholly owned undertaking be sanctioned with exclusion from the 
procurement procedure? 
Provisions of European Union law and case-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 (OJ 
2014 L 94, p. 65), in particular: recital 84 and Articles 59 and 63(1). 
Judgment of 14 January 2016, Ostas celtnieks (C-234/14, EU:C:2016:6). 
Judgment of 7 April 2016, Partner Apelski Dariusz (C-324/14, EU:C:2016:214). 
Judgment of 10 November 2022, Taxi Horn Tours (C-631/21, EU:C:2022:869). 
Order of 10 January 2023, Ambisig (C-469/22, EU:C:2023:25). 
Provisions of national law relied on 
Decreto-Lei n.º 18/2008, de 29 de janeiro, que aprova o Código dos Contratos 
Públicos que estabelece a disciplina aplicável à contratação pública e o regime 
substantivo dos contratos públicos que revistam a natureza de contrato 
administrativo (Decree-law No 18/2008 of 29 January 2008 approving the Public 
Contracts Code laying down the rules applicable to public procurement and the 
substantive rules governing public contracts of an administrative nature; ‘the 
CCP’), as amended by Decree-law No 78/2022 of 7 November 2022 (DR 
No 20/2008, Series I of 29 January 2008), in particular: Article 51, Article 57(1) 
and (6), Article 70(2)(a), Article146(2)(d) and Article 168(4). 
LIPOR AND PREZERO PORTUGAL 
 
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Succinct presentation of the facts and procedure in the main proceedings 
1 By a resolution of 29 May 2023, the board of directors of LIPOR – Associação de 
Municípios para a Gestão Sustentável de Resíduos do Grande Porto (‘LIPOR’) 
launched a public tender procedure, advertised internationally, to award a contract 
for the ‘provision of transport services and dumping of slag produced at the 
energy recovery facility’, and the documents for the procedure, including the 
invitation to tender and the specification, were approved. 
2 Semural Waste & Energy, S. A. (‘Semural’ or ‘the respondent’) and PreZero 
Portugal, S. A. (‘PreZero’ or ‘the other party to the proceedings’) took part in the 
tender procedure, in which the tender submitted by PreZero was considered to be 
the most economically advantageous tender. 
3 On 31 July 2023, the board of directors of LIPOR decided to award the contract to 
PreZero. 
4 Semural disagreed with that award decision and brought a pre-contractual 
administrative action before the Tribunal Administrativo e Fiscal do Porto 
(Administrative and Tax Court, Porto, Portugal), seeking: (i) the setting aside of 
the decision to award the contract for the ‘provision of transport services and 
dumping of slag produced at the energy recovery facility’ to PreZero; (ii) the 
exclusion of the tender submitted by PreZero; (iii) the award of the contract to 
Semural or, in the alternative, a declaration of unlawfulness in respect of the rules 
for assessing the award criteria. 
5 By a decision of 9 November 2023, the Porto Administrative and Tax Court 
upheld the claim and, consequently, the decision of the LIPOR board of directors 
of 31 July 2023, awarding the contract to PreZero, was set aside; LIPOR was 
ordered to exclude PreZero’s tender from the procedure and to award the contract 
to Semural. 
6 LIPOR and PreZero (‘the appellants’) challenged that decision before the Tribunal 
Central Administrativo Norte (Northern Central Administrative Court, Portugal), 
which, by a judgment of 16 February 2024, dismissed both appeals, upholding the 
judgment under appeal. 
7 LIPOR and PreZero disagreed with the judgment of the Northern Central 
Administrative Court and brought the present appeal before the Supremo Tribunal 
Administrativo (Supreme Administrative Court), the referring court, claiming that 
a manifest error had been made in the interpretation and application of the law. 
8 In accordance with Article 1 of the approved invitation to tender, the subject 
matter of the tender procedure was the transport and dumping of 75 000 (seventy-
five thousand) tonnes of slag from the energy recovery facility, at a dumping site 
used for non-hazardous waste. Article 9, titled ‘Tender documents’, stated that 
tenders were to include, inter alia, the following documents: the European Single 
Procurement Document, a statement indicating the price and, ‘in the case of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-812/24 
 
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subcontracting, a statement by the tenderer indicating the services to be 
subcontracted out, together with a declaration by the subcontractors committing, 
unconditionally, to carry out the work for which they have been designated’. 
9 In its tender, PreZero proposed to carry out all of the work to which the tender 
procedure related by reusing a dumping site of the undertaking Valor RIB – 
Indústria de Resíduos, Unipessoal, Lda. (‘Valor RIB’), which was duly authorised 
for that purpose. However, although the treatment, recovery and dumping of the 
waste were to be carried on at that dumping site, the party concerned [PreZero] 
did not enclose with its tender any statement relating to subcontracting or, more 
importantly, any commitment from that possible subcontractor. 
10 Valor RIB is an undertaking that is wholly owned by PreZero (sole shareholder in 
the undertaking) and one of its directors is also director of PreZero. That is 
apparent from the digital company registration certificate for Valor RIB submitted 
by PreZero. 
11 PreZero did not enclose with its tender a commitment signed by Valor RIB, in 
accordance with and for the purposes of Article 9(1)(l) of the invitation to tender. 
12 Both the Porto Administrative and Tax Court and the Northern Central 
Administrative Court held that Valor RIB was a subcontractor of PreZero and, 
therefore, that PreZero should have provided the commitment required of 
subcontractors by Article 9(1)(l) of the invitation to tender, by Article 168(4) of 
the CCP and by Article 63(1) of Directive 2014/24. The absence of that 
commitment constitutes grounds for the exclusion of its tender, pursuant to 
Article 146(2)(d) of the CCP. 
13 For their part, the appellants maintain that the legal relationship of ‘control’ 
existing between PreZero and Valor RIB means that the existence of a subcontract 
between them can be ruled out. They submit that Valor RIB is not a subcontractor 
of the other party to the proceedings and, therefore, the provision of a 
commitment cannot be required, nor is there a valid legal basis for its exclusion 
from the tender procedure. 
The essential arguments of the parties in the main proceedings 
14 The appellants maintain that an undertaking wholly owned by the tenderer cannot 
be regarded as a subcontracted entity and, therefore, the legal requirements 
established for situations in which subcontracting does indeed exist do not apply 
to it. 
15 Moreover, they consider it necessary to understand whether, in light of EU law – 
in particular the directives on public procurement – and in the context of a public 
tender procedure advertised internationally, the obligation to enclose the third-
party commitment when submitting tenders subsists or whether that requirement is 
LIPOR AND PREZERO PORTUGAL 
 
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reserved for situations which imply a public procurement procedure restricted by 
prior selection. 
16 Even if the conclusion is reached that such a requirement exists in procedures 
without prior selection, the appellants maintain that it is still absolutely crucial to 
know whether the failure to satisfy that requirement does or does not constitute 
grounds for excluding a tender that omits [that commitment]. 
17 For the appellants, the Northern Central Administrative Court (and, before it, the 
Porto Administrative and Tax Court) incorrectly held that Valor RIB was an 
undertaking subcontracted by the other party to the proceedings. They submit that 
it incorrectly applied the legal rules underlying the concept of subcontracting, 
based on the understanding that the classification of an undertaking as a 
subcontracted entity depends solely on the scope and extent of its involvement in 
the provision of the services by the tenderer. 
18 Based on that mistaken premiss, the Northern Central Administrative Court held 
that PreZero should have enclosed the commitment by Valor RIB with its tender, 
in accordance with Article 9(1)(l) of the invitation to tender and Article 57(1) of 
the CCP. Consequently, since that did not happen, there were grounds for 
excluding the tender submitted by PreZero, pursuant to Articles 70(2)(a) and 
146(2)(d) of the CCP. 
19 The appellants observe that, to support its decision, the Northern Central 
Administrative Court formulated three questions, to which it responded entirely 
incorrectly. Those questions concerned: (i) whether Valor RIB could actually be 
classified as a subcontracted entity, which it answered in the affirmative; (ii) 
whether, pursuant to Article 9(1)(l) of the invitation to tender, the party concerned 
was actually obliged to enclose the commitment signed by Valor RIB with its 
tender, which the court confirmed; and (iii) whether the failure to provide such a 
commitment was actually grounds for exclusion, in relation to which the court 
held that, given that such an obligation existed and had not been complied with, 
the tender of the other party to the proceedings should have been excluded, 
pursuant to Articles 70(2)(a) and 146(2)(d) of the CCP. 
20 With regard to the first question posed, the Northern Central Administrative Court 
argued that, in order to assess whether an undertaking has been subcontracted or 
not, it is only necessary to analyse the aim and purpose of the activity that it 
carries out in the context of the performance of a public contract. 
21 In that regard, the appellants submit that the court did not take into account the 
legal nature of subcontracting, in so far as it is assumed to constitute a bilateral 
legal transaction. They go on to emphasise that it is clear that, in the case of 
subcontracts, in addition to observing a possible material requirement (purpose of 
the subcontractor’s activity), it is essential to establish the true legal-contractual 
link. 
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22 There is no contract between PreZero and Valor RIB for the transport and 
dumping of slag, which is sufficient reason for Valor RIB not to be regarded as an 
undertaking subcontracted by PreZero. 
23 The only link that may be attributed to the two undertakings lies in the fact that 
PreZero is the sole shareholder in Valor RIB, which, by giving the former total 
control of the latter, explains precisely why no kind of subcontract for the 
performance of the public contract in question was entered into (and why it was 
not even necessary to enter into such a contract), and, therefore, Valor RIB cannot 
be regarded as a ‘subcontracted entity’. 
24 With regard to the second question, concerning whether the other party to the 
proceedings was actually obliged to enclose the commitment signed by Valor RIB 
with its tender, the appellants argue that the Northern Central Administrative 
Court started from a mistaken premiss: the classification of Valor RIB as a 
subcontracted entity, when, in reality, it does not satisfy the legal requirements for 
that. 
25 Contrary to what is held in the decision at issue, the (purported) obligation to 
enclose the commitment provided for in Article 9(1)(l) of the invitation to tender, 
signed by Valor RIB, with the tender of the other party to the proceedings, should 
be examined taking account of the fact that the procedure in question is a public 
procurement procedure that was advertised internationally. 
26 In order to examine that question, the appellants submit that Directive 2014/24 
should be taken into account and, in particular, recital 84 of that directive, which 
expressly refers to two-stage procedures and makes reference to concepts only 
applicable to procedures with prior selection. That recital thus provides, expressly, 
that the commitment only has to be enclosed with the tender in procedures with 
prior selection. 
27 Moreover, at the national level, Portuguese case-law explains that, in the case of 
procedures with prior selection, the third-party commitment is especially 
important, as it is the document that proves that the candidate is qualified. 
28 However, according to the appellants, contrary to what is argued by the Northern 
Central Administrative Court, the party concerned did not have any obligation to 
enclose the commitment by Valor RIB with its tender, since, in the type of 
procedure in question (public tender procedure advertised internationally), 
Articles 59 and 63 of Directive 2014/24, interpreted in accordance with the true 
sense and scope of recital 84, were not applicable. 
29 That is due to the fact that, in other procedures, as occurs in the present case, the 
third-party commitment only has to be provided at a stage subsequent to the award 
of the contract, specifically at the stage of confirming commitments, referred to in 
Article 77(2)(c) of the CCP. 
LIPOR AND PREZERO PORTUGAL 
 
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30 The appellants also observe that, even if the matter in fact concerned a 
subcontracted entity, the very nature of the declaration required by Article 9(1)(l) 
of the invitation to tender would mean that it could not be required at the outset, at 
the stage of submitting tenders, given that, in the context of a public tender 
procedure without prior selection, the submission of a declaration describing 
exactly the services to be provided by the third party cannot be required at the 
stage of submitting tenders and may only be required after the contract has been 
awarded. 
31 So, given the legal inconsistency between the documentary requirement provided 
for in point (l) and the true legal nature of the commitments, which concern an 
aspect related to suitability as a contractor and not the award of the contract, the 
appellants observe that, in view of the rules laid down in Article 51 of the CCP, it 
is necessary to determine which legal rules take precedence. 
32 Analysing those rules, the appellants maintain that it is clear that the documentary 
requirement provided for in Article 9(1)(l) of the invitation to tender is not 
applicable to third parties, in accordance with the CCP, and, therefore, it must be 
concluded that third parties are only required to provide the commitment at the 
stage of confirming third-party commitments. 
33 Accordingly, the omission of such a commitment could never lead to the 
exclusion of the tender and the decision made in that regard must therefore be 
revoked. 
34 With regard to the third question posed, in case [the second question] is not 
answered as just set out, it is necessary to examine whether the omission of the 
commitment is capable of giving rise to the exclusion of the tender, pursuant to 
Articles 70(2)(a) and 146(2)(d) of the CCP. 
35 Given the content of those provisions, it is necessary to assess whether the 
commitment at issue contained, in itself, any characteristic of, or any requirement 
or condition for, the tender [required by Article 57(1)(b) and (c) of the CCP], 
since only in that case could the failure to provide it give rise to the exclusion of 
the tender pursuant to Article 70(2)(a) of the CCP. 
36 The appellants observe that, contrary to what the Northern Central Administrative 
Court appears to conclude, Article 57(1)(b) and (c) does not require the 
commitment, since that commitment does not relate either to a characteristic of 
the tender or to a requirement or condition for it. 
37 In reality, for the purposes of assessing the tender of the party concerned in 
relation to ‘factor F3 – Organisation and human and material resources to be 
allocated to the performance of the contract’, the relevant document when it 
comes to third parties is not the commitment at issue in the present case, but rather 
the statement of the tenderer itself indicating the services to be provided by a third 
party. 
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38 It cannot, therefore, in any way be concluded that the failure to provide that 
commitment may constitute the omission of a characteristic sufficient to justify 
the exclusion of the tender. 
39 Nor, the appellants also observe, can the failure to provide the commitment 
amount to the failure to satisfy a requirement or condition, since the tender of the 
other party to the proceedings states the terms of the services to be provided by 
Valor RIB, specifically, in the document submitted to comply with the 
requirements of Article 9(1)(f) of the invitation to tender. The tender submitted by 
the other party to the proceedings could, therefore, never be excluded pursuant to 
Article 70(2)(a) of the CCP, in so far as it did not, in any way, omit any 
characteristic of, or requirement or condition for, the tender. Even if it were 
accepted, albeit as a mere academic hypothesis, that the other party to the 
proceedings was required to enclose the commitment by Valor RIB with its 
tender, such an omission could, in light of Article 146(2)(d) of the CCP, never 
lead to the exclusion of that tender. 
40 In light of the existing case-law and national legal scholarship, only if the 
commitment constituted a characteristic [within the meaning of Article 57(1)(a) of 
the CCP] or a requirement or condition [within the meaning of Article 57(1)(b) of 
the CCP] could the failure to provide it give rise to the exclusion of that tender 
pursuant to Article 146 of the CCP. 
41 The commitment at issue relates only to the performance of the services; that is, 
the subcontractor only declares that it will perform the services which the tenderer 
indicates in its tender. The commitment provided for in Article 168(4) of the CCP 
and in Article 63(1) of Directive 2014/24 relates to the minimum requirements 
with regard to the technical ability of the third party on which the tenderer is 
relying, in procurement procedures restricted by prior selection. It should be noted 
that Article 168 of the CCP appears in Chapter III, on procurement procedures 
restricted by prior selection, and not in the chapter on public procurement 
procedures (which the present case concerns). Article 63(1) of Directive 2014/24 
is worded as follows: ‘With regard to criteria relating to economic and financial 
standing as set out pursuant to Article 58(3), and to criteria relating to technical 
and professional ability as set out pursuant to Article 58(4), an economic operator 
may, where appropriate and for a particular contract, rely on the capacities of 
other entities, regardless of the legal nature of the links which it has with them. 
With regard to criteria relating to the educational and professional qualifications 
as set out in point (f) of Annex XII Part II, or to the relevant professional 
experience, economic operators may however only rely on the capacities of other 
entities where the latter will perform the works or services for which these 
capacities are required. Where an economic operator wants to rely on the 
capacities of other entities, it shall prove to the contracting authority that it will 
have at its disposal the resources necessary, for example, by producing a 
commitment by those entities to that effect.’ 
LIPOR AND PREZERO PORTUGAL 
 
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42 Article 168(4) of the CCP and Article 63(1) of Directive 2014/24 also have the 
virtue of highlighting, on the one hand, the question of the ‘nature of the link’ that 
connects the tenderer to the third party on which it is relying to perform part of the 
services tendered for and, on the other, the question of ‘proof of the existence of 
the link’. 
43 In that context, the Northern Central Administrative Court held that the economic 
operator Valor RIB could only ever be regarded as a ‘subcontracted entity’, since 
its involvement went far beyond the mere dumping of slag and also included the 
treatment and recovery of the slag produced at the energy recovery facility, so that 
it could potentially be reused in the future. 
44 The appellants dispute that conclusion. In their view, the fact that PreZero is 
relying on Valor RIB to carry out tasks relating to the treatment and recovery of 
slag does not imply that the nature of the link between them inexorably translates 
into a subcontract, since, according to the case-law of the Court of Justice of the 
European Union, as Pedro Costa Gonçalves explains in Direito dos Contratos 
Públicos, 5th edition, pp. 754-755, ‘[the relationship in question] could be a 
collaboration agreement of another kind, such as a plant and equipment lease 
agreement or a secondment agreement. There may not even be a contract of any 
kind between the candidate and the third party.’ 
45 For its part, the respondent maintains its position that Valor RIB must be regarded 
as a subcontractor of PreZero and submits that the appeal lodged must be 
considered inadmissible, or, failing that, dismissed, and the decision at issue 
upheld. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
46 In the opinion of the referring court, the only question which has to be clarified is 
whether the fact that the activity of dumping slag (which forms the subject matter 
of the contract, the tender procedure for which is at the core of the present dispute) 
is carried out by the undertaking Valor RIB, whose share capital is wholly owned 
by the tenderer, is or is not to be regarded as ‘reliance on the capacities of other 
entities’, in accordance with and for the purposes of Article 63 of Directive 
2014/24, and, therefore, whether there was an obligation to provide the 
‘commitment’ of Valor RIB alongside the tender (as was held at the earlier 
instances), or whether the legal-commercial relationship in question in the present 
case exempts [the tenderer] from compliance with that formality, since the 
conclusion reached in that regard will determine the outcome of the appeals 
brought and also the merits of the pre-contractual administrative action. 
47 It is important to know whether the legal relationship that would be established 
between the tenderer PreZero and the undertaking Valor RIB, which is wholly 
owned by the former, in the context of carrying out the work of dumping slag, is 
to be regarded as falling within the meaning of ‘reliance on the capacities of other 
entities’, as the judgment under appeal concludes, confirming the view of the 
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Porto Administrative and Tax Court, or whether, as the appellants maintain, it is 
an activity which cannot be regarded as such, because it is not a case of 
‘subcontracting’ that activity. 
48 Moreover, it is necessary to determine whether the legal relationship of ‘control’ 
existing between the above-mentioned undertakings is a ground for ruling out its 
classification as reliance on the capacities of other entities and, thus, exempts 
PreZero from the obligation to include information relating to Valor RIB in the 
Single Procurement Document, or whether, in itself, it allows that omission to be 
regarded as a formal irregularity which does not invalidate the tender and, 
consequently, does not provide a basis for exclusion from the tender procedure, in 
accordance with and for the purposes of Article 70(2)(a) of the CCP, interpreted in 
accordance with the provisions of EU law. 
49 Having analysed the relevant case-law of the Court of Justice, it appears that it is 
not sufficient to clarify fully the interpretation which the referring court should 
apply in its decision. 
50 Indeed, by its order of 10 January 2023, Ambisig (C-469/22, EU:C:2023:25), also 
following a request for a preliminary ruling from the Supreme Administrative 
Court, the Court clarified various requirements for adjudicating correctly on 
disputes arising under national law and requiring the application of the provisions 
of the CCP in accordance with EU law. 
51 It has thus been specified that the obligation on the part of an economic operator 
that is relying on the capacities of another entity for the performance of a public a 
contract to submit, to the contracting authority, the documents relating to the 
suitability of that entity and the commitment of that entity, before the award 
decision is made, applies to all tender procedures, including public tender 
procedures, and not only to procurement procedures restricted by prior selection, 
in respect of which that obligation is expressly provided for in Article 168(4) of 
the CCP. To that extent, therefore, it is not, as the appellants claim, possible to 
dismiss that regulatory obligation on the basis of the form of the procedure prior 
to the award (public tender procedure) in the present case, given that the Court of 
Justice has already clarified that Article 70(2)(a) of the CCP, interpreted in 
accordance with EU law, imposes such a solution (the consequent invalidation), 
even though the procedure in question is not a procedure restricted by prior 
selection. It may also be said, as some legal scholarship proposes, that, in such 
cases, the rules laid down Article 168(4) of the CCP should apply by analogy. 
52 However, the case-law of the Court of Justice is not as clear in relation to the first 
question referred, that is, regarding whether situations in which that ‘other entity’, 
even if it has distinct legal personality from the economic operator submitting the 
tender, is wholly owned and controlled by that operator should or should not be 
included in the scope of Article 63 of Directive 2014/24. The appellants maintain 
that reliance on the capacities of other entities must be based on a legal 
relationship of subcontracting, which is not what occurs in the present case 
LIPOR AND PREZERO PORTUGAL 
 
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(although they have not specified in what capacity or on what legal basis Valor 
RIB would provide its services, given that there would, necessarily, be a part of 
the performance of the contract for the activity put out to tender which would, in 
any event, have be to carried out by Valor RIB, since it is the only entity that 
would have the facilities – the dumping site – and the administrative 
authorisations – the permit for the dumping site – which cannot be transferred to 
PreZero). 
53 The Porto Administrative and Tax Court and the Northern Central Administrative 
Court based their decisions on the case-law of the Court of Justice contained in its 
judgment of 10 November 2022, Taxi Horn Tours (C-631/21, EU:C:2022:869), 
which, regarding a case relating to legal relationships between undertakings under 
Netherlands law, states: ‘If … for the performance of a public contract, that joint 
undertaking considers that it must seek the own resources of certain partners, it 
must be regarded as having recourse to the capacities of other entities, within the 
meaning of Article 63 of Directive 2014/24, and must then submit not only an 
ESPD for itself, but also an ESPD for each of the partners whose capacities it 
intends to use.’ 
54 However, it is not certain that the similarities between the legal systems (Dutch 
and Portuguese) allow that judgment to be interpreted as meaning that Article 63 
of Directive 2014/24 is to apply to the facts of the present case, that is, as meaning 
that, where an economic operator wishes to use, in the performance of the 
contract, the facilities or services of another undertaking, the share capital of 
which is wholly owned by that economic operator (being the sole shareholder in 
the undertaking) and one of the directors of which is also a director of the 
economic operator, it will have to submit not only an ESPD for itself, but also an 
ESPD for the undertaking wholly owned by it, and that, should it not submit an 
ESPD for that undertaking, such an omission would constitute a legal basis for the 
exclusion of its tender. 
55 As there are doubts regarding the correct interpretation of Article 63 of Directive 
2014/24 and of Article 70(2)(a) of the CCP, in accordance with EU law, the 
Supreme Administrative Court decided to stay the proceedings and to refer the 
two questions stated above to the Court of Justice for a preliminary ruling.