Judgment;Summary — ECLI:EU:C:2023:47
Date: 2023-01-26
Language of the case: Romanian
Court formation: Third Chamber
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Romania

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: 
29 June 2021 
Referring court: 
Consiliul Național de Soluționare a Contestațiilor (National Council 
for Dispute Resolution, Romania) 
Date of the decision to refer: 
22 June 2021 
Applicant: 
SC NV Construct SRL 
Contracting authority: 
Județul Timiș (District of Timiș) 
Intervening party: 
SC Proiect Construct Regiunea Transilvania SRL 
  
Subject matter of the main proceedings 
Action seeking, in essence, annulment of the decision of a contracting authority 
relating to the determination of the outcome of the tendering procedure organised 
for the award of a public contract for producing the feasibility study and technical 
design for the construction of a road 
Subject matter and legal basis of the request 
An interpretation of Articles 58 and 63 of Directive 2014/24/EU, and of the 
principle of proportionality, the principle of liability and the principle of 
transparency, is sought pursuant to Article 267 TFEU. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-403/21 
 
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Questions referred 
(1) Must Article 58 of Directive [2014/24], the principal of proportionality and 
the principle of liability be interpreted as meaning that the contracting authority 
has the right to lay down the criteria relating to technical capacity, that is to say, to 
determine whether or not it is necessary to include in the procurement documents 
criteria relating to technical and professional capacity and the capacity to carry out 
the technical and professional activity arising from the provisions of special laws, 
in respect of activities of minor importance in the contract? 
(2) Do the principles of transparency and proportionality preclude the automatic 
supplementation of the procurement documents with qualification criteria arising 
from special laws applicable to activities relating to the contract to be awarded 
which were not set out in the procurement documents and which the contracting 
authority decided not to impose on the economic operators? 
(3) Do Article 63 of the directive and the principle of proportionality preclude 
the exclusion from the [tendering] procedure of a tenderer who has not named an 
operator as a subcontractor for the purpose of demonstrating compliance with 
certain criteria relating to technical and professional capacity and the capacity to 
carry out the technical and professional activity arising from the provisions of 
special laws not set out in the procurement documents in the case where the 
tenderer in question has chosen a different contractual form of involving 
specialists in the contract, that is to say [a] contract for the supply/provision of 
services, or has submitted [a] declaration of willingness on their part? Does the 
right to determine its organisation and contractual relations within the group lie 
with the economic operator and is it possible also to involve certain 
providers/suppliers in the contract in the case where the provider is not one of the 
entities on whose capacity the tenderer intends to rely in order to demonstrate 
compliance with the relevant criteria? 
Provisions of EU law and EU case-law cited 
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, 
recitals 15 and 90, Articles 58 and 63 
Commission Delegated Regulation (EU) 2019/1828 of 30 October 2019 amending 
Directive 2014/24/EU of the European Parliament and of the Council in respect of 
the thresholds for public supply, service and works contracts, and design contests  
Order of 17 October 2018, Beny Alex, C-353/18, EU:C:2018:829, and judgment of 
2 June 2016, Pizzo, C-27/15, EU:C:2016:404 
NV CONSTRUCT 
 
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Provisions of national law cited 
Legea nr. 101/2016 privind remediile și căile de atac în materie de atribuire a 
contractelor de achiziție publică, a contractelor sectoriale și a contractelor de 
concesiune de lucrări și concesiune de servicii, precum și pentru organizarea și 
funcționarea Consiliului Național de Soluționare a Contestațiilor (Law 
No 101/2016 on remedies and appeals relating to the award of public contracts, 
sectoral contracts and work concession and service concession contracts, as well 
as the organisation and functioning of the National Council for Dispute 
Resolution) (the ‘CNSC’), Articles 12 and 14, which confer on the CNSC the 
power to settle disputes concerning the award of public contracts 
Legea nr. 98/2016 privind achizițiile publice (Law No 98/2016 on public 
contracts), Articles 3, 55, 154, 172, 179, 181 and 218 to 220 relating to the 
procedure for awarding public contracts 
Hotărârea Guvernului nr. 395/2016 pentru aprobarea Normelor metodologice de 
aplicare a prevederilor referitoare la atribuirea contractului de achiziție 
publică/acordului-cadru din Legea nr. 98/2016 privind achizițiile publice 
(Government Decision No 395/2016 approving the detailed rules for the 
implementation of the provisions relating to the award of public 
contracts/framework contracts of Law No 98/2016 on public contracts), 
Articles 29 to 31 and 51 
Decisions of a number of national courts from which it follows that there is no 
uniform practice as regards the possibility of procurement documents being 
supplemented with provisions of national law relating to various activities coming 
within the scope of the public contract but which are of minor importance in the 
contract in question, and also as regards the requirement to name the 
subcontractors for those activities in the tender 
Succinct presentation of the facts and of the main proceedings 
1 By an application lodged with the CNSC on 16 April 2021, the applicant SC NV 
Construct SRL, established in Romania, sought, in essence, annulment of the 
decision of the contracting authority, the Județul Timiș, relating to the 
determination of the outcome of the tendering procedure organised for the award 
of a public contract for the drawing up the feasibility study and the technical 
design for the construction of a road connecting the ‘Traian Vuia’ International 
Airport in Timișoara to the A1 motorway (Romania). 
2 SC Proiect Construct Regiunea Transilvania SRL, also established in Romania, 
has intervened in the proceedings as the successful tenderer in that call for tenders. 
3 The applicant’s tender was ranked fourth, after those submitted by the intervening 
party (ranked first) and by two other commercial companies (ranked second and 
third). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-403/21 
 
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4 In the grounds of the action, the applicant claims that the technical proposals 
submitted by the other tenderers fail to satisfy certain of the requirements set out 
in the procurement documents since they are not lawfully able to carry out certain 
activities relating to the contract, including the activity of drawing up the 
topographic survey, the activity of drawing up the documents necessary for 
obtaining approval for setting aside the land located outside urban areas, the 
activity of compiling the valuation report on the property affected by 
expropriation, the activity of drawing up the documentation necessary for 
obtaining the approvals of the rail infrastructure manager for the railway crossing, 
and the activity of drawing up the archaeological survey. 
5 So far as the successful tender is concerned, the applicant takes the view that is 
should be declared non-compliant since the tenderer cannot lawfully carry out 
three of the activities listed above. The applicant claims, inter alia, that a 
subcontractor authorised to provide design services for the railway crossing 
should also have been mentioned in the tender since the relevant legislation 
provides that those services are to be provided only by economic operators 
authorised by the railway infrastructure manager. 
6 The intervening party contends that the action should be dismissed as unfounded 
and that the procurement documents do not lay down the requirements on which 
the respondent relies, and therefore they cannot constitute grounds for exclusion 
from the procedure by declaring the tenders non-compliant. 
7 The contracting authority states that, contrary to what the applicant claims, the 
procurement documents do not require that authorised specialists be indicated in 
the tender. On the other hand, the fact that the first-ranked tenderer did not 
initially declare its option to subcontract certain activities if it were declared 
successful is irrelevant in the present case since the national legislation confers on 
it the right to have recourse to new subcontractors after the public contract has 
been signed, during the period of its performance. 
Succinct presentation of the grounds for the request 
8 As a preliminary point, the CNSC points out that its status as a national court or 
tribunal within the meaning of Article 267 TFEU has already been recognised by 
the Court of Justice in the order of 17 October 2018, Beny Alex (C-353/18, 
EU:C:2018:829). 
9 As regards the admissibility of its request for a preliminary ruling, the CNSC 
expresses the view that there is a certain cross-border interest in the present case 
both in terms of the value of the service contract to be awarded, in that its 
estimated value is RON 1 970 967 (equivalent to EUR 421 553), and thus above 
the threshold laid down in Commission Delegated Regulation (EU) 2019/1828 
amending Directive 2014/24, and in terms of the subject matter of the procedure 
and the source of financing, in that the project in question, which is intended to 
link the ‘Traian Vuia’ International Airport in Timișoara to Pan-European 
NV CONSTRUCT 
 
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Transport Corridor IV, is financed in part by the European Regional Development 
Fund. 
10 As to the substance, the CNSC requests the Court of Justice, in essence, to rule on 
whether the tender documents may be supplemented by the provisions of national 
law relating to various activities coming within the scope of the public contract 
but which are of minor importance in the contract, and on the requirement to name 
subcontractors for those activities in the tender. 
11 According to the CNSC, this problem is often encountered in its practice and in 
that of the national courts and has given rise to a non-uniform approach which is 
liable to limit the participation of a large number of operators in the European area 
in tender procedures in Romania. 
12 In this context, the CNSC refers to the judgment of 2 June 2016, Pizzo (C-27/15, 
EU:C:2016:404), in which the Court of Justice held that an operator cannot be 
excluded from the procedure on account of requirements not set out in the 
documentation and that the principles of transparency and equal treatment which 
govern all procedures for the award of public contracts require that the substantive 
and procedural conditions concerning participation in a contract be clearly defined 
in advance, in order that the tenderers may know exactly the obligations resting on 
them and be sure that the same requirements apply to all candidates. 
13 The CNSC points out that the contracting authority alone lays down the selection 
criteria, on the basis of its right of assessment, since the CNSC and the courts 
cannot assess the need to determine them in its place. On the other hand, operators 
who have been adversely affected may, in proceedings, contest only procurement 
documents deemed to be too restrictive but cannot challenge documents on the 
ground that they are too permissive, that is to say, that they contain supplementary 
criteria liable to limit access to the procedure for other operators. 
14 The CNSC considers that, in the light of the non-uniform national practice, it is 
necessary to determine the extent to which the case-law resulting from the Pizzo 
judgment may be applied as regards the supplementation of the procurement 
documents with the provisions of national law relating to various activities which 
come within the scope of the public contract but which are of minor importance in 
that contract. 
15 A further matter which the Court of Justice ought to clarify concerns the 
requirement to name the subcontractors for all the activities of the contract, 
irrespective of their importance therein, since this issue has significant 
consequences for competition in major [tendering] procedures for infrastructure in 
Romania, in which there are many secondary activities which require such 
authorisations. 
16 Consequently, irrespective of when and to what extent a subcontractor is involved 
in the work – that is to say, whether its services are necessary at the start or end of 
the work, whether they are of major or minor importance in the work, and whether 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-403/21 
 
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or not it is certain that those services are necessary – in many situations it is 
considered that such a subcontractor must be named at the time when the tenders 
are submitted. For example, in the present case, the applicant states, inter alia, that 
it was necessary to name a subcontractor for the activity of obtaining approval for 
setting aside expropriated land located outside urban areas even though the 
procurement documents use the phrase ‘only where appropriate’ in that regard. 
17 The CNSC considers that the contracting authority alone is able to lay down the 
relevant selection criteria, in compliance with the principles of proportionality and 
transparency. If it were accepted that the procurement documents could be 
supplemented by criteria the necessity of which arose from special laws which are 
not relevant to public contracts, the second subparagraph of Article 58(1) of 
Directive 2014/24 would be infringed since automatic supplementation with such 
criteria would not comply with the principle of proportionality and the right of the 
authority to lay down the selection criteria. 
18 In the view of the CNSC, to require subcontracting as the only form of an activity 
infringes both contractual freedom and the right of economic operators to organise 
themselves and Article 63 of Directive 2014/24, under which, in the case where an 
economic operator wishes to rely on the capacities of other entities, it must 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’. 
19 Consequently, the CNSC takes the view that, in so far as the production of a 
commitment is sufficient to demonstrate certain selection criteria, a declaration of 
willingness on the part of authorised specialists is a fortiori sufficient in the case 
where no such criteria are laid down and a series of activities of minor importance 
in the tender is involved.