Pippo Pizzo v CRGT Srl.
Date: 2016-06-02
23


The Court has held that EU law does not require that, in order to be classified as an economic operator qualifying for tendering, a person wishing to enter into a contract with a contracting authority must be capable of direct performance using his own resources (see, to that effect, judgment of 23 December 2009 in CoNISMa, C‑305/08, EU:C:2009:807, paragraph 41).
24


The Court has held, in that respect, that Article 47(2) and Article 48(3) of Directive 2004/18 does not lay down any general prohibition regarding a candidate or tenderer’s reliance on the capacities of one or more third-party entities in addition to its own capacities in order to fulfil the criteria set by a contracting authority (see judgment of 10 October 2013 in Swm Costruzioni 2 and Mannocchi Luigino, C‑94/12, EU:C:2013:646, paragraph 30).
25


According to that same case-law, those provisions recognise the right of every economic operator to rely, for a particular contract, upon the capacities of other entities, ‘regardless of the nature of the links which it has with them’, provided that it proves to the contracting authority that it will have at its disposal the resources necessary for the performance of the contract (see judgment of 14 January 2016 in Ostas celtnieks, C‑234/14, EU:C:2016:6, paragraph 23).
26


It must therefore be held that Directive 2004/18 permits the combining of the capacities of more than one economic operator for the purpose of satisfying the minimum capacity requirements set by the contracting authority, provided that the candidate or tenderer relying on the capacities of one or more other entities proves to that authority that it will actually have at its disposal the resources of those entities necessary for the execution of the contract (see judgment of 10 October 2013 in Swm Costruzioni 2 and Mannocchi Luigino, C‑94/12, EU:C:2013:646, paragraph 33).
27


Such an interpretation is consistent with the objective pursued by the directives in this area of attaining the widest possible opening-up of public contracts to competition to the benefit not only of economic operators but also contracting authorities (see, to that effect, judgment of 23 December 2009 in CoNISMa, C‑305/08, EU:C:2009:807, paragraph 37 and the case-law cited). In addition, that interpretation also facilitates the involvement of small- and medium-sized undertakings in the contracts procurement market, an aim also pursued by Directive 2004/18, as stated in recital 32 thereof (see judgment of 10 October 2013 in Swm Costruzioni 2 and Mannocchi Luigino, C‑94/12, EU:C:2013:646, paragraph 34).
28


The Court has, however, pointed out that there may be works the special requirements of which necessitate a certain capacity which cannot be obtained by combining the capacities of more than one operator, which, individually, would be inadequate. It has thus acknowledged that, in such circumstances, the contracting authority would be justified in requiring that the minimum capacity level concerned be achieved by a single economic operator or by relying on a limited number of economic operators as long as that requirement is related and proportionate to the subject matter of the contract at issue. The Court has, however, stated that since those circumstances represent an exception, the requirements in question cannot be made general rules under national law (see, to that effect, judgment of 10 October 2013 in Swm Costruzioni 2 and Mannocchi Luigino, C‑94/12, EU:C:2013:646, paragraphs 35 and 36).
32


Although the case-law of the Court requires Member States to refrain, during the period prescribed for transposition of a directive, from taking any measures liable seriously to compromise the result prescribed by that directive (see judgment of 18 December 1997 in Inter-Environnement Wallonie, C‑129/96, EU:C:1997:628, paragraph 45), that case-law does not make it possible to impose on a tenderer, before that period has expired, constraints which do not derive from EU law as interpreted by the case-law of the Court.
36


In that regard, it must be borne in mind, first, that the principle of equal treatment requires tenderers to be afforded equality of opportunity when formulating their tenders, which therefore implies that the tenders of all tenderers must be subject to the same conditions. Second, the obligation of transparency, which is its corollary, is intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. That obligation implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or specifications so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, second, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the contract in question (see, to that effect, judgment of 6 November 2014 in Cartiera dell’Adda, C‑42/13, EU:C:2014:2345, paragraph 44 and the case-law cited).
37


The Court has also held that the principles of transparency and equal treatment which govern all procedures for the award of public contracts require the substantive and procedural conditions concerning participation in a contract to be clearly defined in advance and made public, in particular the obligations of tenderers, in order that those tenderers may know exactly the procedural requirements and be sure that the same requirements apply to all candidates (see, to that effect, judgment of 9 February 2006 in La Cascina and Others, C‑226/04 and C‑228/04, EU:C:2006:94, paragraph 32).
39


Consequently, in accordance with the settled case-law of the Court, pursuant to Article 2 of Directive 2004/18, a contracting authority must comply strictly with the criteria which it has itself established (see, inter alia, judgment of 10 October 2013 in Manova, C‑336/12, EU:C:2013:647, paragraph 40, and judgment of 6 November 2014 in Cartiera dell’Adda, C‑42/13, EU:C:2014:2345, paragraphs 42 and 43).
49


According to paragraph 46 of the judgment of the Court of 6 November 2014 in Cartiera dell’Adda (C‑42/13, EU:C:2014:2345), the contracting authority may not accept any rectification of omissions which, as expressly provided for in the contract documentation, must result in the exclusion of the bid. The Court stated, in paragraph 48 of that judgment, that the obligation concerned was clearly laid down in the contract documentation, on pain of exclusion.
51


In the light of all of those considerations, the answer to the second question is that the principle of equal treatment and the obligation of transparency must be interpreted as precluding an economic operator from being excluded from a procedure for the award of a public contract as a result of that economic operator’s non-compliance with an obligation which does not expressly arise from the documents relating to that procedure or out of the national law in force, but from an interpretation of that law and those documents and from the incorporation of provisions into those documents by the national authorities or administrative courts. Accordingly, the principles of equal treatment and of proportionality must be interpreted as not precluding an economic operator from being allowed to regularise its position and comply with that obligation within a period of time set by the contracting authority.