Opinion of the Advocate General — ECLI:EU:C:2010:198
Date: 2010-04-15
Language of the case: French
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Belgium

summary examination may not be carried out because the authorities of the host Member State are not entitled to assess detailed matters concerning competence or the procedure for issuing such certificates in the contractor’s country of origin. 85. Naturally, this does not effect the power of the authorities of the host Member State to examine whether the relevant contractor has met in their country – the Member State in which the service is to be provided – his obligations relating to the payment of taxes and social security contributions, and to predict whether he can also meet these obligations in relation to forthcoming public contracts. 86. To summarise: The second indent of the second paragraph of Article 24 of Directive 93/37 does not prohibit foreign contractors from being required, as a condition for their participation in an award procedure, to submit certificates concerning the due payment of taxes and social security contributions issued by the authorities of their country of origin to an authority other than the contracting authority for examination, provided that that authority – offers, in terms of its composition and working method, a sufficient guarantee of compliance with the requirements of European Union law, and – restricts itself, in a summary examination, to ensuring that the relevant certificate is in date, that it is genuine, and that it was not issued by an authority which is clearly not competent to do so. In so far as national law allows this authority to require from the contractor information and documents which are not provided for in Directive 93/37, no use may be made of such a power as against a contractor from another Member State. VI – Conclusion 87. On the basis of the above considerations, I propose that the Court should answer the questions referred by the Belgian Cour de cassation as follows: (1) The freedom to provide services and Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts do not preclude a requirement, laid down in national law or tender conditions, relating to the registration for tax purposes of contractors from other Member States as a condition for their participation in a procedure for the award of public contracts, provided that the registration procedure – does not complicate or delay the participation of those contractors in an award procedure and does not impose additional administrative costs on them, and – is limited, in terms of its subject-matter, to establishing and certifying the professional quality and reliability of those contractors for the purpose of the first paragraph of Article 24 of Directive 93/37. (2) The second indent of the second paragraph of Article 24 of Directive 93/37 does not prohibit foreign contractors from being required, as a condition for their participation in an award procedure, to submit certificates concerning the due payment of taxes and social security contributions issued by the authorities of their country of origin to an authority other than the contracting authority for examination, provided that that authority – offers, in terms of its composition and working method, a sufficient guarantee of compliance with the requirements of European Union law, and – restricts itself, in a summary examination, to ensuring that the relevant certificate is in date, that it is genuine, and that it was not issued by an authority which is clearly not competent to do so. In so far as national law allows this authority to require from the contractor information and documents which are not provided for in Directive 93/37, no use may be made of such a power as against a contractor from another Member State. 1 – Original language: German. 2 – Case C‑346/06 [2008] ECR I‑1989; that case related to whether contractors party to procedures for the award of public works contracts can be required to pay the wage provided for in the collective agreement in force at the place where the building services are performed. 3 – The name ‘Berlaymont’ has its origins in an Augustinian convent. An approximately two-hectare park, together with the convent of the ‘Ladies of Berlaymont’ (Dames du Berlaymont), previously occupied the site of the present Commission building. 4 – OJ 1993 L 199, p. 54, hereinafter: ‘Directive 93/37’. 5 – Directive 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 (OJ 2004 L 134, p. 114, and corrigenda OJ 2004 L 351, p. 44). 6 – Treaty establishing the European Community, as amended by the Maastricht Treaty. 7 – The provisions on freedom to provide services are now contained in Articles 56 and 57 TFEU, the wording of which is almost identical. 8 – Published in Moniteur belge of 26 July 1977, p. 9539 (‘Royal Decree of 1977’). The relevant provisions were in force until 23 February 1997. 9 – Published in Moniteur belge of 7 October 1978, p. 11707 (‘Royal Decree of 1978’). The decree was in force in the version relevant to this case until 1 August 1996. 10 – Commission d’enregistrement. 11 – At that time: Commission of the European Communities. 12 – Hereinafter: ‘Berlaymont 2000’. 13 – Building management. 14 – Hereinafter also: ‘Berlaymont invitation to tender’. 15 – That is equivalent to approximately EUR 34.7 million. 16 – OJ 1994 S 247, p. 107. 17 – OJ 1995 S 32, p. 13. 18 – WIG was registered on 24 July 1995 and BPC-WIG on 28 July 1995. 19 – Finanzamt Köln-Mitte. 20 – ‘Clearance certificate’ issued by AOK-Bundesverband. 21 – Conseil d’État. 22 – Judgment No 79.191 of the Fourth Chamber of the Belgian Council of State. 23 – Brussels Court of First Instance, file reference 1996/7808/A. 24 – Brussels Court of Appeal. 25 – Judgment No 2007/2058. 26 – Cour de cassation. 27 – Belgium’s observations were limited to the second question. 28 – Joined Cases C‑320/90 to C‑322/90 Telemarsicabruzzo and Others [1993] ECR I‑393, paragraph 6; Case C‑134/03 Viacom Outdoor [2005] ECR I‑1167, paragraph 22; Joined Cases C‑453/03, C‑11/04, C‑12/04 and C‑194/04 ABNA and Others [2005] ECR I‑10423, paragraph 45; and Case C‑42/07 Liga Portuguesa de Futebol Profissional and Bwin International (‘Liga Portuguesa’) [2009] ECR I‑0000, paragraph 40. 29 – Order in Case C‑167/94 Grau Gomis and Others [1995] ECR I‑1023, paragraph 9; ABNA and Others, cited in footnote 28, paragraph 46; and Liga Portuguesa, cited in footnote 28, paragraph 40. 30 – Joined Cases 141/81 to 143/81 Holdijk and Others [1982] ECR 1299, paragraph 6; Case C‑303/05 Advocaten voor de Wereld [2007] ECR I‑3633, paragraph 20; and the order in Case C‑9/98 Agostini [1998] ECR I‑4261, paragraph 5. 31 – At that time the Information Note applied in the version published in OJ 2005, C 143, p. 1. The version of the Information Note which now applies is published in OJ 2009, C 297, p. 1. The current edition is also available on the Court website http://curia.europa.eu under Court of Justice / Procedure. 32 – To the same effect, Case C‑345/06 Heinrich [2009] ECR I-0000, paragraph 35, and Liga Portuguesa, cited in footnote 28, paragraphs 41 and 42. 33 – Case C‑355/97 Beck and Bergdorf [1999] ECR I‑4977, paragraph 22; Case C‑333/07 Régie Networks [2008] ECR I‑10807, paragraph 46; and Case C‑478/07 Budějovický Budvar [2009] ECR I-0000, paragraph 63. 34 – Case C‑212/06 Gouvernement de la Communauté française and Gouvernement wallon [2008] ECR I‑1683, paragraph 29; see also the case-law cited in footnote 33. 35 – According to the information provided by the Commission, which the Belgian Government confirmed at the hearing before the Court, the registration requirement was terminated by Royal Decree of 31 July 2008 amending certain royal decrees implementing the Law of 24 December 1993 on public procurement and certain contracts for works, supplies and services (Moniteur belge of 18 August 2008, p. 43572). 36 – This is probably because a registration requirement such as that which forms the subject-matter of the first question no longer applies in Belgium (see footnote 35). 37 – Now Articles 56 and 57 TFEU. 38 – Case C‑324/99 DaimlerChrysler [2001] ECR I‑9897, paragraph 32; Case C‑210/03 Swedish Match [2004] ECR I‑11893, paragraph 81; and Case C‑569/07 HSBC Holdings and Vidacos Nominees [2009] ECR I-0000, paragraph 26. 39 – Joined Cases C‑285/99 and C‑286/99 Lombardini and Mantovani [2001] ECR I‑9233, paragraph 33; Case C‑470/99 Universale-Bau and Others [2002] ECR I‑11617, paragraph 88; and Case C‑213/07 Michaniki [2008] ECR I‑9999, paragraph 38. 40 – Michaniki, cited in footnote 39, paragraph 43; to the same effect, Joined Cases C‑226/04 and C‑228/04 La Cascina and Others [2006] ECR I‑1347, paragraph 22, and Case C‑538/07 Assitur [2009] ECR I-0000, paragraph 20, both concerning Article 29 of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1), the contents of which are the same. 41 – The Court has consistently held that the provisions of European law concerning public procurement serve, inter alia, to realise freedom to provide services (see Case C‑44/96 Mannesmann Anlagenbau Austria and Others [1998] ECR I‑73, paragraph 43; Michaniki, cited in footnote 39, paragraph 39; and Case C‑480/06 Commission v Germany [2009] ECR I-0000, paragraph 47); it has also consistently held that the provisions of secondary law must be interpreted and applied so as to render them consistent with primary law (see Case 218/82 Commission v Council [1983] ECR 4063, paragraph 15; Case C‑305/05 Ordre des barreaux francophones et germanophone and Others [2007] ECR I‑5305, paragraph 28; and Joined Cases C‑402/07 and C‑432/07 Sturgeon and Others [2009] ECR I-0000, paragraph 48). 42 – To this effect, Case 76/81 Transporoute et travaux (‘Transporoute’) [1982] ECR 417, paragraphs 12 and 13, on Article 28 of Council Directive 71/305/EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts (OJ, English Special Edition 1971 (II), p. 682), a predecessor directive to Directive 93/37. 43 – See Transporoute, cited in footnote 42, paragraph 15, and Case C‑225/98 Commission v France [2000] ECR I‑7445, paragraph 87, both of which relate to Directive 71/305. 44 – Similarly, Transporoute, cited in footnote 42, paragraph 10, in which the Court examined briefly whether the establishment permit at issue in that case could be used to assess the financial and economic standing of undertakings with regard to their participation in public contracts, a criterion permitted under Directive 71/305. 45 – The wording of Article 2(1)(11) of the Royal Decree of 1978, where reference is made to the contributions to be levied by the (Belgian) National Social Security Office and the contributions to the (Belgian) Subsistence Protection Fund, is particularly significant in this regard. On the other hand, the fulfilment of tax and social security obligations in the country of origin forms the subject-matter of Article 15(4)(a) of the Royal Decree of 1977. 46 – See, instead of many cases, Case C‑107/98 Teckal [1999] ECR I‑8121, paragraph 33; Case C‑58/98 Corsten [2000] ECR I‑7919, paragraph 24; and Joined Cases C‑378/07 to C‑380/07 Angelidaki and Others [2009] ECR I-0000, paragraph 48. 47 – Michaniki, cited in footnote 39, paragraphs 44, 45, 47, 55 and 63, with further references. 48 – Michaniki, cited in footnote 39, paragraphs 39, 53, 60 and 63, with further references. 49 – Michaniki, cited in footnote 39, paragraph 41; to the same effect, Transporoute, cited in footnote 42, paragraph 9, and La Cascina, cited in footnote 40, paragraph 21. 50 – Case C‑390/99 Canal Satélite Digital [2002] ECR I‑607, paragraph 39; 51 – To that effect, Corsten, cited in footnote 46, paragraphs 47 and 48, and Case C‑215/01 Schnitzer [2003] ECR I‑14847, paragraphs 36 and 37, both concerning the requirement relating to entry in the skilled trades register of the Member State in which the service is provided. 52 – The present case differs in this respect from Corsten, cited in footnote 46, and Schnitzer, cited in footnote 51, in which the requirement relating to entry in the German skilled trades register gave rise to considerable delays in the provision of cross-border services. 53 – Case C‑433/04 Commission v Belgium [2006] ECR I‑10653. 54 – Commission v Belgium, cited in footnote 53, paragraphs 13 and 14. 55 – In the event of failure to register, provision was made for, one, withholding of a sum equivalent to 15% of the price charged, and, two, joint liability to the principal for any tax debts of the contractor at the rate of 35% of the price of the work to be carried out (Commission v Belgium, cited in footnote 53, paragraphs 30 and 31). 56 – See point 49 above. 57 – The applicants in the main proceedings, the Czech Government and the Commission. 58 – See points 43 and 44 above. 59 – See my comments on the first question, in particular point 52. 60 – See point 18 above. 61 – As regards the requirement relating to the impartial conduct of an authorisation procedure see, for example, Case C‑385/99 Müller-Fauré and van Riet [2003] ECR I‑4509, paragraph 85; concerns about the participation of potential competitors in a public body’s authorisations are expressed, for example, in Case C‑49/07 MOTOE [2008] ECR I‑4863, paragraphs 51 and 52, and Case C‑169/07 Hartlauer [2009] ECR I‑0000, paragraph 69; see also Case C‑506/04 Wilson [2006] ECR I‑8613, paragraphs 54 to 58, concerning the participation of potential competitors in professional disciplinary and administrative appeals committees. 62 – As regards the applicability to national authorities of the primacy of European Union law, see Case 103/88 Costanzo [1989] ECR 1839, paragraphs 29 to 33, and Case C‑341/08 Petersen [2010] ECR I-0000, paragraph 80. 63 – Case 279/80 Webb [1981] ECR 3305, paragraph 17; Canal Satélite Digital, cited in footnote 50, paragraph 38; and Commission v Belgium, cited in footnote 53, paragraph 37.