Provisional text

ORDER OF THE COURT (Eighth Chamber)

10 January 2023 ( )

(Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Public procurement of service, supply and works contracts – Directive 2014/24/EU – Conduct of the procedure – Choice of participants and award of contracts – Article 63 – Economic operator relying on the capacities of another entity in order to meet the requirements of the contracting authority – Obligation of that economic operator to submit the qualification documents of a subcontractor after the tender has been awarded – Incompatibility)

In Case C‑469/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal), made by decision of 23 June 2022, received at the Court on 13 July 2022, in the proceedings

Ambisig – Ambiente e Sistemas de Informação Geográfica SA

v

Fundação do Desporto,

ANO – Sistemas de Informática e Serviços Lda,

Link Consulting – Tecnologias de Informação SA,

THE COURT (Eighth Chamber),

composed of M. Safjan, President of the Chamber, N. Piçarra and M. Gavalec (Rapporteur), Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to rule by reasoned order, pursuant to Article 99 of the Rules of Procedure of the Court of Justice,

makes the following

Order

1 This request for a preliminary ruling concerns the interpretation of Article 63 of 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).

2 The request has been made in proceedings between Ambisig – Ambiente e Sistemas de Informação Geográfica SA (‘Ambisig’) and the Fundação do Desporto, concerning its decision to exclude Ambisig from participating in a public procurement procedure for the award of a service contract and to award the contract concerned to Link Consulting – Tecnologias de Informação SA (‘Link’).

Legal context

European Union law

3 Recital 84 of Directive 2014/24 states:

‘Many economic operators, and not least [small and medium-sized enterprises (SMEs)], find that a major obstacle to their participation in public procurement consists in administrative burdens deriving from the need to produce a substantial number of certificates or other documents related to exclusion and selection criteria. Limiting such requirements, for example through use of a European Single Procurement Document (ESPD) consisting of an updated self-declaration, could result in considerable simplification for the benefit of both contracting authorities and economic operators.

The tenderer to which it has been decided to award the contract should, however, be required to provide the relevant evidence and contracting authorities should not conclude contracts with tenderers unable to do so. Contracting authorities should also be entitled to request all or part of the supporting documents at any moment where they consider this to be necessary in view of the proper conduct of the procedure. This might in particular be the case in two-stage procedures – restricted procedures, competitive procedures with negotiation, competitive dialogues and innovation partnerships – in which the contracting authorities make use of the possibility to limit the number of candidates invited to submit a tender. Requiring submission of the supporting documents at the moment of selection of the candidates to be invited could be justified to avoid that contracting authorities invite candidates which later prove unable to submit the supporting documents at the award stage, depriving otherwise qualified candidates from participation.

It should be set out explicitly that the ESPD should also provide the relevant information in respect of entities on whose capacities an economic operator relies, so that the verification of the information regarding such entities can be carried out together with and on the same conditions as the verification in respect of the main economic operator.’

4 Article 57 of that directive lists the various grounds for exclusion of an economic operator from a public procurement procedure.

5 Article 59 of Directive 2014/24, entitled ‘European Single Procurement Document’, provides:

‘1. At the time of submission of requests to participate or of tenders, contracting authorities shall accept the [ESPD], consisting of an updated self-declaration as preliminary evidence in replacement of certificates issued by public authorities or third parties confirming that the relevant economic operator fulfils the following conditions:

(a) it is not in one of the situations referred to in Article 57 in which economic operators shall or may be excluded;

(b) it meets the relevant selection criteria that have been set out pursuant to Article 58;

(c) where applicable, it fulfils the objective rules and criteria that have been set out pursuant to Article 65.

Where the economic operator relies on the capacities of other entities pursuant to Article 63, the ESPD shall also contain the information referred to in the first subparagraph of this paragraph in respect of such entities.

The ESPD shall consist of a formal statement by the economic operator that the relevant ground for exclusion does not apply and/or that the relevant selection criterion is fulfilled and shall provide the relevant information as required by the contracting authority. The ESPD shall further identify the public authority or third party responsible for establishing the supporting documents and contain a formal statement to the effect that the economic operator will be able, upon request and without delay, to provide those supporting documents.

…

4. A contracting authority may ask tenderers and candidates at any moment during the procedure to submit all or part of the supporting documents where this is necessary to ensure the proper conduct of the procedure.

Before awarding the contract, the contracting authority shall, except in respect of contracts based on framework agreements where such contracts are concluded in accordance with Article 33(3) or point (a) of Article 33(4), require the tenderer to which it has decided to award the contract to submit up-to-date supporting documents in accordance with Article 60 and, where appropriate, Article 62. The contracting authority may invite economic operators to supplement or clarify the certificates received pursuant to Articles 60 and 62.

5. Notwithstanding paragraph 4, economic operators shall not be required to submit supporting documents or other documentary evidence where and in so far as the contracting authority has the possibility of obtaining the certificates or the relevant information directly by accessing a national database in any Member State that is available free of charge, such as a national procurement register, a virtual company dossier, an electronic document storage system or a prequalification system.

…’

6 Article 60 of Directive 2014/24, entitled ‘Means of proof’, provides, in paragraph 1:

‘Contracting authorities may require the certificates, statements and other means of proof referred to in paragraphs 2, 3 and 4 of this Article and Annex XII as evidence for the absence of grounds for exclusion as referred to in Article 57 and for the fulfilment of the selection criteria in accordance with Article 58.

Contracting authorities shall not require means of proof other than those referred to in this Article and in Article 62. In respect of Article 63, economic operators may rely on any appropriate means to prove to the contracting authority that they will have the necessary resources at their disposal.’

7 Article 63 of Directive 2014/24, entitled ‘Reliance on the capacities of other entities’, is worded as follows:

‘1. With regard to criteria relating to economic and financial standing as set out pursuant to Article 58(3), and to criteria relating to technical and professional ability as set out pursuant to Article 58(4), an economic operator may, where appropriate and for a particular contract, rely on the capacities of other entities, regardless of the legal nature of the links which it has with them. With regard to criteria relating to the educational and professional qualifications as set out in point (f) of Annex XII Part II, or to the relevant professional experience, economic operators may however only rely on the capacities of other entities where the latter will perform the works or services for which these capacities are required. Where an economic operator wants to rely on the capacities of other entities, it shall 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.

The contracting authority shall, in accordance with Articles 59, 60 and 61, verify whether the entities on whose capacity the economic operator intends to rely fulfil the relevant selection criteria and whether there are grounds for exclusion pursuant to Article 57. The contracting authority shall require that the economic operator replaces an entity which does not meet a relevant selection criterion, or in respect of which there are compulsory grounds for exclusion. The contracting authority may require or may be required by the Member State to require that the economic operator substitutes an entity in respect of which there are non-compulsory grounds for exclusion.

Where an economic operator relies on the capacities of other entities with regard to criteria relating to economic and financial standing, the contracting authority may require that the economic operator and those entities be jointly liable for the execution of the contract.

Under the same conditions, a group of economic operators as referred to in Article 19(2) may rely on the capacities of participants in the group or of other entities.

2. In the case of works contracts, service contracts and siting or installation operations in the context of a supply contract, contracting authorities may require that certain critical tasks be performed directly by the tenderer itself or, where the tender is submitted by a group of economic operators as referred to in Article 19(2), by a participant in that group.’

Portuguese law

8 It is apparent from the order for reference that, under Article 77(2)(a) and (c) of the Código dos Contratos Públicos (Public Procurement Code), read in conjunction with Articles 81, 92 and 93 of that code, when an economic operator relies on the capacities of a third party for the performance of relevant services and unless the contract notice provides otherwise, the qualification documents of that third party and the declaration of commitment it has made must be required only after the relevant public contract has been awarded. Consequently, it is only in the context of a restricted procedure with prior selection that such a requirement is necessary at the time when the application is submitted, pursuant to Article 168(4) of the code.

The dispute in the main proceedings and the question referred for a preliminary ruling

9 On the basis of the written observations submitted by Ambisig in support of its appeal, as reproduced in the request for a preliminary ruling, it appears that the Fundação do Desporto organised a public procurement procedure for the award of service contracts. The contract concerned was awarded to Link.

10 Ambisig lodged an administrative-law action in connection with public procurement with the Tribunal Administrativo e Fiscal de Leiria (Administrative and Tax Court, Leiria, Portugal) challenging its exclusion from participation in the public procurement procedure and the award of that contract to Link.

11 Ambisig complained, in essence, that the Fundação do Desporto considered that its tender had been submitted by a group of tenderers, even though it intended to use a subcontractor and that, for that purpose, it was not required to include in its tender a declaration of commitment made by that subcontractor. In that connection, according to Ambisig, the application by analogy of Article 168(4) of the Public Procurement Code, which transposes Article 63 of Directive 2014/24 into Portuguese law, to the procedure at issue in the main proceedings is unlawful, since the exclusion of Ambisig from the tender procedure, pursuant to Article 70(2)(a) and (b) of the Public Procurement Code, constitutes an error of law.

12 By judgment of 28 September 2021, the Tribunal Administrativo e Fiscal de Leiria (Administrative and Tax Court, Leiria) dismissed Ambisig’s action. That court held that, admittedly, the requirement for commitments by third parties was not expressly provided for in the contract notice and it was a condition of performance of the contract which could be satisfied following the award of the tender. Nevertheless, the reference made by Ambisig to the subcontracting part of the services concerned came within Clause 12 of the tender specifications, which stipulated that subcontracting was subject to prior authorisation by the contracting authority. Ambisig’s failure to submit that type of prior authorisation was grounds for its exclusion from the public procurement procedure. The exclusion also resulted from the application by analogy of Article 168(4) of the Public Procurement Code.

13 That judgment was upheld on appeal by the judgment of the Tribunal Central Administrativo Sul (Central Administrative Court – Southern Division, Portugal) of 3 February 2022. That court observed that subcontracting was subject to prior authorisation by the contracting authority, pursuant to Clause 12 of the tender specifications, and that the submission by the economic operator concerned of its potential subcontractor’s qualification documents was an indispensable prerequisite for such authorisation to be granted.

14 Ambisig, which considers that judgment incorrect on three grounds, brought an appeal against the judgment before the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal). First, the submission of qualification documents of the third party concerned cannot be required, given that such requirement was not apparent from the contract notice or under the Public Procurement Code; Article 168(4) of that code was not applicable to the dispute in the main proceedings. Second, Clause 12 of the tender specifications was not applicable at the pre-contract stage of the public procurement procedure at issue. Third, Article 63 of Directive 2014/24 did not require the tenderer to include the declaration of commitment made by its subcontractors upon submission of its tender.

15 The Supremo Tribunal Administrativo (Supreme Administrative Court), which refers to the facts as established in the judgment of 3 February 2022 and the statement of which is regarded as having been reproduced in its entirety, pursuant to Article 663(6) of the Código de Processo Civil (Code of Civil Procedure), takes the view that Ambisig’s first two arguments set out in the previous paragraph are well founded.

16 The question that remains to be decided is whether, when, in the context of a public procurement procedure for the award of a service contract, a tenderer presents a third party on whose technical capacities that tenderer intends to rely in order to perform part of the contract, Article 63 of Directive 2014/24 requires the tenderer to submit, together with its tender, the qualification documents of the third party and the declaration made by that third party that it will undertake to perform that part of that contract.

17 In those circumstances, the Supremo Tribunal Administrativo (Supreme Administrative Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Is it consistent with EU law, in particular with Article 63 of Directive [2014/24], for national law to provide that, in public tender procedures where the capacities of other entities are used in order to perform the contract, the subcontractor’s qualification documents and the commitment given by the subcontractor must be required only after the tender has been awarded?’

Consideration of the application for an expedited procedure

18 The referring court has requested that the present reference for a preliminary ruling be dealt with under the expedited procedure under Article 105(1) of the Rules of Procedure of the Court of Justice.

19 However, in view of the decision of the Court to rule by reasoned order in accordance with Article 99 of the Rules of Procedure, there is no need to adjudicate on that request (order of 17 May 2022, Estaleiros Navais de Peniche, C‑787/21, not published, EU:C:2022:414, paragraph 17 and the case-law cited).

Consideration of the question referred

20 Pursuant to Article 99 of the Rules of Procedure, where the answer to a question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law or admits of no reasonable doubt, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, give its decision by reasoned order.

21 That provision should be applied in the present case.

22 By its question, the referring court asks, in essence, whether Article 63 of Directive 2014/24, read in conjunction with recital 84 of that directive, must be interpreted as precluding national legislation under which an economic operator which intends to use the capacities of another entity in order to perform a public contract is required to submit the qualification documents of that entity and the declaration of commitment it has made only after the contract in question has been awarded.

23 In that regard, it must be noted that Article 63(1) of Directive 2014/24 provides for the right of an economic operator to rely, for a particular contract, on the capacities of other entities, regardless of the legal nature of the links which it has with them, with a view to satisfying both the criteria relating to economic and financial standing set out in Article 58(3) of that directive and the criteria relating to technical and professional ability referred to in Article 58(4) of that directive (see, to that effect, judgments of 10 October 2013, Swm Costruzioni 2 and Mannocchi Luigino, C‑94/12, EU:C:2013:646, paragraphs 29 and 33, and of 7 September 2021, Klaipėdos regiono atliekų tvarkymo centras, C‑927/19, EU:C:2021:700, paragraph 150).

24 An economic operator wishing to exercise its right may, pursuant to the second subparagraph of Article 60(1) of Directive 2014/24, rely on any appropriate means to prove to the contracting authority that they will have the necessary resources at their disposal. In that connection, the third sentence of Article 63(1) of that directive sets out, by way of example, the possibility for that economic operator to produce a commitment by those entities to that effect. An economic operator may also, in accordance with the second and third subparagraphs of Article 59(1) of that directive, read in conjunction with the third paragraph of recital 84 thereof, send an ESPD to the contracting authority when submitting its request to participate or its tender, stating, inter alia, first, that neither itself nor the entities on whose capacities it intends to rely are in one of the situations referred to in Article 57 of that directive which must or may lead to an economic operator’s exclusion and, second, that the selection criteria are fulfilled. In any event, any economic operator wishing to rely on the capacities of other entities must prove to the contracting authority that it will have at its disposal the resources necessary to satisfy the selection criteria set out in Article 58 of Directive 2014/24.

25 It is then, under the second subparagraph of Article 63(1) of Directive 2014/24, for the contracting authority to ascertain, first, whether, in accordance with Articles 59 to 61 of that directive, the entities on whose capacities the economic operator intends to rely fulfil the relevant selection criteria and, second, whether there are grounds for exclusion, as set out in Article 57 of that directive, in respect of those entities.

26 It must be possible for the contracting authority to carry out those verifications before awarding the contract. In that connection, recital 84 of Directive 2014/24, which clarifies the scope of Article 63 of that directive, states expressly, in its second and third paragraphs, that requiring the supporting documents to be submitted at the time of selection of the candidates to be invited could be justified in order to avoid contracting authorities inviting candidates which later prove unable to submit the supporting documents at the award stage, depriving otherwise qualified candidates from participation.

27 It thus follows from the foregoing considerations that Article 63 of Directive 2014/24, read in conjunction with Article 59 and recital 84 of that directive, must be interpreted as precluding national legislation under which an economic operator which intends to use the capacities of another entity in order to perform the contract is required to submit the qualification documents of that entity and the declaration of commitment it has made only after the contract in question has been awarded.

Costs

28 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.

On those grounds, the Court (Eighth Chamber) hereby rules:

Article 63 of 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, read in conjunction with Article 59 and recital 84 of that directive,

must be interpreted as precluding national legislation under which an economic operator which intends to use the capacities of another entity in order to perform the contract is required to submit the qualification documents of that entity and the declaration of commitment it has made only after the contract in question has been awarded.

[Signatures]