Judgment;Summary — ECLI:EU:C:2022:869
Date: 2022-11-10
Language of the case: Dutch
Court formation: Eighth Chamber
Subject matter: Public procurement in the European Union
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary  C-631/21 – 1 
Case C-631/21 
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:  
14 October 2021 
Referring court:  
Gerechtshof’s-Hertogenbosch (Netherlands) 
Date of the decision to refer:  
5 October 2021 
Appellant:  
Taxi Horn Tours BV 
Respondents:  
Gemeente Weert 
Gemeente Nederweert 
Touringcars VOF 
  
Subject matter of the main proceedings 
Appeal against a decision in interim proceedings in a procurement procedure. The 
appellant challenged at first instance the decision of two municipalities (‘the 
municipalities’) to award a contract to a vennootschap onder firma (general 
partnership; ‘VOF’) which had submitted only one European Single Procurement 
Document (‘ESPD’). According to the appellant, each of the two partners of the 
VOF should have submitted an ESPD.  
Subject matter and legal basis of the request 
Interpretation of EU law pursuant to Article 267 TFEU 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-631/21 
 
2  
Questions referred for a preliminary ruling 
1. If collaborating persons (natural persons and/or legal persons) operate a joint 
undertaking (in this case in the form of a general partnership): 
– must each of the collaborating persons then submit a separate 
European Single Procurement Document; or  
– must each of the collaborating persons and their joint undertaking then 
submit a separate European Single Procurement Document; or  
– does only the joint undertaking need to submit one European Single 
Procurement Document? 
2. Does it make a difference in this regard: 
– whether the joint undertaking is temporary or not temporary 
(enduring); 
– that the collaborating persons are themselves economic operators; 
– that the collaborating persons operate their own undertakings which 
are similar to the joint undertaking, or at least are active in the same 
market; 
– that the joint undertaking is not a legal person; 
– that the joint undertaking may have (recoverable) assets that are 
separate (from the assets of the partners); 
– whether the joint undertaking has the authority under national law to 
represent the collaborating persons in answering the questions of the 
European Single Procurement Document; 
– that under national law, in the case of a general partnership, it is the 
partners who assume the obligations arising from the contract and are 
jointly and severally liable for fulfilling them (and not therefore the 
general partnership itself)?  
3. If several of the factors mentioned under 2 are significant, how do they 
relate to each other? Are certain factors more significant than other factors 
or even of decisive significance?  
4. Is it correct that, in the case of a joint undertaking, a separate European 
Single Procurement Document is in any event required from a collaborating 
person if the execution of the contract will (also) involve the use of 
resources that belong to that person’s own undertaking (such as staff and 
business assets)?  
TAXI HORN TOURS 
 
3 
5. Does the joint undertaking have to meet certain requirements in order to be 
considered a single economic operator? If so, what are those requirements? 
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 (OJ 
2014 L 94, p. 65), Articles 2, 19, 59 and 63. 
Commission Implementing Regulation (EU) 2016/7 of 5 January 2016 
establishing the standard form for the European Single Procurement Document 
(OJ 2016 L 3, p. 16). 
Provisions of national law relied on 
Aanbestedingswet 2012 (Law on Procurement of 2012), Articles 2.52, 2.84, 2.85; 
Aanbestedingsbesluit (Decree on Procurement), Article 2; Burgerlijk Wetboek 
(Civil Code), Article 7A: 1655; Wetboek van Koophandel (Commercial Code), 
Articles 16, 17(1), 18.  
Succinct presentation of the facts and procedure in the main proceedings 
1 In this judgment, the Gerechtshof (Court of Appeal) has decided to refer questions 
to the Court of Justice for a preliminary ruling in the context of an appeal against a 
judgment in interim proceedings brought by Taxi Horn against the municipalities, 
in which Touringcars VOF (‘Touringcars’) is an intervening party.  
2 On 28 February 2019, the municipalities initiated a European public procurement 
procedure for the transport of primary school pupils for the purposes of physical 
education (‘gymnastics transport’) in the period from 2020 to the end of the 2027-
2028 school year. The award criterion was the most economically advantageous 
tender.  
3 The procurement documents included the Tender Instructions that the 
municipalities had drawn up for this procurement. Among other things, this 
document provided as follows:  
“1.9 Signing authority 
An officer who is authorised to represent and bind the company must sign the 
completed Self-Declaration (ESPD – European Single Procurement Document), 
tender and annexes. By signing, the signatory guarantees the correctness and 
validity of the entire tender.  
(…) 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-631/21 
 
4  
1.18 Tendering 
(…) 
Tendering in groups of several carriers is also permitted. The group must meet the 
requirements set. If you tender as a group, the group must designate a coordinator. 
Each group member is jointly and severally liable for the performance of the 
transport agreement. The tenders of group members must show how the continuity 
of the gymnastics transport will be guaranteed if one or more group members 
cannot fulfil their responsibilities.  
(…) 
2.1 Number of copies/completeness 
(…) 
The tender must be complete and include the following documents:  
• A duly completed and validly signed Self-Declaration (ESPD, Annex 2); the 
ESPD is a pdf file that must be completed and that we have made available via 
TenderNed.” 
4 On 11 November 2019, it became apparent that only Taxi Horn and Touringcars 
had submitted a tender. The Touringcars tender was submitted by [F]. [F] 
submitted one ESPD on behalf of Touringcars.  
5 Touringcars is a general partnership of unlimited duration established on 
1 January 2011. According to the handelsregister (trade register), Touringcars has 
82 employees and its activities comprise “occasional passenger transport by road, 
transport by taxi and trade in and repair of passenger cars and light commercial 
vehicles”. The partners in Touringcars are [K] B.V. and [F] Touringcars B.V. The 
director of Touringcars is [F], with full authority to act. The two partners operate 
their own transport companies. The managing director of the partner [K] B.V. is 
[K]. [F] is the authorised representative of [K] B.V., with the title of commercial 
director. According to the trade register, [K] B.V. has 39 employees. The sole 
managing director and shareholder of the partner [F] Touringcars B.V. is [F] 
Beheer B.V. According to the trade register, [F] Touringcars B.V. does not have 
any staff.  
6 By letter of 27 January 2020, [K] stated, inter alia: 
“On 5 January 2011, I, as sole and independent authorised director of [K] B.V., 
granted Mr [F] full authorisation to represent [K] B.V. (…) Although Mr [F] and I 
have regular consultations about the ins and outs of the company(-ies) associated 
with [K] B.V., I have left the entire management to him from that date. With 
regard to the latter, I also note that, from 1 January 2011, [K] B.V. entered into a 
general partnership with [F] Touringcars B.V. under the name Touringcars 
TAXI HORN TOURS 
 
5 
V.O.F. In the context of that association, Mr. [F] and I also have regular 
consultations, but he is the one who actually runs the undertaking.”  
7 By letters of 3 and 5 December 2019, the municipalities notified Taxi Horn that 
they were awarding the contract to Touringcars. 
8 Taxi Horn brought proceedings for interim relief against that award. Touringcars 
intervened in those interim proceedings. The judge hearing applications for 
interim relief found in favour of Taxi Horn.  
9 The municipalities subsequently concluded agreements for gymnastics transport 
with Touringcars. These agreements came into effect on 1 March 2020.  
10 The question raised on appeal is whether it sufficed that Touringcars submitted a 
single ESDP, or whether the two partners should each have submitted a separate 
ESPD.  
Essential arguments of the parties to the main proceedings 
11 Taxi Horn submits, inter alia, that Touringcars is a permanent association between 
the partners’ undertakings and thus constitutes a group of undertakings. It is 
therefore important that the conduct and declarations of each partner must be able 
to be verified by means of an individual ESPD.  
12 According to the municipalities, it does not follow from EU and national 
legislation that each partner in a general partnership must submit a European 
Single Procurement Document (ESPD).  
13 The municipalities argue that a distinction should be made between temporary and 
permanent associations. In EU public procurement law, a group of economic 
operators refers to a temporary association. A general partnership is a partnership 
as referred to in recital 14 of Directive 2014/24/EU and is therefore, in its entirety, 
an undertaking and not a group. Moreover, verification of partners can take place 
by means of Part IIIA of the ESPD.  
Succinct presentation of the reasoning in the request for a preliminary ruling  
14 Directive 2014 /25/EU, which applies, inter alia, to transport services, contains 
similar provisions (respectively, recitals 17 and 18,; Article 2, introductory 
wording and paragraph 6 thereof; Article 37(2), Article 80(3), Article 79). 
Commission Implementing Regulation (EU) 2016/7 of 5 January 2016 
establishing the standard form for the European Single Procurement Document 
states inter alia: 
(1) One of the major objectives of Directives 2014/24/EU and 2014/25/EU is the 
lessening the administrative burdens of contracting authorities, contracting entities 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-631/21 
 
6  
and economic operators, not least small and medium-sized enterprises. A key 
element of that effort is the European single procurement document (ESPD). The 
standard form for the ESPD should consequently be drafted in such a manner that 
the need to produce a substantial number of certificates or other documents related 
to exclusion and selection criteria is obviated. With the same objective in mind, 
the standard form should also provide the relevant information in respect of 
entities on whose capacities an economic operator relies, so that the verification of 
that information can be carried out together with the verification in respect of the 
main economic operator and on the same conditions. 
Annex 1 
Instructions  
The ESPD is a self-declaration by economic operators providing preliminary 
evidence replacing the certificates issued by public authorities or third parties. As 
provided in Article 59 of Directive 2014/24/EU, it is a formal statement by the 
economic operator that it is not in one of the situations in which economic 
operators shall or may be excluded; that it meets the relevant selection criteria and 
that, where applicable, it fulfils the objective rules and criteria that have been set 
out for the purpose of limiting the number of otherwise qualified candidates to be 
invited to participate. Its objective is to reduce the administrative burden arising 
from the requirement to produce a substantial number of certificates or other 
documents related to exclusion and selection criteria. 
(...) 
An economic operator participating on its own and which does not rely on the 
capacities of other entities in order to meet the selection criteria, must fill out one 
ESPD. 
An economic operator participating on its own but relying on the capacities of 
one or more other entities must ensure that the contracting authority or contracting 
entity receives its own ESPD together with a separate ESPD setting out the 
relevant information for each of the entities it relies on. 
Finally, where groups of economic operators, including temporary associations, 
participate together in the procurement procedure, a separate ESPD setting out 
the information required under Parts II to V must be given for each of the 
participating economic operators.  
In all cases where more than one person is member of the administrative, 
management or supervisory body of an economic operator or has powers of 
representation, decision or control therein, each may have to sign the same ESPD, 
depending on national rules, including those governing data protection. 
15 The procurement directives were transposed in Netherlands law in the Law on 
Procurement of 2012.  
TAXI HORN TOURS 
 
7 
16 Article 2.52(3) and (4) of the Law on Procurement provides as follows: 
“3. An association of economic operators can submit a tender or apply as a 
candidate.  
4. A contracting authority shall not require an association of economic 
operators to have a specific legal form in order to submit a tender or a request to 
participate.”  
17 Article 2.84(1) and (2) of this law provides as follows: 
“A self-declaration is a declaration by an economic operator in which it indicates: 
a. whether any exclusion grounds apply to it; 
b. whether it meets the suitability requirements set out in the notice or in the 
procurement documents; 
c. whether it complies or will comply with the technical specifications and 
implementing conditions relating to the environment and animal welfare or which 
are based on social considerations;  
d. whether and how it meets the selection criteria. 
2. The data and information that may be required in a declaration and the 
model or models for such a declaration shall be laid down by or pursuant to an 
Order in Council.” 
18 Article 2.85(1) of this law provides as follows: 
“1. The contracting authority shall require an economic operator to submit, 
together with its request to participate or its tender, a self-declaration using the 
appropriate model, and shall specify the data and information to be contained in 
the self-declaration.” 
(…) 
19 The Decree on Procurement provides as follows in so far as is relevant here: 
Article 2 
1. The self-declaration referred to in Article 2.84 of the Law shall include at 
least the following data:  
a. data on the contracting authority or the special-sector business and on the 
procurement procedure; 
b. data on the economic operator; 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-631/21 
 
8  
c. a declaration regarding grounds of exclusion; 
d. a declaration regarding the suitability requirements set and a declaration 
regarding technical specifications and performance conditions relating to the 
environment;  
e. a declaration on how the selection criteria are being met; 
f. a declaration regarding the correctness of the completed self-declaration and 
the authority of the signatory; 
g. the date and the signature. 
(…) 
3. The model or models for the self-declaration shall be laid down by an Order 
in Council. (…)” 
20 Touringcars has the legal form of a general partnership. Like the (professional) 
partnership (maatschap) and the limited partnership (commanditaire 
vennootschap), the general partnership is a form of partnership 
(personenvennootschap). 
21 In his ruling of 31 January 2020 (ECLI:NL:PHR:2020:97) (numbers 3.3-3.8), the 
procureur-generaal (Procurator General) at the Hoge Raad (Supreme Court) 
described a partnership (personenvennootschap) as follows: 
“The different types of partnership 
3.3 Our law recognises three types of partnership: the (professional) partnership 
(maatschap), the general partnership (vennootschap onder firma) and the limited 
partnership (commanditaire vennootschap; ‘CV’). These are forms of association 
entered into by agreement, and unlike the legal persons listed in Book 2 of the 
Civil Code, they do not involve institutions. At the same time they are sometimes, 
and perhaps it could be said, to an increasing extent, to be regarded as entities, so 
that the question of legal personality and/or legal subjectivity arises (more 
emphatically). The VOF and the CV are qualified forms of partnership.  
3.4 The (professional) partnership (maatschap) is defined by the legislature in 
Article 7A: 1655 of the Civil Code: ‘Partnership is an agreement, whereby two or 
more persons bind themselves to contribute something to a community, with the 
aim of sharing the resulting benefit with each other.’  
A partnership may be ‘silent’ or ‘public’; the determining factor is whether or not 
it trades under a common name. If it trades under a common name, it is public. If 
that is not the case, it is called ‘silent’; third parties are therefore not aware of the 
existence of the partnership (so that they do not contract with ‘the partnership’). 
TAXI HORN TOURS 
 
9 
The VOF and the CV are both species of the genus public partnership (openbare 
maatschap). In Article 16 of the WvK 1 the VOF is defined as follows: 
‘A general partnership is the partnership entered into to operate a business under a 
common name.’ (…) 
3.5 It follows from a combined reading of the aforementioned Article 16 of the 
Commercial Code and Article 7A: 1655 of the Civil Code that the VOF: 
a) is an agreement, 
b) aimed at the collaboration between two or more persons, 
c) who bind themselves to contribute something to a community, 
d) in order to achieve a common benefit, 
e) with the collaboration serving to operate a business, and 
f) which is entered into under a common name. 
The law sets no formal requirements for the formation of a partnership 
(maatschap), a VOF and a CV. As soon as the association meets the description of 
Article 7A:1655 of the Civil Code and/or Article 16 or 19 of the Commercial 
Code, it can be classified as a partnership (maatschap), a VOF or a CV. In 
addition, for the VOF (and the CV), the law also stipulates that it must be entered 
into by a publicly or privately executed deed (Article 22 of the Commercial Code) 
and that it must be registered in the trade register (Article 23 of the Commercial 
Code), but these are not constitutive requirements. The deed requirement has a 
purely evidential function (Article 157 Rv 2) and the registration requirement 
serves to protect third parties (legal certainty).  
Representative authority and joint and several liability of the partners 
3.6 Article 17(1) of the Commercial Code stipulates that, unless contractually 
agreed otherwise, each partner is authorised to act on behalf of the VOF.  
“Each of the partners, who is not excluded from doing so, is authorised to act in 
the name of the partnership, to expend and receive monies, and to bind the 
company to third parties, and third parties to the company.” 
As far as the legal consequences are concerned, Article 18 of the Commercial 
Code is important: 
 
1 Wetboek van Koophandel (Commercial Code). 
2 Wetboek van Burgerlijke Rechtsvordering (Code of Civil Procedure). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-631/21 
 
10  
‘In general partnerships, each partner is jointly and severally liable for the 
obligations of the partnership.’ 
The partners are therefore jointly and severally liable within the meaning of 
Article 6:6(2) of the Civil Code, which means that each partner is fully liable for 
the debts of the partnership.” 
22 In its judgment of 19 April 2019, ECLI:NL:HR:2019:649 (UWV v 
bewindvoerder), the Supreme Court took the following as its point of departure 
with regard to the VOF: 
“3.4.1 
A VOF is a legal relationship entered into by agreement for the purpose of 
operating a business under a common name in an enduring association (see 
Article 16 of the Commercial Code in conjunction with Article 7A:1655 of the 
Civil Code). Under current law, the VOF does not have legal personality. 
Nevertheless, to a certain extent, legislation and case-law accord a degree of 
autonomy to the VOF in judicial matters as compared to the individual partners. 
For example, a VOF can institute legal proceedings in its own name (Article 51(2) 
of the Code of Civil Procedure) and can be declared bankrupt in its own name 
(Article 4(3) of the Fw 3). Furthermore, according to the settled case-law of the 
Supreme Court, the partners’ assets intended for conducting the business of the 
VOF are separated from their private assets. Debts incurred within the framework 
of the business conducted by the VOF can be recovered from this separated 
capital. The bankruptcy of a VOF relates to the liquidation and distribution of the 
separated capital and does not always and automatically imply the bankruptcy of 
the partners. (…) 
3.4.2 
The lack of legal personality means that a VOF is not an independent bearer of 
subjective rights and obligations. When a partner acts in the name of the VOF 
(which every partner is in principle authorised to do pursuant to Article 17 of the 
Commercial Code), he acts on behalf of the joint partners and binds the joint 
partners. An agreement ‘with the VOF’ must therefore be regarded as an 
agreement with the joint partners in their capacity as partners (…). 
3.4.3 
Article 18 of the Commercial Code stipulates that each of the partners is jointly 
and severally liable for the obligations of the company. This provision means that 
each partner is liable for the entirety of the obligations of the joint partners in their 
capacity as partners. Article 18 of the Commercial Code therefore constitutes an 
exception to the principle set out in Article 6:6(1) of the Civil Code that if a 
 
3  Faillissementswet (Law on Bankruptcy). 
TAXI HORN TOURS 
 
11 
performance is owed by two or more debtors, they are each liable for an equal 
part. Article 18 of the Commercial Code therefore creates a joint and several 
liability for the partners among themselves and not a joint and several liability for 
each partner with the VOF (the joint partners).  
3.4.4 
A creditor of the joint partners can enforce his claim both against the joint partners 
(‘against the VOF’) and against each partner individually. A creditor of the 
partnership thus has two concurrent rights of action against each partner: one 
against the joint partners (‘against the VOF’), which is recoverable from the 
separated assets of the VOF, and one against the partner personally, which is 
recoverable from the private assets of that partner. A partner cannot invoke the 
defences that he is personally entitled to against the first claim, but he can invoke 
them against the second claim. A judgment given in the name of the VOF, 
allowing a claim only against the VOF, cannot become res judicata against a 
partner personally and cannot be enforced against his private assets. A creditor of 
the VOF can bring an action both against the VOF (the joint partners in their 
capacity as such) and against one or more partners in private; he can also do 
both – consecutively or concurrently. (…).”  
23 The partners ([K] B.V. and [F] Touringcars B.V.) are economic operators who, 
with their own individual undertakings, are also active in the same market as the 
undertaking (the general partnership) which has tendered for the contract 
(Touringcars). Taxi Horn has argued that Touringcars makes use of resources 
which are made available to it from the partners’ own undertakings. The 
municipalities have refuted that argument.  
24 It is important that the contracting authority be able to verify whether the 
economic operator wishing to perform a contract must be excluded and whether it 
meets the requirements of suitability, specific conditions and selection criteria. If 
persons collaborate on an enduring basis under a common name in a separate, 
joint undertaking, the question arises whether the verification may be limited to 
the joint undertaking only or whether the verification should also cover each of 
the collaborating persons.  
25 The key question is whether it suffices that an economic operator submits a single 
ESPD where persons (natural and/or legal) are in a collaborative relationship 
within it. This requires an interpretation of Articles 2, 19, 59 and 63 of Directive 
2014/24/EU and of Implementing Regulation (EU) 2016/7.