UAB ‘Borta’ v VĮ Klaipėdos valstybinio jūrų uosto direkcija.
Date: 2017-04-05
27


First, as regards Directive 2014/25, it must be recalled, as a preliminary point, that according to settled case-law the applicable directive is, as a rule, the one in force when the contracting authority chooses the type of procedure to be followed and decides definitively whether it is necessary for a prior call for competition to be issued for the award of a public contract. Conversely, a directive is not applicable if the period prescribed for its transposition expired after that point in time (see, to that effect, judgment of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraph 83 and the case-law cited).
30


Second, as regards Directive 2004/17, it is apparent from the decision to refer that the contract at issue in the main proceedings has a value which is less than the threshold of EUR 5186000 laid down in Article 16(b) of Directive 2004/17. Therefore, that directive is not applicable to the contract (see, by analogy, judgment of 16 April 2015, Enterprise Focused Solutions, C‑278/14, EU:C:2015:228, paragraph 15 and the case-law cited).
33


In that connection, it must be recalled that where, in regulating situations outside the scope of the EU measure concerned, national legislation seeks to adopt the same solutions as those adopted in that measure, it is clearly in the interest of the European Union that, in order to forestall future differences of interpretation, provisions taken from that measure should be interpreted uniformly (see, to that effect, judgments of 18 October 2012, Nolan, C‑583/10, EU:C:2012:638, paragraph 46, and of 7 November 2013, Romeo, C‑313/12, EU:C:2013:718, paragraph 22).
34


Thus, an interpretation by the Court of provisions of EU law in situations outside its scope is justified where those provisions have been made applicable to such situations by national law in a direct and unconditional way in order to ensure that internal situations and situations governed by EU law are treated in the same way (see, to that effect, judgments of 18 October 2012, Nolan, C‑583/10, EU:C:2012:638, paragraph 47; of 7 November 2013, Romeo, C‑313/12, EU:C:2013:718, paragraphs 22 and 23; and of 14 January 2016, Ostas celtnieks, C‑234/14, EU:C:2016:6, paragraph 20).
35


That being the case, it is also clear from settled case-law that, where the conditions set out in the two preceding paragraphs of the present judgment are not met, in order to provide a useful answer to a national court which has referred a question to it, the Court may deem it necessary to consider rules of EU law to which the national court has not referred in its request for a preliminary ruling (judgment of 16 April 2015, Enterprise Focused Solutions, C‑278/14, EU:C:2015:228, paragraph 17 and the case-law cited).
36


More particularly, with respect to the award of a contract which, having regard to its value, does not come within the scope of Directive 2004/17, the Court may take account of the fundamental rules and general principles of the FEU Treaty, in particular Articles 49 and 56 thereof and the principles of equal treatment and non-discrimination and the obligation of transparency which derive from them, provided that it is of certain cross-border interest. Although not covered by Directive 2004/17, such contracts are still subject to compliance with those rules and principles (see, to that effect, judgments of 23 December 2009, Serrantoni and Consorzio stabile edili, C‑376/08, EU:C:2009:808, paragraphs 22 to 24; of 18 December 2014, Gennerali-Providencia Biztositó, C‑470/13, EU:C:2014:2469, paragraph 27; and of 6 October 2016, Tecnoedi Costruzioni, C‑318/15, EU:C:2016:747, paragraph 19).
40


However, as the referring court observed, that directive does not contain any provision having contents analogous to those in Article 24(5) of the Law on public procurement. Furthermore, according to that court, the Lithuanian legislature has not indicated that it took account of that directive when it adopted the latter provision.
41


In those circumstances, where Article 24(5) of the Law on public procurement applies to contracts which do not fall within the scope of Directive 2004/17, it cannot be held that that provision makes a direct and unconditional reference to the directive within the meaning of the case-law set out in paragraph 34 of the present judgment (see, by analogy, judgment of 7 July 2011, Agafiţei and Others, C‑310/10, EU:C:2011:467, paragraph 45).
44


A contract may have such interest, having regard in particular to the fact that is for a significant amount, in conjunction with the place where the work is to be carried out or the technical characteristics of the contract. The referring court may, in its overall assessment of the existence of certain cross-border interest, also take account of the existence of complaints brought by operators situated in other Member States, provided that it is determined that those complaints are real and not fictitious (see, to that effect, judgment of 16 April 2015, Enterprise Focused Solutions, C‑278/14, EU:C:2015:228, paragraph 20 and the case-law cited).
47


For that purpose, it must be recalled that Articles 49 and 56 TFEU preclude any national measure which, even if it applies without discrimination as to nationality, prohibits, impedes or renders less attractive the freedom of establishment and/or the freedom to provide services (judgments of 27 October 2005, Contse and Others, C‑234/03, EU:C:2005:644, paragraph 25; of 23 December 2009, Serrantoni and Consorzio stabile edili, C‑376/08, EU:C:2009:808, paragraph 41; and of 8 September 2016, Politanò, C‑225/15, EU:C:2016:645, paragraph 37).
48


As regards public contracts, it is the concern of the European Union to ensure the widest possible participation by tenderers in a call for tenders, including contracts which are not covered by Directive 2004/17 (see, to that effect, judgments of 10 July 2014, Consorzio Stabile Libor Lavori Pubblici, C‑358/12, EU:C:2014:2063, paragraph 29, and of 28 January 2016, CASTA and Others, C‑50/14, EU:C:2016:56, paragraph 55). The use of subcontractors, which is likely to facilitate access of small and medium-sized undertakings to public contracts, contributes to the pursuit of that objective.
51


However, such a restriction may be justified in so far as it pursues a legitimate objective in the public interest, and to the extent that it complies with the principle of proportionality in that it is suitable for securing the attainment of that objective and does not go beyond what is necessary in order to attain it (see, to that effect, judgments of 27 October 2005, Contse and Others, C‑234/03, EU:C:2005:644, paragraph 25, and of 23 December 2009, Serrantoni and Consorzio stabile edili, C‑376/08, EU:C:2009:808, paragraph 44).
54


However, it is possible that such an objective may justify certain limits on the use of subcontracting (see, to that effect, judgments of 18 March 2004, Siemens and ARGE Telekom, C‑314/01, EU:C:2004:159, paragraph 45, and of 14 July 2016, Wrocław - Miasto na prawach powiatu, C‑406/14, EU:C:2016:562, paragraph 34), it must be held that a provision of a national law, such as Article 24(5) of the Law on public procurement, goes beyond what is necessary in order to achieve that objective, in that it prohibits in a general manner reliance on subcontractors for works treated as ‘main’ works by the contracting entity.
55


That prohibition applies whatever the economic sector concerned by the contract at issue, the nature of the works and the qualifications of the subcontractors. Furthermore, such a general prohibition does not allow for any assessment on a case-by-case basis by that entity.
57


Thus, as the Advocate General observed in point 51 of her Opinion, an alternative less restrictive measure which guarantees the achievement of the objective pursued would have been to require the main contractor to indicate in their tender the proportion of the contract that they intend to contract out, the proposed subcontractors and their capacities. It might also be possible for the contracting entity to prohibit tenderers from changing subcontractors if that entity was not able beforehand to verify the identity and capacity of the latter.
59


Second, as regards the justification based on the encouragement of small and medium-sized undertakings to participate in a contract as tenderers rather than subcontractors, it is of course conceivable that such an objective may, in certain circumstances and under certain conditions, constitute a legitimate objective (see, by analogy, judgment of 25 October 2007, Geurts and Vogten, C‑464/05, EU:C:2007:631, paragraph 26).
65


In those circumstances, it cannot be held that Article 27(4) of the Law on public procurement, when it applies to contracts falling outside the scope of that directive, makes a direct and unconditional reference to it within the meaning of the case-law set out in paragraph 34 of the present judgment (see, by analogy, judgment of 7 July 2011, Agafiţei and Others, C‑310/10, EU:C:2011:467, paragraph 45).
68


In that connection, it must be recalled that, according to settled case-law, those principles and that obligation require, in particular, that tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being assessed by the contracting authority. The obligation of transparency aims more specifically to preclude any risk of favouritism or arbitrariness on the part of the contracting authority (see, to that effect, judgments of 6 November 2014, Cartiera dell’Adda, C‑42/13, EU:C:2014:2345, paragraph 44, and of 14 July 2016, TNS Dimarso, C‑6/15, EU:C:2016:555, paragraph 22).
69


Those principles and that obligation require, in particular, that the subject matter and the award criteria for the contract concerned are clearly determined from the beginning of the award procedure for that contract and that 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 bids submitted satisfy the criteria applying to the contract in question (see, to that effect, judgments of 10 May 2012, Commission v Netherlands, C‑368/10, EU:C:2012:284, paragraphs 56, 88 and 109; of 6 November 2014, Cartiera dell’Adda, C‑42/13, EU:C:2014:2345, paragraph 44; and of 14 July 2016, TNS Dimarso, C‑6/15, EU:C:2016:555, paragraph 23). The obligation of transparency also means that the subject matter and the award criteria must be adequately publicised by the contracting authorities (see, to that effect, judgment of 24 January 2008, Lianakis and Others, C‑532/06, EU:C:2008:40, paragraph 40).
70


It is also clear from the case-law of the Court that the contracting authority cannot, in principle, during an award procedure, amend the scope of the essential conditions of the contract, which include the technical specifications and the award criteria, and on which the economic operators concerned have legitimately relied in order to take the decision to prepare the submission of a tender, or to the contrary to decide not to participate in the award procedure for the contract concerned (see, to that effect, judgments of 10 May 2012, Commission v Netherlands, C‑368/10, EU:C:2012:284, paragraph 55, and of 16 April 2015, Enterprise Focused Solutions, C‑278/14, EU:C:2015:228, paragraphs 27 to 29).
72


Thus, the contracting authority has the possibility, on an exceptional basis, to correct or amplify the information in the tender specifications which require mere clarification, or to correct obvious material errors, provided that all the tenderers are informed (see, by analogy, judgment of 29 March 2012, SAG ELV Solvensko and Others, C‑599/10, EU:C:2012:191, paragraph 40).
85


That provision recognises the right of every economic operator, where the contracting entity lays down a qualitative selection criterion consisting of requirements relating to technical or professional abilities, 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, by analogy, judgment of7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraph 33 and the case-law cited). In accordance with that provision, that right extends to groups of economic operators submitting a common tender, which may, under the same conditions, rely on the capacities of their participants or of other entities.
86


Therefore, Directive 2004/17 does not preclude the exercise of the right established in Article 54(6) thereof from being limited in exceptional circumstances (see, by analogy, judgment of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraph 39).
87


In particular, it is conceivable that, in specific circumstances, having regard to the nature and objectives of a particular contract, the capacities of a third party entity, which are necessary for the performance of a particular contract, cannot be transferred to the tenderer. Accordingly, in such circumstances, the tenderer may rely on those capacities only if the third party entity directly and personally participates in the performance of the contract concerned (see, to that effect, judgment of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraph 41).
88


In such circumstances, the contracting entity may, for the purposes of the proper performance of the contract concerned, expressly set out in the tender notice or the tender specifications the specific rules authorising an economic operator to rely on the capacities of other entities, provided that those rules are related and proportionate to the subject matter and objectives of that contract (see, to that effect, judgment of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraphs 54 to 56).
90


In the present case, the port authority and the Lithuanian Government submit essentially that Clause 4.3 of the tender specifications at issue in the main proceedings aims to avoid the situation in which, in order to win the contract, a tenderer relies on capacities that he does not intend to use or, conversely, that a tenderer may be awarded a contract and perform part of the works without having the capacities and resources necessary for the proper performance of those works.