Case C‑27/15

Pippo Pizzo

v

CRGT srl

(Request for a preliminary ruling

from the Consiglio di giustizia amministrativa per la Regione siciliana)

‛Reference for a preliminary ruling — Public procurement — Directive 2004/18/EC — Participation in a call for tenders — Possibility of relying on the capacities of other undertakings in order to satisfy the necessary criteria — Failure to pay a fee not expressly provided for — Exclusion from the contract without the possibility of rectifying that omission’

Summary — Judgment of the Court (Sixth Chamber), 2 June 2016

1. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Qualitative selection criteria — Economic and financial standing, technical and/or professional ability — National legislation which allows an economic operator to rely on the capacities of a number of undertakings — Whether permissible

   (European Parliament and Council Directive 2004/18, Arts 47(2) and 48(3))

2. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2014/24 — Temporal application

   (European Parliament and Council Directive 2014/24, Arts 63(1), third subpara., (2) and 90)

3. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Principle of equal treatment of tenderers — Obligation of transparency — Exclusion of an economic operator which has not complied with an obligation which was not expressly laid down in the contract documentation or in the national law from participating in a contract — No possibility of rectifying that omission — Not permissible

   (European Parliament and Council Directive 2004/18, Arts 2 and 27 and Annex VII A)

1.  Articles 47 and 48 of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as not precluding national legislation which allows an economic operator to rely on the capacities of one or more third-party entities for the purpose of satisfying the minimum requirements for participating in a tendering procedure which are only partially satisfied by that operator, and that includes the use of their bank references.

   Directive 2004/18 permits the combining of the capacities of more than one economic operator for the purpose of satisfying the minimum capacity requirements set by the contracting authority, provided that the candidate or tenderer relying on the capacities of one or more other entities proves to that authority that it will actually have at its disposal the resources of those entities necessary for the execution of the contract. If it is conceivable that there are works the special requirements of which necessitate a certain capacity which cannot be obtained by combining the capacities of more than one operator, the contracting authority would, however, be justified in requiring that the minimum capacity level concerned be achieved by a single economic operator or by relying on a limited number of economic operators as long as that requirement is related and proportionate to the subject matter of the contract at issue. It is, however, for the referring court to ascertain whether the call for tenders and the contract documents in respect of the contract at issue expressly stipulated that, in the light of the special requirements of the services forming the subject matter of that contract, a minimum capacity level has to be achieved by a single economic operator.

   (see paras 26, 28-30, 34, operative part 1)

2.  Under Article 90 of Directive 2014/24 on public procurement and repealing Directive 2004/18, Member States had to comply with the provisions of that directive by 18 April 2016. In that regard, although Member States must refrain, during the period prescribed for transposition of a directive, from taking any measures liable seriously to compromise the result prescribed by that directive, they may not, however, impose on a tenderer, before that period has expired, constraints which do not derive from EU law.

   (see paras 31, 32)

3.  The principle of equal treatment and the obligation of transparency must be interpreted as precluding an economic operator from being excluded from a procedure for the award of a public contract as a result of that economic operator’s non-compliance with an obligation which does not expressly arise from the documents relating to that procedure or out of the national law in force, but from an interpretation of that law and those documents and from the incorporation of provisions into those documents by the national authorities or administrative courts. Accordingly, the principles of equal treatment and of proportionality must be interpreted as not precluding an economic operator from being allowed to regularise its position and comply with that obligation within a period of time set by the contracting authority.

   First, pursuant to Article 2 of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, a contracting authority must comply strictly with the criteria which it has itself established. That consideration applies a fortiori where an exclusion from the procedure is concerned, as Article 27 of that directive cannot be interpreted as meaning that it allows those contracting authorities to derogate from that obligation.

   Secondly, a condition governing the right to participate in a public procurement procedure which arises out of the interpretation of national law and the practice of an authority would be particularly disadvantageous for tenderers established in other Member States, inasmuch as their level of knowledge of national law and the interpretation thereof and of the practice of the national authorities cannot be compared to that of national tenderers.

   (see paras 39, 42, 44, 46, 47, 51, operative part 2)