Holst Italia SpA v Comune di Cagliari, intervener: Ruhrwasser AG International Water Management.
Date: 1999-12-02
23 The Court observes first of all that, as is apparent from the sixth recital in the preamble thereto, Directive 92/50 is designed to avoid obstacles to freedom to provide services in the award of public service contracts, just as Directives 71/304 and 71/305 are designed to ensure freedom to provide services in the field of public works contracts (Ballast Nedam Groep I, paragraph 6).
25 In addition, the criteria for qualitative selection laid down in Chapter 2 of Title VI of Directive 92/50 are designed solely to define the rules governing objective assessment of the standing of tenderers, particularly as regards financial, economic and technical matters.  One of those criteria, provided for in Article 31(3), allows tenderers to prove their financial and economic standing by means of any other document which the contracting authority considers appropriate.  A further provision, contained in Article 32(2)(c), expressly states that evidence of the service provider's technical capability may be furnished by an indication of the technicians or technical bodies, whether or not belonging directly to the service provider, on which it can call to perform the service (see, to the same effect, as regards Directive 71/305, Ballast Nedam Groep I, paragraph 12).
26 From the object and wording of those provisions, it follows that a party cannot be eliminated from a procedure for the award of a public service contract solely on the ground that that party proposes, in order to carry out the contract, to use resources which are not its own but belong to one or more other entities (see, to the same effect, as regards Directives 71/304 and 71/305, Ballast Nedam Groep I, paragraph 15).
27 It is therefore permissible for a service provider which does not itself fulfil the minimum conditions required for participation in the procedure for the award of a public service contract to rely, vis-à-vis the contracting authority, on the standing of third parties upon whose resources it proposes to draw if it is awarded the contract.
28 However, such recourse to external references is subject to certain conditions.  As stated in Article 23 of Directive 92/50, the contracting authority is required to verify the suitability of the service providers in accordance with the criteria laid down.  That verification is intended, in particular, to enable the contracting authority to ensure that the successful tenderer will indeed be able to use whatever resources it relies on throughout the period covered by the contract.
29 Thus, where, in order to prove its financial, economic and technical standing with a view to being admitted to participate in a tendering procedure, a company relies on the resources of entities or undertakings with which it is directly or indirectly linked, whatever the legal nature of those links may be, it must establish that it actually has available to it the resources of those entities or undertakings which it does not itself own and which are necessary for the performance of the contract (see, to the same effect, as regards Directives 71/304 and 71/305, Ballast Nedam Groep I, paragraph 17).
30 It is for the national court to assess the relevance of the evidence adduced to that effect.  In the context of that assessment, Directive 92/50 does not permit the exclusion, without due analysis, of specific types of proof or the assumption that the service provider has available to it resources belonging to third parties merely by virtue of the fact that it forms part of the same group of undertakings.