SA Transporoute et travaux v Minister of Public Works.
Date: 1982-02-10
7 DIRECTIVES 71/304 AND 71/305 ARE DESIGNED TO ENSURE FREEDOM TO PROVIDE SERVICES IN THE FIELD OF PUBLIC WORKS CONTRACTS . THUS THE FIRST OF THOSE DIRECTIVES IMPOSES A GENERAL DUTY ON MEMBER STATES TO ABOLISH RESTRICTIONS ON ACCESS TO , PARTICIPATION IN AND THE PERFORMANCE OF PUBLIC WORKS CONTRACTS AND THE SECOND DIRECTIVE PROVIDES FOR COORDINATION OF THE PROCEDURES FOR THE AWARD OF PUBLIC WORKS CONTRACTS .
8 IN REGARD TO SUCH COORDINATION CHAPTER I OF TITLE IV OF DIRECTIVE 71/305 IS NOT LIMITED TO STATING THE CRITERIA FOR SELECTION ON THE BASIS OF WHICH CONTRACTORS MAY BE EXCLUDED FROM PARTICIPATION BY THE AUTHORITY AMENDING THE CONTRACT . IT ALSO PRESCRIBES THE MANNER IN WHICH CONTRACTORS MAY FURNISH PROOF THAT THEY SATISFY THOSE CRITERIA .
9 THUS ARTICLE 27 STATES THAT THE AUTHORITY AWARDING CONTRACTS MAY INVITE THE CONTRACTOR TO SUPPLEMENT THE CERTIFICATES AND DOCUMENTS SUBMITTED ONLY WITHIN THE LIMITS OF ARTICLES 23 TO 26 OF THE DIRECTIVE , ACCORDING TO WHICH MEMBER STATES MAY REQUEST REFERENCES OTHER THAN THOSE EXPRESSLY MENTIONED     IN THE DIRECTIVE ONLY FOR THE PURPOSE OF ASSESSING THE FINANCIAL AND ECONOMIC STANDING OF THE CONTRACTORS AS PROVIDED FOR IN ARTICLE 25 OF THE DIRECTIVE .
10 SINCE THE ESTABLISHMENT PERMIT IN QUESTION IS INTENDED , AS THE LUXEMBOURG GOVERNMENT HAS ACKNOWLEDGED IN ITS WRITTEN OBSERVATIONS , TO ESTABLISH NOT THE FINANCIAL AND ECONOMIC STANDING OF UNDERTAKINGS BUT THE QUALIFICATIONS AND GOOD STANDING OF THOSE IN CHARGE OF THEM , AND SINCE THE EXCEPTION PROVIDED FOR IN ARTICLE 25 OF DIRECTIVE 71/305 DOES NOT APPLY , THE PERMIT CONSTITUTES A MEANS OF PROOF WHICH DOES NOT COME WITHIN THE CLOSED CATEGORY OF THOSE AUTHORIZED BY THE DIRECTIVE .
14 IT SHOULD BE NOTED THAT THE RESULT OF THAT INTERPRETATION OF DIRECTIVE 71/305 IS IN CONFORMITY WITH THE SCHEME OF THE TREATY PROVISIONS CONCERNING THE PROVISION OF SERVICES . TO MAKE THE PROVISION OF SERVICES IN ONE MEMBER STATE     BY A CONTRACTOR ESTABLISHED IN ANOTHER MEMBER STATE CONDITIONAL UPON THE POSSESSION OF AN ESTABLISHMENT PERMIT IN THE FIRST STATE WOULD BE TO DEPRIVE ARTICLE 59 OF THE TREATY OF ALL EFFECTIVENESS , THE PURPOSE OF THAT ARTICLE BEING PRECISELY TO ABOLISH RESTRICTIONS ON THE FREEDOM TO PROVIDE SERVICES BY PERSONS WHO ARE NOT ESTABLISHED IN THE STATE IN WHICH THE SERVICE IS TO BE PROVIDED .
15 ACCORDINGLY , THE REPLY TO THE FIRST QUESTION MUST BE THAT COUNCIL DIRECTIVE 71/305 MUST BE INTERPRETED AS PRECLUDING A MEMBER STATE FROM REQUIRING A TENDERER ESTABLISHED IN ANOTHER MEMBER STATE TO FURNISH PROOF BY ANY MEANS , FOR EXAMPLE BY AN ESTABLISHMENT PERMIT , OTHER THAN THOSE PRESCRIBED IN ARTICLES 23 TO 26 OF THAT DIRECTIVE , THAT HE SATISFIES THE CRITERIA LAID DOWN IN THOSE PROVISIONS AND RELATING TO HIS GOOD STANDING AND QUALIFICATIONS .

SECOND QUESTION
18 THE REPLY TO THE SECOND QUESTION MUST THEREFORE BE THAT WHEN IN THE OPINION OF THE AUTHORITY AWARDING A PUBLIC WORKS CONTRACT A TENDERER ' S OFFER IS OBVIOUSLY ABNORMALLY LOW IN RELATION TO THE TRANSACTION ARTICLE 29 ( 5 ) OF DIRECTIVE 71/305 REQUIRES THE AUTHORITY TO SEEK FROM THE TENDERER , BEFORE COMING TO A DECISION AS TO THE AWARD OF THE CONTRACT , AN EXPLANATION OF HIS PRICES OR TO INFORM THE TENDERER WHICH OF HIS TENDERS APPEAR TO BE ABNORMAL , AND TO ALLOW HIM A REASONABLE TIME WITHIN WHICH TO SUBMIT FURTHER DETAILS .