Ballast Nedam Groep NV v Belgian State.
Date: 1994-04-14
6 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 (see the judgment in Case 76/81 Transporoute [1982] ECR 417, at paragraph 7).
7 In regard to such coordination, Title IV of Directive 71/305 has laid down a number of common rules on the participation of contractors in public works contracts. Amongst those rules are to be found in particular Article 21, which authorizes groups of contractors to submit tenders and Article 28 which, in connection with the drawing up of official lists of recognized contractors, refers to the criteria for qualitative selection defined by Articles 23 to 26, which also specify the manner in which undertakings may furnish proof that they satisfy those criteria (see the judgment in Transporoute, cited above, at paragraph 8).
12 Finally, the sole purpose of the criteria for qualitative selection laid down in Articles 23 to 26 of Directive 71/305, to which Article 28 of that directive on official lists of recognized contractors refers, is to define the rules relating to the objective assessment of the standing and, in particular, technical knowledge and ability of contractors. Article 26(e) provides expressly that a statement of the technicians or technical divisions which the contractor can call upon for carrying out the work, whether or not they belong to the firm, may be furnished as proof of such technical knowledge or ability.
13 As the Commission rightly points out, it is clear from all those provisions that not only a natural or legal person who will himself carry out the works but also a person who will have the contract carried out through agencies or branches or will have recourse to technicians or outside technical divisions, or even a group of undertakings, whatever its legal form, may seek to be awarded public works contracts.
15 Accordingly a holding company which does not itself execute works may not, because its subsidiaries which do carry out works are separate legal persons, be precluded on that ground from participation in public works contract procedures.
16 However, it is for the authorities awarding contracts, as Article 20 of Directive 71/305 specifies, to check the suitability of contractors in accordance with the criteria of economic and financial standing and of technical knowledge or ability referred to in Articles 25 to 28 of that directive.
17 When, in this connection, a company produces references relating to its subsidiaries in order to prove its economic and financial standing and technical knowledge and ability for the purpose of registration on the official list of recognized undertakings, it must establish that, whatever the nature of its legal link with those subsidiaries, it actually has available to it the resources of the latter which are necessary for carrying out the contracts. It is for the national court to assess, in the light of the factual and legal circumstances before it, whether such proof has been produced in the main proceedings.