Swm Costruzioni 2 SpA and Mannocchi Luigino DI v Provincia di Fermo.
Date: 2013-10-10
24. The fact that a national court has, formally speaking, worded a question referred for a preliminary ruling with reference solely to certain provisions of European Union law does not preclude the Court from providing to the national court all the elements of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions (see, to that effect, Case C‑248/11 Nilaş and Others  [2012] ECR I‑0000, paragraph 31 and the case-law cited).
29. For that purpose, the contracting authority must take account of the right conferred on every economic operator by Articles 47(2) and 48(3) of Directive 2004/18 to rely on, for a particular contract, 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 execution of the contract.
30. It should be noted, as the Advocate General observed at point 18 of his Opinion, that the systematic use of the plural in those provisions indicates that they do not prohibit, in principle, candidates or tenderers from relying on the capacities of more than one third-party entity in order to prove that they meet a minimum capacity level. A fortiori , those provisions do 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.
31. That finding is corroborated by several provisions in Directive 2004/18. Thus, Article 48(2)(b) thereof refers to reliance on technicians or technical bodies, whether or not they belong directly to the undertaking of the economic operator concerned, upon whom the contractor can call in order to carry out the work. Similarly, Article 48(2)(h) of the directive refers to the tools, plant or technical equipment available to the contractor for carrying out the contract, without imposing any limit on the number of entities who will provide them. To the same effect, Article 4(2) of the directive permits groups of economic operators to participate in public procurement procedures without imposing any limit on the combining of capacities, in the same way as Article 25 of the directive provides for the use of subcontractors without imposing any limit in that regard.
32. Finally, the Court has expressly referred to an economic operator’s right to use resources belonging to one or more other entities, possibly in addition to its own resources, in order to carry out a contract (see, to that effect, Case C‑176/98 Holst Italia  [1999] ECR I‑8607, paragraphs 26 and 27, and Case C‑314/01 Siemens and ARGE Telekom [2004] ECR I‑2549, paragraph 43).
33. Therefore, it must 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.
34. 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, Case C‑305/08 CoNISMa  [2009] ECR I‑12129, paragraph 37 and the case-law cited). In addition, as the Advocate General noted at points 33 and 37 of his Opinion, 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.
35. It is true that there may be works with special requirements necessitating a certain capacity which cannot be obtained by combining the capacities of more than one operator, which, individually, would be inadequate. 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, where appropriate, by relying on a limited number of economic operators, in accordance with the second subparagraph of Article 44(2) of Directive 2004/18, as long as that requirement is related and proportionate to the subject-matter of the contract at issue.