INGSTEEL spol. sro and Metrostav as v Úrad pre verejné obstarávanie.
Date: 2017-07-13
25


As a preliminary point, it should be noted that Article 267 TFEU does not empower the Court to apply rules of EU law to a particular case, but only to rule on the interpretation of the Treaties and of acts adopted by the EU institutions. The Court may, however, in the framework of the judicial cooperation provided for by that article and on the basis of the material presented to it, provide the national court with an interpretation of EU law which may be useful to it in assessing the effects of one or other of its provisions (judgment of 16 July 2015, CHEZ Razpredelenie Bulgaria, C‑83/14, EU:C:2015:480, paragraph 71 and the case-law cited).
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In this respect it must be noted that Article 47 of Directive 2004/18 leaves a fair degree of freedom to the contracting authorities, which is apparent, in particular, from the expression ‘as a general rule’ in that provision. As is clear from the Court’s case-law, unlike Article 48 of that directive, which establishes a closed system limiting the methods of assessment and verification available to those authorities and, therefore, limits their opportunities to lay down requirements, Article 47(4) expressly authorises contracting authorities to choose the references that must be produced by candidates or tenderers in order to prove their economic and financial standing. As Article 44(2) of Directive 2004/18 refers to Article 47 thereof, the same freedom of choice exists as regards the minimum levels of economic and financial standing (see, to that effect, judgment of 18 October 2012, Édukövízig and Hochtief Construction, C‑218/11, EU:C:2012:643, paragraph 28).
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That said, it is expressly stated in the second subparagraph of Article 44(2) of Directive 2004/18 that the minimum levels of ability required for a specific contract must be related and proportionate to the subject matter of the contract. It follows that the requirements in terms of economic and financial standing must be objectively such as to provide information on such standing of an economic operator and must be adapted to the size of the contract concerned in that they constitute objectively a positive indication of the existence of a sufficient economic and financial basis for the performance of that contract, without, however, going beyond what is reasonably necessary for that purpose (see, to that effect, judgment of 18 October 2012, Édukövízig and Hochtief Construction, C‑218/11, EU:C:2012:643, paragraph 29).
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Furthermore, it must be noted, first, that the principle of equal treatment requires tenderers to be afforded equality of opportunity when formulating their tenders, which therefore implies that the bids of all tenderers must be subject to the same conditions. Second, the obligation of transparency, which is its corollary, is intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. That obligation implies that all 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 tender 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 tenders submitted satisfy the criteria applying to the contract in question (judgment of 2 June 2016, Pizzo, C‑27/15, EU:C:2016:404, paragraph 36 and the case-law cited).
36


In this respect, it must be noted that a requirement to obtain a loan tied to performance of the contract is, objectively, a reasonable means of obtaining information on the economic ability of the tenderer to perform the contract successfully. As the European Commission noted, the grant of a loan is an appropriate means of establishing that the tenderer has at its disposal resources which it does not itself own and which are necessary for the performance of the contract (see, to that effect, judgment of 2 December 1999, Holst Italia, C‑176/98, EU:C:1999:593, paragraph 29). It is, however, once again for the referring court to confirm that the amount required in the contract notice is proportionate to the subject matter of the contract.
37


In respect, second, of the requirement, also laid down in the contract notice, regarding the grant of credit in a minimum amount of EUR 3000000‘for the period of performance of the contract (48 months)’, although, admittedly Article 47 of Directive 2004/18 does not expressly provide that the contracting authority may require a tenderer to have at its disposal the resources necessary for the performance of the contract throughout the duration of the performance of the contract, it must be noted, as the Advocate General observed in point 46 of his Opinion, that the contracting authority’s verification of the tenderer’s compliance with the economic and financial criteria in a tendering procedure, is intended to provide that authority with the assurance that the successful tenderer will indeed be able to use whatever resources it relies on throughout the period covered by the contract (see, to that effect, judgment of 14 January 2016, Ostas celtnieks, C‑234/14, EU:C:2016:6, paragraph 26 and the case-law cited).