Ambisig – Ambiente e Sistemas de Informação Geográfica SA v AICP – Associação de Industriais do Concelho de Pombal.
Date: 2016-07-07
16


First of all, it should be recalled that, according to settled case-law of the Court, where the State has failed to implement a directive in domestic law by the end of the period prescribed or where it has failed to implement the directive correctly, only the provisions of that directive which appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise may be relied on by individuals before national courts against the State (see, to that effect, judgments of 12 December 2013 in Portgás, C‑425/12, EU:C:2013:829, paragraph 18 and the case-law cited; 14 January 2014 in Association de médiation sociale, C‑176/12, EU:C:2014:2, paragraph 31; and 15 May 2014 in Almos Agrárkülkereskedelmi, C‑337/13, EU:C:2014:328, paragraph 31).
21


In that regard, it must be borne in mind that, according to settled case-law of the Court, although a directive cannot of itself impose obligations on an individual and cannot therefore be relied on as such against an individual (see, in particular, judgments of 24 January 2012 in Dominguez, C‑282/10, EU:C:2012:33, paragraph 37 and the case-law cited, and 15 January 2015 in Ryanair, C‑30/14, EU:C:2015:10, paragraph 30), where a person is able to rely on a directive not as against an individual but as against the State he may do so regardless of the capacity in which the latter is acting. It is necessary to prevent the State from taking advantage of its own failure to comply with EU law (see, to that effect, judgments of 24 January 2012 in Dominguez, C‑282/10, EU:C:2012:33, paragraph 38 and the case-law cited, and 12 December 2013 in Portgás, C‑425/12, EU:C:2013:829, paragraph 23).
22


Consequently, the entities against which reliance may be placed on the provisions of a directive that are capable of having direct effect include not only a public entity but also a body, whatever its legal form, which has been given responsibility, pursuant to a measure adopted by the State, for providing a public-interest service under the control of the State and which has, for that purpose, special powers beyond those which result from the normal rules applicable in relations between individuals (judgment of 12 December 2013 in Portgás, C‑425/12, EU:C:2013:829, paragraph 24 and the case-law cited).
24


In such a situation, it will nonetheless be for that court to interpret domestic law, so far as possible, in the light of the wording and the purpose of Directive 2004/18 in order to achieve the result sought in the second indent of Article 48(2)(a)(ii) of that directive and consequently comply with the third paragraph of Article 288 TFEU (see, to that effect, judgments of 24 January 2012 in Dominguez, C‑282/10, EU:C:2012:33, paragraph 24 and the case-law cited, and 19 April 2016 in DI, C‑441/14, EU:C:2016:278, paragraph 31).
25


In that regard, it must be noted that the obligation on a national court to refer to the content of a directive when interpreting and applying the relevant rules of domestic law is, however, limited by general principles of law and it cannot serve as the basis for an interpretation of national law contra legem (see, to that effect, judgments of 24 January 2012 in Dominguez, C‑282/10, EU:C:2012:33, paragraph 25 and the case-law cited, and 19 April 2016 in DI, C‑441/14, EU:C:2016:278, paragraph 32).
26


Consequently, where national law cannot be interpreted consistently with Directive 2004/18, the party adversely affected by the incompatibility of national law with EU law may rely upon the case-law deriving from the judgment of 19 November 1991 in Francovich and Others (C‑6/90 and C‑9/90, EU:C:1991:428) in order to obtain, if appropriate, compensation for any damage suffered (see, to that effect, judgment of 26 March 2015 in Fenoll, C‑316/13, EU:C:2015:200, paragraph 48 and the case-law cited).
35


Such an interpretation is indeed borne out by the context in which the terms of that article occur and the purposes of Directive 2004/18 (see, to that effect, judgment of 22 March 2012 in GENESIS, C‑190/10, EU:C:2012:157, paragraph 41 and the case-law cited).
36


As regards, first, the context of the second indent of Article 48(2)(a)(ii) of Directive 2004/18, it is apparent from the case-law of the Court that that provision establishes a closed system which limits the methods of assessment and verification available of technical capacity to the contracting authorities (see, to that effect, judgment of 18 October 2012 in Édukövízig and Hochtief Construction, C‑218/11, EU:C:2012:643, paragraph 28). It follows that although new means of evidence may not be established in the matter by those authorities, nor can those authorities limit the scope of the evidence already provided for.
40


In accordance with the principle of proportionality, which constitutes a general principle of EU law, the contracting authorities’ rules related to the application of the two means of evidence referred to in the second indent of Article 48(2)(a)(ii) of Directive 2004/18 must not go beyond what is necessary to achieve the intended objectives of that directive (see, to that effect, judgment of 22 October 2015 in Impresa Edilux and SICEF, C‑425/14, EU:C:2015:721, paragraph 29 and the case-law cited).
48


It should be noted, with regard to that linguistic divergence, that, according to settled case-law of the Court, the wording used in one language versions of a provision of EU law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. The provisions of EU law must be interpreted and applied in a uniform manner, in the light of the versions established in all the languages of the European Union. Where there is a divergence between the various language versions of a provision of EU law, the provision in question must be interpreted by reference to the general scheme and the purpose of the rules of which it forms part (judgment of 15 October 2015 in Grupo Itevelesa and Others, C‑168/14, EU:C:2015:685, paragraph 42 and the case-law cited).
52


In particular, as is apparent from the case-law of the Court, that directive seeks to facilitate the involvement of small- and medium-sized undertakings in the public contracts procurement market, as stated in recital 32 of that directive (see, to that effect, judgments of 10 October 2013 in Swm Costruzioni 2 and Mannocchi Luigino, C‑94/12, EU:C:2013:646, paragraph 34, and 7 April 2016 in Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraph 34).