Keywords

Summary



Keywords

1. Approximation of laws – Procedures for the award of public works contracts – Directive 93/37 – Grounds for exclusion from participation in a contract

(Council Directive 93/37, Art. 24, first para.)

2. Approximation of laws – Procedures for the award of public works contracts – Directive 93/37 – Grounds for exclusion from participation in a contract

(Council Directive 93/37, Art. 24, first para.)

Summary

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 Directive 93/37 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.

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. 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.

Thus, a registration obligation 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.

(see paras 40, 44, 53, operative part 1)

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.

While, the provisions of Directive 93/37 concerning the coordination of procedures for the award of public works contracts 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, the composition and powers of such authority must, however, be reconcilable with the objective of ensuring compliance with the law of the European Union on public procurement.

(see paras 55, 58, 66, operative part 2)