Wrocław - Miasto na prawach powiatu v Minister Infrastruktury i Rozwoju.
Date: 2016-07-14
26


Moreover, the referring court questions whether a stipulation such as that at issue in the main proceedings, by restricting the possibility for small- and medium-sized enterprises (SMEs) to participate in the performance of works in the context of a public contract, is not capable of infringing the principle of the opening of public contracts to undistorted competition, since that opening concerns all enterprises, whatever their size, it seeming that particular attention should be paid in that regard to SMEs. That court refers, in that regard, to the Court’s case-law, in particular to the judgment of 10 October 2013 in Swm Costruzioni 2 and Mannocchi Luigino (C‑94/12, EU:C:2013:646, paragraph 33).
31


Pursuant to the first paragraph of Article 25 of Directive 2004/18, the contracting authority may ask or may be required by a Member State to ask the tenderer to indicate in his tender any share of the contract he may intend to subcontract to third parties and any proposed subcontractors.
32


As the Court stated in paragraph 31 of the judgment of 10 October 2013 in Swm Costruzioni 2 and Mannocchi Luigino (C‑94/12, EU:C:2013:646), by that article, Directive 2004/18 provides for the use of subcontractors without imposing any limit in that regard.
33


On the contrary, to the extent that Article 48(3) of that directive provides for the possibility, for tenderers, to prove that they meet the minimum levels of technical and professional capacities fixed by the contracting authority by relying on the capacities of third party entities, in so far as they establish that they indeed have the necessary means for the performance of the contract which they do not themselves own if that contract is awarded to them, establishes the possibility, for tenderers, to use subcontractors for the performance of a contract, and that in a way which is, in principle, unlimited.
34


Nevertheless, where the procurement documents require tenderers to indicate, in their tenders, the share of the contract they may intend to subcontract and the proposed subcontractors, in accordance with the first paragraph of Article 25 of Directive 2004/18, the contracting authority is entitled to prohibit use of subcontractors whose capacities could not be verified at the level of examination of tenders and selection of the contractor, for the performance of essential parts of the contract (see, to that effect, judgment of 18 March 2004 in Siemens and ARGE Telekom, C‑314/01, EU:C:2004:159, paragraph 45).
35


Such is not however the effect of a stipulation such as that at issue in the main proceeding, which imposes limitations on the use of subcontractors for a share of the contract fixed in abstract terms as a certain percentage of that contract, and that irrespective of the possibility of verifying the capacities of potential subcontractors and without any mention of the essential character of the tasks which would be concerned. In all those respects, such a stipulation is incompatible with Directive 2004/18, which is relevant in the context of the main proceedings.
43


In that regard, it should be noted that, admittedly, as the Advocate General stated in points 53 to 55 of her Opinion, referring in particular to Article 9(5) of Regulation No 1083/2006 and, by analogy, to the judgment of 21 December 2011 in Chambre de commerce et d’industrie de l’Indre (C‑465/10, EU:C:2011:867, paragraphs 46 and 47), it is the role of the Union to finance, by the Structural Funds or the Cohesion Fund, only actions conducted in complete conformity with EU law.
44


However, it follows from the definition in Article 2(7) of that regulation that an infringement of EU law constitutes an irregularity within the meaning of that provision only if it has, or would have, the effect of prejudicing the general budget of the Union by charging an unjustified item of expenditure to that budget. Therefore, such an infringement must be considered to be an irregularity in so far as it is capable, as such, to have a budgetary impact. By contrast, there is no requirement that the existence of a specific financial impact be shown (see, by analogy, judgment of 21 December 2011 in Chambre de commerce et d’industrie de l’Indre, C‑465/10, EU:C:2011:867, paragraph 47).
45


Consequently, it should be considered that a failure to comply with the public procurement rules constitutes an irregularity within the meaning of Article 2(7) of Regulation No 1083/2006 in so far as the possibility cannot be excluded that that failure will have an impact on the budget of the Funds.
47


However, the first paragraph of Article 98(2) thereof also requires the competent national authority to calculate the amount of the correction to apply by taking into account three criteria, namely the nature and gravity of the irregularities and the resulting financial loss to the Funds.