«Ostas celtnieks» SIA v Talsu novada pašvaldība and Iepirkumu uzraudzības birojs.
Date: 2016-01-14
20


It is true that the Court has previously held that the interpretation of provisions of an act of the Union in situations outside that act’s scope is justified where those provisions have been made applicable to such situations by national law directly and unconditionally in order to ensure that internal situations and situations governed by EU law are treated in the same way (judgment in Generali-Providencia Biztosító, C‑470/13, EU:C:2014:2469, paragraph 23 and the case-law cited).
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In order to answer that question it should be recalled that according to the Court’s settled case-law, Articles 47(2) and 48(3) of Directive 2004/18 recognise the right of every economic operator 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, to that effect, judgment in Swm Costruzioni 2 and Mannocchi Luigino, C‑94/12, EU:C:2013:646, paragraphs 29 and 33).
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Such an interpretation, as the Court has already held, is consistent with the aim of the widest possible opening-up of public contracts to competition pursued by the relevant directives to the benefit not only of economic operators but also of contracting authorities. In addition, 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 (judgment in Swm Costruzioni 2 and Mannocchi Luigino, C‑94/12, EU:C:2013:646, paragraph 34 and the case-law cited).
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Thus, where, in order to prove its financial, economic, technical and/or professional 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 that effect, judgment in Holst Italia, C‑176/98, EU:C:1999:593, paragraph 29 and the case-law cited).
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In that connection, it must be observed that, in accordance with Article 44(1) of Directive 2004/18, it is for the contracting authority 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 be able to use whatever resources it relies on throughout the period covered by the contract. (see, by analogy, judgment in Holst Italia, C‑176/98, EU:C:1999:593, paragraph 28).
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In the context of that assessment, Articles 47(2) and 48(3) of Directive 2004/18 do not make it possible either to assume that a tenderer has or has not the means necessary to perform the contract or, a fortiori, to exclude a priori certain types of proof (see, by analogy, Holst Italia, C‑176/98, EU:C:1999:593, paragraph 30).