62009CJ0074_EN
Parties
Grounds
Operative part
Parties
In Case C‑74/09,
REFERENCE for a preliminary ruling under Article 234 EC from the Cour de Cassation (Belgium), made by decision of 22 January 2009, received at the Court on 18 February 2009, in the proceedings
Bâtiments et Ponts Construction SA,
WISAG Produktionsservice GmbH, formerly ThyssenKrupp Industrieservice GmbH,
v
Berlaymont 2000 SA,
THE COURT (Third Chamber),
composed of K. Lenaerts, President of the Chamber, R. Silva de Lapuerta, E. Juhász (Rapporteur), G. Arestis and J. Malenovský, Judges,
Advocate General: J. Kokott,
Registrar: N. Nanchev, Administrator,
having regard to the written procedure and further to the hearing on 4 March 2010,
after considering the observations submitted on behalf of:
– Bâtiments et Ponts Construction SA and WISAG Produktionsservice GmbH, formerly ThyssenKrupp Industrieservice GmbH, by D. Lagasse and E. van Nuffel, avocats,
– Berlaymont 2000 SA, by X. Dieux, J.-P. Gunther, J.-Q. De Cuyper, C. Breuvart and S. Bartholomeeusen, avocats,
– the Belgian Government, by J.-C. Halleux and C. Pochet, acting as Agents,
– the Czech Government, by M. Smolek, acting as Agent,
– the European Commission, by M. Konstantinidis and J.‑B. Laignelot, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 15 April 2010,
gives the following
Judgment
Grounds
1. This reference for a preliminary ruling concerns the interpretation of Articles 49 EC and 50 EC and of the relevant provisions, particularly Article 24, of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54).
2. The reference was made in the course of proceedings between, on the one hand, Bâtiments et Ponts Construction SA (‘BPC’), a company incorporated under Belgian law, and WISAG Produktionsservice GmbH (‘WIG’), formerly ThyssenKrupp Industrieservice GmbH, formerly WIG Industrieinstandhaltung GmbH, a company incorporated under German law, and, on the other, Berlaymont 2000 SA (‘Berlaymont 2000’), a company incorporated under Belgian law, concerning the exclusion by the latter, in its capacity as contracting authority, from participation in a public works contract of the consortium formed for that purpose by the two former companies.
Legal context
Legislation of the Union
3. The provisions, relevant to the main proceedings, of Directive 93/37, which, in the meantime, has been replaced by Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts,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), are those of Article 6 of Directive 93/37 and those in Title IV thereof, and more particularly in Chapter 2, entitled ‘Criteria for qualitative selection’, of Title IV, which chapter contains Articles 24 to 29.
4. Article 6(6) of Directive 93/37 was in the following terms:
‘Contracting authorities shall ensure that there is no discrimination between the various contractors.’
5. Article 24 of Directive 93/37 provided as follows:
‘Any contractor may be excluded from participation in the contract who:
(a) is bankrupt or is being wound up, whose affairs are being administered by the court, who has entered into an arrangement with creditors, who has suspended business activities or who is in any analogous situation arising from a similar procedure under national laws and regulations;
(b) is the subject of proceedings for a declaration of bankruptcy, for an order for compulsory winding up or administration by the court or for an arrangement with creditors or of any other similar proceedings under national laws or regulations;
(c) has been convicted of an offence concerning his professional conduct by a judgment which has the force of res judicata ;
(d) has been guilty of grave professional misconduct proved by any means which the contracting authorities can justify;
(e) has not fulfilled obligations relating to the payment of social security contributions in accordance with the legal provisions of the country in which he is established or with those of the country of the contracting authority;
(f) has not fulfilled obligations relating to the payment of taxes in accordance with the legal provisions of the country in which he is established or those of the country of the contracting authority;
(g) is guilty of serious misrepresentation in supplying the information required under this Chapter.
Where the contracting authority requires of the contractor proof that none of the cases quoted in (a), (b), (c), (e) or (f) applies to him, it shall accept as sufficient evidence:
– for points (a), (b) or (c), the production of an extract from the “judicial record” or, failing this, of an equivalent document issued by a competent judicial or administrative authority in the country of origin [or] in the country whence that person comes showing that these requirements have been met;
– for points (e) or (f), a certificate issued by the competent authority in the Member State concerned.
Where the country concerned does not issue such documents or certificates, they may be replaced [by] a declaration on oath or, in Member States where there is no provision for declarations on oath, by a solemn declaration made by the person concerned before a judicial or administrative authority, a notary or a competent professional or trade body, in the country of origin or in the country whence that person comes.
Member States shall designate the authorities and bodies competent to issue these documents and shall forthwith inform the other Member States and the Commission thereof.’
6. The first and third indents of Article 25 of Directive 93/37 provided:
‘Any contractor wishing to take part in a public works contract may be requested to prove his enrolment in the professional or trade register under the conditions laid down by the laws of the Member State in which he is established:
– in Belgium the “Registre du Commerce – Handelsregister”,
…
– in Germany, the “Handelsregister” and the “Handwerksrolle”’.
7. Article 26 of Directive 93/37 provided:
‘1. Evidence of the contractor’s financial and economic standing may, as a general rule, be furnished by one or more of the following references:
(a) appropriate statements from bankers;
(b) the presentation of the firm’s balance sheets or extracts from the balance sheets, where publication of the balance sheet is required under the law of the country in which the contractor is established;
(c) a statement of the firm’s overall turnover and the turnover on construction works for the three previous financial years.
2. The contracting authorities shall specify in the notice or in the invitation to tender which reference or references they have chosen and what references other than those mentioned under paragraph 1(a), (b) or (c) are to be produced.
3. If, for any valid reason, the contractor is unable to supply the references requested by the contracting authorities, he may prove his economic and financial standing by any other document which the contracting authorities consider appropriate.’
8. Article 27 of Directive 93/37 was worded as follows:
‘1. Evidence of the contractor’s technical capability may be furnished by:
(a) the contractor’s educational and professional qualifications and/or those of the firm’s managerial staff and, in particular, those of the person or persons responsible for carrying out the works;
(b) a list of the works carried out over the past five years, accompanied by certificates of satisfactory execution for the most important works. These certificates shall indicate the value, date and site of the works and shall specify whether they were carried out according to the rules of the trade and properly completed. Where necessary, the competent authority shall submit these certificates to the contracting authority direct;
(c) a statement of the tools, plant and technical equipment available to the contractor for carrying out the work;
(d) a statement of the firm’s average annual manpower and the number of managerial staff for the last three years;
(e) a statement of the technicians or technical bodies which the contractor can call upon for carrying out the work, whether or not they belong to the firm.
2. The contracting authorities shall specify in the invitation to tender which of these references are to be produced.’
9. Article 28 of Directive 93/37 was in the following terms:
‘Within the limits of Articles 24 to 27, the contracting authority may invite the contractor to supplement the certificates and documents submitted or to clarify them.’
10. Article 29 of Directive 93/37 provided:
‘1. Member States who have official lists of recognized contractors must adapt them to the provisions of Article 24(a) to (d) and (g) and of Articles 25, 26 and 27.
2. Contractors registered in the official lists may, for each contract, submit to the contracting authority a certificate of registration issued by the competent authority. This certificate shall state the reference which enabled them to be registered in the list and the classification given in this list.
3. Certified registration in the official lists by the competent bodies shall, for the contracting authorities of other Member States, constitute a presumption of suitability for works corresponding to the contractor’s classification only as regards Articles 24(a) to (d) and (g), 25, 26(b) and (c) and 27(b) and (d).
Information which can be deduced from registration in official lists may not be questioned. However, with regard to the payment of social security contributions, an additional certificate may be required of any registered contractor whenever a contract is offered.
The contracting authorities of other Member States shall apply the above provisions only in favour of contractors who are established in the country holding the official list.
4. For the registration of contractors of other Member States in an official list, no further proofs and statements may be required other than those requested of nationals and, in any event, only those provided for under Articles 24 to 27.
5. Member States holding an official list shall communicate to other Member States the address of the body to which requests for registration may be made.’
National legislation
11. The market in question in the main proceedings was governed, in particular, by the Royal Decree of 22 April 1977 concerning public works, supply and service contracts ( Moniteur belge
of 26 July 1977, p. 9539). Article 15 thereof, in Section 2, entitled ‘Drawing up the tender’, provided:
‘…
3. A Belgian tenderer which employs staff to whom the Law of 27 June 1969 amending the Decree-Law of 28 December 1944 on social security for workers applies must, for its tender to be regarded as valid, attach thereto a certificate of the National Social Security Office stating that it has paid social security and subsistence protection contributions or present such a certificate to the administration before the opening of tenders …
4. A foreign tenderer must, for its tender to be regarded as valid, attach thereto or present to the administration before the opening of tenders:
(a) a certificate issued by the competent authority stating that the tenderer has complied with its obligations relating to the payment of social security contributions in accordance with the legal provisions of the country in which it is established …
…
7. A tenderer must, for its tender to be regarded as valid, be registered as a contractor pursuant to Article 299a of the Income Tax Code and Article 30a of the Law of 27 June 1969 amending the Decree-Law of 28 December 1944 on social security for workers.’
12. The detailed rules of that registration obligation are governed by the Royal Decree of 5 October 1978 ( Moniteur belge
of 7 October 1978, p. 11707; ‘the Royal Decree of 1978’).
13. Article 2 of the Royal Decree of 1978, in Section 1 entitled ‘Conditions to be satisfied in order to be registered as a contractor’, provides in its paragraph 1:
‘Registration as a contractor … shall be granted only to contractors which satisfy the following conditions:
…
2. in respect of an activity referred to in Article 1, they must be registered in the companies’ register or professional register in accordance with the requirements laid down in the legal provisions of the Member State in which they are established;
…
7. where a company is involved, the directors, managers or persons empowered to enter into obligations on behalf of the company may not include any persons who are prohibited from performing such tasks under Royal Decree No 22 of 24 October 1934 referred to in subparagraph 6;
…
10. they must not have committed, during the five year period preceding the application for registration, any repeated or serious infringements relating to tax obligations …
11. they must not, at the time of the application for registration, be in arrears with the payment of taxes, contributions levied by the National Social Security Office or contributions levied by the Subsistence Protection Fund or on its behalf; …;
12. they must possess sufficient financial, administrative and technical resources to ensure fulfilment of their tax and social security obligations.’
14. Under Article 8 of the Royal Decree of 1978, an application to be registered as a contractor must be submitted to the Chairman of the ‘Registration Committee’ of the province in which the applicant has its principal place of business. In the case of applicants not established in Belgium, the committee of the province in which the construction site in question is situated is to be competent.
15. Article 10 of the Royal Decree of 1978 is in the following terms:
‘(1) For it not to be inadmissible, the following documents must be attached to the application:
…
3. from each applicant: a copy of the entry in the professional register on the conditions laid down in the legal provisions of the country in which it is established …;
…
5. from a [foreign] applicant: certificates issued by the competent authority in the Member State in which it is established confirming that it is not in arrears with the payment of taxes or social security contributions in that Member State.
…
2. The registration committee referred to in Section 4 below can require the applicant to provide further documents or information which it deems necessary to determine whether or not the conditions laid down in Article 2(1) have been fulfilled.
…’
16. Article 16 of the Royal Decree of 1978, in Section 4, entitled ‘Registration Committee’, provides:
‘(1) Each registration committee shall be composed of nine members appointed by Us in accordance with the procedures set out below:
1. three members who shall be officials appointed on the proposal of, respectively,
(a) the Minister for Social Security;
(b) the Minister for Finance;
(c) the Minister for Employment and Work;
2. three members shall be appointed on the proposal of the organisations representing employers in the construction industry;
3. three members shall be appointed on the proposal of the organisations representing employees in the construction industry; …
(2) Each committee shall be chaired by one of the officials referred to in Paragraph (1)(1)(a) and (b) appointed by Us for this purpose on the proposal of the two ministers referred to therein …’
The dispute in the main proceedings and the questions referred for a preliminary ruling
17. On 18 September 1990, Berlaymont 2000 was formed by the Régie des Bâtiments (Buildings Agency), a legal person established under Belgian public law, and three banking institutions. Berlaymont 2000’s main purpose was the renovation of the Berlaymont Building and the drawing up of the contract documents, work schedule and budget associated with that renovation. That building had been constructed on land acquired by the Belgian State in 1960 and occupied by the Commission’s services until 1991. It has again been occupied by the Commission’s services since the completion of the renovation works in 2004.
18. In 1994, Berlaymont 2000 invited tenders for the renovation works, the value of which was estimated at around BEF 1.4 billion. It drew up, to that end, special contract conditions and had a contract notice published in the Official Journal of the European Communities on 23 December 1994. Article 1.G of the special contract conditions stated: ‘As regards the works which form the subject-matter of the present contract, the contractor must be registered in Belgium’.
19. On 16 February 1995, Berlaymont 2000 published an amended notice in the Official Journal of the European Communities
which provided certain additional information regarding the registration requirements for tenderers.
20. That notice stated that:
‘As regards the works which form the subject-matter of the present contract, the contractor must furnish proof that it is regarded as having fulfilled its obligations relating to social security contributions, tax and VAT; this proof must be contained in a registration.
The application for registration is to be made in accordance with the Royal Decree of 3 October 1978.
As regards the validity of the tender (at the time it is submitted), it will be sufficient for a copy of the application for registration to be attached to the tender. No decision to award the contract will be taken before the competent authority has ruled on the application.’
21. The special conditions were also consequentially amended and state that ‘[i]n its tender, the tenderer will confirm that it has taken account of this amendment notice No 1, failing which its tender will be void’.
22. In order to participate in the tender proceedings, BPC and WIG formed a consortium named BPC-WIG (‘BPC-WIG’). On 16 March 1995, BPC‑WIG submitted a tender for the contract in question. WIG had attached to that tender two certificates issued by the German tax and social security authorities dated 4 August 1994 and 3 February 1995 according to which ‘the tax administration has no objection to WIG’s participation in a public works contract’ and ‘all social security contributions have always been paid punctually by WIG’. However neither WIG not BPC-WIG attached to their tender evidence of their registration or of their applications for registration as required, however,
by the Belgian legislation. Applications for registration were not submitted by those two entities until after the expiry of the time-limit for submitting tenders, that is to say by BPC-WIG on 28 April 1995 and by WIG on 3 May 1995 and the registrations were not granted until July 1995, which was after the contract was awarded. BPC, as a company incorporated under Belgian law, was already registered in Belgium.
23. By decision of 20 June 1995, Berlaymont 2000’s Board of Directors awarded the contract to another consortium.
24. BPC and WIG brought an action for annulment of that award decision before the Conseil d’État (Council of State). By judgment of 10 March 1999 a Chamber of the Council of State dismissed the proceedings before it on the grounds that WIG was not, at the time its tender was submitted, registered as a contractor in accordance with Article 15(7) of the Royal Decree of 22 April 1977 concerning public works, supply and service contacts, and held that at the date of the decision to award the contract, the applicants were ineligible for such award and rejected their claim.
25. Meanwhile, on 18 June 1996, BPC and WIG brought before the Tribunal de première instance de Bruxelles (Court of First Instance, Brussels) an action for damages for the loss caused by their exclusion from the contract. By judgment of 5 November 2002, that court dismissed the action as inadmissible. By application of 15 April 2003, BPC and WIG brought an appeal against that decision. By judgment of 14 March 2007, the Cour d’appel de Bruxelles (Court of Appeal, Brussels) upheld the decision at first instance.
26. The referring court has set out, in its decision, the reasoning followed by the Cour d’appel de Bruxelles. It points out that the applicants had not attached to their tender the applications for registration which were, however, necessary for WIG and BPC-WIG. The tax and social security certificates issued by the competent German authorities and attached to the tenders of WIG and BPC-WIG did not amount to registration but met a different production requirement, whilst also being necessary to obtain registration. Thus, the applicants failed to satisfy an essential requirement of the Belgian legislation and, therefore, their tender was null and void, which excluded them automatically and at the outset from the award procedure.
27. As regards the additional registration obligation, the Cour d’appel de Bruxelles accepted that the first paragraph of Article 24 of Directive 93/37 does not include failure to register among the grounds referred to therein for exclusion from participation in a contract. It accepted also that, under the second paragraph of Article 24 of that directive, where the contracting authority requires of the contractor proof that the cases referred to in points (e) and (f) of the first paragraph do not apply to it, the authority is to accept as sufficient evidence a certificate issued by the competent authority in the Member State concerned. However, that court considered that other provisions of Directive 93/37 led to the conclusion that the registration obligation, on pain of exclusion from the contract, was not prohibited.
28. It points out, in that regard, that the logical reason for the registration procedure was to enable the Belgian authorities to satisfy themselves that a contractor possessed sufficient financial, administrative and technical resources to ensure fulfilment of its tax and social security obligations. Consequently, the certificates emanating from the German authorities would not suffice to provide such a guarantee. The Cour d’appel de Bruxelles refers in that regard to Articles 26, 27 and 29(4) of Directive 93/37, which, in its view, confer on the contracting authority the right to require from contractors additional evidence and declarations. Consequently, that court considered that a reference to the Court of Justice for a preliminary ruling would be irrelevant.
29. Their appeal dismissed, BPC and WIG, on 28 September 2007, appealed on a point of law to the Cour de cassation (Court of Cassation).
30. Harbouring doubts as regards the compliance of the legislation in question in the main proceedings with the provisions of the EC Treaty in respect of the free movement of services and the provisions of Article 24 of Directive 93/37, the Cour de cassation decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘1. Is the obligation to hold a registration in order to be awarded a public contract in Belgium, such as that imposed by Article 1.G of the special conditions, applicable in the present case, contrary to the principle of freedom of movement within the European Union and to the second paragraph of Article 24 of Directive 93/37 … if it had to be interpreted as permitting the Belgian contracting authority to exclude from the tender procedure a foreign contractor who does not hold a registration but has produced equivalent certificates from his national authorities?
2. Is it contrary to the principle of freedom of movement within the European Union and to the second paragraph of Article 24 of Directive 93/37 to grant a Belgian contracting authority the power to require foreign tenderers to submit to a Belgian authority – the committee for the registration of contractors – for assessment of the validity of the certificates which have been issued to them by the tax and social security authorities of their State, attesting that they have fulfilled the obligations imposed on them relating to tax and social security?’
The questions referred for a preliminary ruling
Admissibility of the reference for a preliminary ruling
31. The Commission expresses doubts as regards the admissibility of the request for a preliminary ruling, because the referring court confines itself, in the order for reference, to reproducing the reasoning in the judgment of the Cour d’appel de Bruxelles, does not define sufficiently the factual and legislative context of the dispute in the main proceedings and does not give sufficient explanation of the reasons for selecting the provisions of the law of the Union, the interpretation of which it seeks.
32. Those doubts are unfounded.
33. First of all, the referring court cannot be accused of merely repeating, in its decision, the judgment of the Cour d’appel de Bruxelles which forms the subject matter of the appeal on a point of law before it. The referring court expresses, by such repeat, its doubts as regards the compliance of the conclusions reached in that judgment with the relevant provisions of the law of the Union, namely those of the Treaty in respect of free movement of services and those of Article 24 of Directive 93/37.
34. As the Advocate General noted in paragraph 33 of her Opinion, the order for reference explains sufficiently what is at issue in the main proceedings and the factual and legislative context in which the questions referred arose, matters which have, moreover, enabled the parties concerned, for the purposes of the second paragraph of Article 23 of the Statute of the Court of Justice of the European Union, properly to submit their observations.
35. Finally, the relationship between the context thus described of what is at issue in the main proceedings and the provisions of Union law, the interpretation of which is sought, is abundantly clear from the contents of the Court file and needs no particular explanation.
36. Therefore, the information thus provided is sufficient to meet the requirements of the Court’s settled case-law (see, to that effect, Case C‑42/07 Liga Portuguesa de Futebol Profissional and Bwin International [2009] ECR I‑0000, paragraph 40 and the case‑law cited) and to enable the Court to provide helpful replies to the referring court. Accordingly, the reference for a preliminary ruling is admissible.
The first question
37. By this question, the national court is asking, in essence, whether the general principles of the law of the Union on public procurement and the second paragraph of Article 24 of Directive 93/37 are to be interpreted as precluding national legislation, such as that at issue in the main proceedings, which imposes on a contractor established in another Member State an obligation to hold a registration, in the contracting authority’s Member State, in order to be awarded a contract in the latter Member State, notwithstanding the fact that the contractor has produced certificates issued by the authorities of its Member State of establishment which attest, in particular, that it has fulfilled, in that State, its obligations relating to the payment of social security contributions and taxes.
38. At the outset, it is important to make clear that the registration at issue in the main proceedings is not covered by the provisions of Article 25 or 29 of Directive 93/37.
39. It is apparent, indeed, from the contents of the file submitted to the Court that the objective of that registration obligation is to establish contractors’ professional qualities, for the purposes of the first paragraph of Article 24 of Directive 93/37, more particularly as regards their position in respect of the payment of social security contributions and taxes.
40. It is appropriate to point out, first, that the fact that a contractor established in another Member State has produced certificates issued by the competent authorities of that State is not sufficient to confirm, conclusively, that it has fulfilled its obligations in that regard. Indeed, first, points (e) and (f) of the first paragraph of Article 24 of Directive 93/37 provide that the contractor must have fulfilled its social security and tax obligations in the contracting authority’s Member State also. Secondly, by referring to certificates issued by the competent authority in the Member State concerned, the second indent in the second paragraph of Article 24 permits a separate check on such a contractor in the Member State in which the public contract in question is to be awarded.
41. It is conceivable that the contractor in question may have carried on an economic activity in the contracting authority’s Member State capable of giving rise to debts for social security contributions and tax in that Member State. Such debts could arise not only from economic activities carried on in the course of performing public contracts, but also from activities outside that framework. In addition, even if that contractor has not carried on any economic activity in the contracting authority’s Member State, it is legitimate for that State’s authorities to wish to be able to satisfy themselves of that fact.
42. Consequently, national legislation cannot be regarded as being contrary to the rules of the Union solely because it lays down a registration obligation for the purposes of such a check also for contractors established in a Member State other than that in which the public contract is to be awarded.
43. It is appropriate to point out, secondly, that according to the Court’s settled case‑law, the first paragraph of Article 24 of Directive 93/37 lists, exhaustively, the grounds capable of justifying the exclusion of a contractor from participation in a contract which relate solely to its professional qualities. Moreover, the Court also added that Member States have the right to provide, in addition to the grounds for exclusion expressly referred to in that provision, for grounds for exclusion designed to ensure observance of the principles of equal treatment and transparency (see, to that effect, Case C‑213/07 Michaniki
[2008] ECR I‑9999, paragraphs 43, 44 and 47, and Case C‑538/07 Assitur
[2009] ECR I‑4219, paragraphs 20 and 21).
44. A registration obligation such as that in question in the main proceedings cannot be regarded as an additional ground for exclusion, in addition to those exhaustively listed in the first paragraph of Article 24 of Directive 93/37, if it is designed as a means of implementing that provision, solely to check the evidence that a contractor wishing to participate in a public contract does not fall fowl of one of those grounds for exclusion, particularly those relating to the payment of social security contributions and taxes.
45. In this case, for the purposes of the registration in question, commonly referred to as ‘registration for tax purposes’ in the documents in the Court file, the contractor concerned must submit, to the authority competent for that purpose, an application, accompanied by the certificates provided for in the second paragraph of Article 24 of Directive 93/37 and required by the applicable national legislation which lays down the corresponding grounds for exclusion.
46. Thus, a contractor established in another Member State must produce to that authority the certificates issued by the authorities of its Member State of establishment which it should usually submit, under the above provision of Directive 93/37, to the contracting authority concerned. Also, if such a contractor had already carried on an economic activity in the contracting authority’s Member State, it should be able to submit the certificates issued by the competent authorities of that State or else, if it had not carried on such an activity, be in a position to declare that fact. The authority in question must, for its part, certify the absence of grounds for exclusion by granting a registration certificate which will, subsequently, have to be submitted to the contracting authority for the purposes of participation in the public contract in question.
47. Under the second paragraph of Article 24 of Directive 93/37, where the contracting authority requires of the contractor proof that the cases referred to in points (e) and (f) of that provision do not apply to it, the authority is to accept as sufficient evidence a certificate issued by the competent authority in the Member State concerned.
48. That provision does not preclude a check being made, before the tenders are opened, of the certificates submitted by a contractor or of the absence, in its case, of grounds for exclusion in general.
49. None the less, that check must be confined to the professional qualities of contractors, for the purposes of the first paragraph of Article 24 of Directive 93/37, particularly as regards the fulfilment of their obligations in respect of social security contributions and taxes. In addition, as the Advocate General points out in paragraph 52 of her Opinion, it may not complicate or delay the participation of the contractor concerned in the procedure for the award of the public contract or give rise to excessive
administrative charges.
50. It is for the referring court to determine whether the registration obligation in question in the main proceedings satisfies those criteria.
51. The referring court must, in particular, examine whether the requirements laid down in Article 2(1)(7) of the Royal Decree of 1978, under which a company is excluded from participating in a public contract if among its directors, managers or persons empowered to enter into obligations on its behalf are persons who are prohibited from performing such tasks under the national legislation, and in Article 2(1)(12) of the Royal Decree of 1978, under which the participation of a contractor in a procedure for the award of a public contract is precluded if it does not possess ‘sufficient financial, administrative and technical resources to ensure fulfilment of [its] tax and social security obligations’, on which points the contents of the court file do not provide sufficient materials for their determination, may be authorised by the first paragraph of Article 24 of Directive 93/37.
52. It is, however, apparent from the contents of the Court file that the mere production, to the contracting authority, of the application for registration accompanied by the submission of the tender constituted sufficient compliance, in the case in the main proceedings, to admit the contractors concerned to participate in the contract at issue, since the decision to award the contract could not be made before the conclusion of the registration procedure.
53. In view of the foregoing, the reply to the first question is that the law of the Union is to be interpreted as not precluding national legislation which imposes on a contractor established in another Member State, in order to be awarded a contract in the contracting authority’s Member State, an obligation to hold a registration, in the latter Member State, certifying that none of the grounds for exclusion listed in the first paragraph of Article 24 of Directive 93/37 applies to the contractor, provided that such obligation does not hinder or delay the contractor’s participation in the public contract in question or give rise to excessive administrative charges, and provided that its sole objective is to check the professional qualities of the contractor concerned, for the purposes of that provision.
The second question
54. By this question, the national court is asking, in essence, whether the general principles of the law of the Union on public procurement and the second paragraph of Article 24 of Directive 93/37 are to be interpreted as precluding national legislation which provides for a check, by an authority such as that in question in the main proceedings, of certificates issued by the tax and social security authorities of other Member States attesting that contractors established in those Member States have fulfilled their obligations in the areas concerned.
55. In that regard, it is appropriate to point out that the provisions of Directive 93/37 do not, as a matter of principle, preclude national law from entrusting a check of the absence of grounds for exclusion, for the purposes of the first paragraph of Article 24 of that directive, to an authority other than the contracting authority.
56. As the Advocate General points out in paragraph 69 of her Opinion, such a check, prior to the opening of tenders, may be appropriate for the purposes of the proper conduct of a public contract. Indeed, in view of the possibly insufficient technical expertise and limited organisational capacities of certain contracting authorities, such as, for example, a local authority of modest size or an organisation with few staff, it may be appropriate to entrust to a specialist authority, with powers at the national or local level, the administrative treatment and the centralised checking of the evidence concerning the professional qualities of the candidates for different public contracts.
57. It is appropriate to add that the Court, in its judgment in Michaniki, has already accepted, under well defined conditions, the possibility that an authority other than the contracting authority may adopt a decision leading to the exclusion of a contractor from a procedure for the award of a public works contract. In that regard, it is irrelevant that the subject matter of the case which led to that judgment was not a ground for exclusion under Directive 93/37, but a ground for exclusion established in addition to those defined by that directive and intended to ensure compliance with the principles of equal treatment and transparency.
58. The Court must also consider whether the composition and powers of the authority to which, under the national legislation at issue in the main proceedings, that check is entrusted can be reconciled with the objective of ensuring compliance with the law of the Union on public procurement.
59. In that regard, it is clear, first, from the contents of the Court file that, under that legislation, the competent authorities in respect of registration, ‘Registration Committees’, are established at provincial level with tripartite composition. Under Article 16 of the Royal Decree of 1978, they are composed of three officials appointed by the public authorities, one of whom assumes the chairmanship, and six persons, three of whom are appointed on the proposal of the organisations representing employers and three on the proposal of the organisations representing workers in the construction sector in the province in question.
60. The majority on those authorities is composed of persons representing private interests and nothing in the Court file indicates that their participation in them is purely consultative.
61. Such authorities, in view of their composition, cannot be regarded as impartial and neutral. Indeed, that majority participation of representatives of private interests could lead those representatives to obstruct the access of other operators to the market concerned and, in any event, because such operators are obliged to submit to the determination of their potential competitors as regards their personal and professional qualities, such an authority involves a situation of unequal conditions of competition and lack of objectivity and impartiality, inconsistent with a system of undistorted competition, such as that laid down by the law of the Union (see, by analogy, Case C‑49/07 MOTOE [2008] ECR I‑4863, paragraphs 51 and 52 and the case‑law cited, and Case C‑169/07 Hartlauer [2009] ECR I‑1721, paragraph 51 and case‑law cited).
62. It is appropriate, secondly, to draw attention to the fact that, as seems to be clear from the referring court’s question, the legislation at issue in the main proceedings confers on registration committees power to examine the validity of the certificates issued by the competent authority of the Member State concerned as regards contractors’ fulfilment of their social security and tax obligations.
63. The Royal Decree of 1978 contains no provision expressly conferring such power on registration committees, and the scope of such power is not set out in the referring court’s request. If that power must involve the exercise of a check as regards the substance of the requirements which underlie the issue of certificates by the competent authorities of the Member States concerned, it would be clearly incompatible with the first paragraph of Article 24 of Directive 93/37, which does not provide for such a ground for exclusion, and with the second indent of the second paragraph of that article, which unequivocally requires the acceptance of those certificates as sufficient evidence of the fulfilment of contractors’ social security and tax obligations. Moreover, a ground for exclusion founded on a check as regards the substance of those certificates would not be justified on the basis of the result reached by the Court in Michaniki .
64. Therefore, as the Advocate General points out in paragraphs 82 to 84 of her Opinion, the authority responsible for examining those certificates has no discretion of its own as regards their substance and must confine itself to a summary check of their formal elements. It may thus check only the authenticity of the certificates, whether they were established on a sufficiently recent date and whether the authority which issued them manifestly lacked the power to do so.
65. It is for the referring court to determine the situation of the appellants in the main proceedings in the light of the rulings on interpretation set forth above. However, it does not appear that the composition of the Registration Committee and the extent of the check it carried out could have affected that situation, since, as is clear from the contents of the Court file, the appellants obtained their registration without difficulty. The reason why they were not admitted to participate in the contract in question in the main proceedings is based on the fact that their respective applications for registration had been submitted late, that is to say after the expiry of the time-limit for submitting tenders, in circumstances in which the requirement to hold a registration is not regarded, in itself, as being contrary to the law of the Union.
66. In the light of the foregoing considerations, the reply to the second question is that the law of the Union is to be interpreted as precluding national legislation under which the checking of the certificates issued to a contractor of another Member State by the tax and social security authorities of that Member State is entrusted to an authority other than the contracting authority where:
– the majority on that other authority is composed of persons appointed by the employers’ and workers’ organisations in the construction sector of the province in which the public contract in question is to be awarded, and
– that power extends to a check on the substance of the validity of those certificates.
Costs
67. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
Operative part
On those grounds, the Court (Third Chamber) hereby rules:
1. The law of the Union is to be interpreted as not precluding national legislation which imposes on a contractor established in another Member State, in order to be awarded a contract in the contracting authority’s Member State, an obligation to hold a registration, in the latter Member State, certifying that none of the grounds for exclusion listed in the first paragraph of Article 24 of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts applies to the contractor, provided that such obligation does not hinder or delay the contractor’s participation in the public contract in question or give rise to excessive administrative charges, and provided that its sole objective is to check the professional qualities of the contractor concerned, for the purposes of that provision.
2. The law of the Union is to be interpreted as precluding national legislation under which the checking of the certificates issued to a contractor of another Member State by the tax and social security authorities of that Member State is entrusted to an authority other than the contracting authority where:
– the majority on that other authority is composed of persons appointed by the employers’ and workers’ organisations in the construction sector of the province in which the public contract in question is to be awarded, and
– that power extends to a check on the substance of the validity of those certificates.