Case C‑76/16

Ingsteel spol. s r. o.
and
Metrostav a.s.

v

Úrad pre verejné obstarávanie

(Request for a preliminary ruling
from the Najvyšší súd Slovenskej republiky)

(Reference for a preliminary ruling — Public procurement — Directive 2004/18/EC — Article 47(1), (4) and (5) — Economic and financial standing of the tenderer — Directives 89/665/EEC and 2007/66/EC — Judicial review of a decision to exclude a tenderer from a tendering procedure — Charter of Fundamental Rights of the European Union — Article 47 — Right to an effective remedy)

Summary — Judgment of the Court (Second Chamber), 13 July 2017

1. Approximation of laws—Procedures for the award of public works contracts, public supply contracts and public service contracts—Directive 2004/18—Award of contracts—Criteria for qualitative selection—Economic and financial standing—Requirement to submit a declaration by a bank in which it undertakes to grant credit of a certain amount and to guarantee that that amount will be available throughout the contract period—Lawfulness

   (European Parliament and Council Directive 2004/18, Art. 47(1)(a) and (4))

2. Approximation of laws—Procedures for the award of public works contracts, public supply contracts and public service contracts—Directive 2004/18—Award of contracts—Criteria for qualitative selection—Economic and financial standing—Impossibility for the tenderer, for a valid reason, to provide the references required by the contracting authority—Meaning of valid reason—Banks approached considering themselves unable to provide a statement in the terms specified in the contract notice—Included—Condition—Objective impossibility of providing the statement

   (European Parliament and Council Directive 2004/18, Recital 39 and Arts 44(2) and 47(5))

1.  Article 47(1)(a) and (4) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as meaning that a contracting authority may exclude a tenderer from a tendering procedure on the ground that it does not fulfil the criterion regarding economic and financial standing laid down in the contract notice with respect to the provision of a statement given by a bank undertaking to grant credit in the amount specified in the contract notice and to guarantee that that amount will be available to the tenderer throughout the period of performance of the contract.

   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, for the referring court to confirm that the amount required in the contract notice is proportionate to the subject matter of the contract. In respect 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). Moreover, the continued availability of the amount required throughout the period of performance of the contract is a useful tool in assessing, in a tangible manner, the economic and financial standing of the tenderer with respect to its commitments. The proper performance of the contract is indeed intrinsically linked to whether the tenderer has the financial means for the execution of the contract.

   (see paras 36-38, 41, operative part 1)

2.  Article 47(5) of Directive 2004/18 must be interpreted as meaning that, when a contract notice requires the provision of a statement given by a bank undertaking to grant credit in the amount specified in the contract notice and to guarantee that that amount will be available to the tenderer throughout the duration of the performance of the contract, the fact that the banks approached by the tenderer consider themselves unable to provide the tenderer with a statement in the terms specified by the contract notice may constitute a ‘valid reason’, within the meaning of that article, allowing the tenderer, where appropriate, to prove its economic and financial standing by any other document considered appropriate by the contracting authority, provided that it was objectively impossible for the tenderer to provide the references required by the contracting authority, which is a matter for the referring court to determine.

   Only if the referring court should find such an objective impossibility would that court be required to determine whether the contracting authority was entitled to take the view that the sworn statement provided by the tenderer was not an appropriate document to prove its economic and financial standing. It is also for the referring court to determine, in accordance with Article 44(2) of Directive 2003/18, read in the light of recital 39 thereof, whether the extent of the information and the competence required were related and proportionate to the subject matter of the contract and whether the selection criteria were applied in a non-discriminatory way. With regard to factual considerations, it is for the referring court to determine whether it was objectively impossible for the unsuccessful tenderer to provide the references required by the contracting authority and, if so, whether the contracting authority was entitled to consider that the sworn statement provided by the tenderer was not an appropriate document for proving its economic and financial standing.

   (see paras 46-48, operative part 2)