Opinion of the Advocate General — ECLI:EU:C:2016:137
Date: 2016-03-03
Language of the case: Portuguese
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary — Judgment of the Court (Fifth Chamber), 7 July 2016 1. Acts of the institutions — Directives — Effect — Member State’s failure to implement — Right of individuals to rely upon the directive — Conditions (Art. 288, third para., TFEU) 2. Acts of the institutions — Directives — Direct effect — Body having responsibility for providing a public-interest service, under the control of the State, and having special powers — Whether a directive may be relied upon against that body (Art. 288, third para., TFEU) 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 — Qualitative selection criteria — Technical and professional ability — Means of proof — Article 48(2)(a)(ii), second indent, of Directive 2004/18 — Obligations and powers of the national courts — Interpretation of national rules in conformity with EU law — Limits — Obligation of the Member State concerned to compensate individuals for loss sustained as a result of domestic law’s being inconsistent with Union law (Art. 288, third para., TFEU; European Parliament and Council Directive 2004/18, Art. 48(2)(a)(ii), second indent) 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 — Qualitative selection criteria — Technical and professional ability — Means of proof — Article 48(2)(a)(ii), second indent, of Directive 2004/18 — Direct effect (Art. 288, third para., TFEU; European Parliament and Council Directive 2004/18, Art. 48(2)(a)(ii), second indent) 5. 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 — Means of proof — Hierarchical relationship between the private purchaser’s certification and the tenderer’s unilateral declaration — Limitation of the use of unilateral declarations solely to cases where the certification cannot be obtained — Not permissible — Breach of the principle of proportionality (European Parliament and Council Directive 2004/18, Art. 48(2)(a)(ii), second indent) 6. EU law — Interpretation — Texts in several languages — Differences between the various language versions — Account to be taken of the overall scheme and purpose of the legislation in question 7. 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 — Means of proof — Whether the adjudicating authority may require a private purchaser’s certification to be authenticated by a notary — Excluded (European Parliament and Council Directive 2004/18, Recital 32 and Art. 48(2)(a)(ii), second indent) 1. See the text of the decision. (see para. 16) 2. See the text of the decision. (see paras 21, 22) 3. See the text of the decision. (see paras 24-26) 4. The second indent of Article 48(2)(a)(ii) 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, even if not transposed into national law, it satisfies the conditions for conferring on individuals rights that they may assert against a contracting authority before national courts, provided that that authority is a public entity or has been given responsibility, pursuant to a measure adopted by the State, for providing a public-interest service under the control of the State and which has, for that purpose, special powers beyond those which result from the normal rules applicable in relations between individuals. (see para. 27, operative part 1) 5. The second indent of Article 48(2)(a)(ii) 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 it does not preclude the application of rules laid down by a contracting authority, which do not allow an economic operator to provide evidence of his technical abilities by a unilateral declaration, unless he proves that it is impossible or very difficult to obtain a certification from the private purchaser. In that context, rules in a contract notice allowing an economic operator to produce a unilateral declaration in order to prove his technical abilities only if he proves that it is absolutely impossible to obtain a private purchaser’s certification would prove disproportionate. By contrast, rules in a contract notice according to which an economic operator is justified in relying upon such a unilateral declaration also where he proves, by means of objective evidence to be checked on a case-by-case basis, that there is a serious difficulty preventing him from obtaining such a certification, due for example to the bad faith of the private purchaser concerned, are consistent with the principle of proportionality, since they do not place an excessive burden of proof on the operator in question in relation to the pursuit of the relevant objectives. (see paras 41, 42, 44, operative part 2) 6. See the text of the decision. (see para. 48) 7. The second indent of Article 48(2)(a)(ii) 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 it precludes the application of rules laid down by a contracting authority which, on pain of exclusion of the tenderer’s application, require the private purchaser’s certification to contain authentication of the signature by a notary, lawyer or other competent entity. The second indent of Article 48(2)(a)(ii) of Directive 2004/18 establishes a closed system which limits the possibility for contracting authorities of providing for new means of evidence or formulating additional requirements introducing a substantive change to the nature or the conditions for the production of evidence already provided for. It must be found that requiring the signature on the private purchaser’s certification to be authenticated would introduce a formality amounting to such a substantive change to the first of the two means of evidence referred to in that provision, making more burdensome the steps which must be taken by an economic operator in order to discharge his burden of proof, which would be contrary to the general scheme of that article. In addition, since Directive 2004/18 seeks to facilitate the involvement of small- and medium-sized undertakings in the public contracts procurement market, as stated in recital 32 of that directive, making the evidential value of the private purchaser’s certification conditional on its signature being authenticated by a third party would introduce a formality likely not to open up public contracts to the broadest competition possible, but to restrict and limit the involvement of economic operators, in particular foreigners, in such contracts. (see paras 49, 50, 52, 53, 56, operative part 3)