Case C‑298/15

‘Borta’ UAB

v

Klaipėdos valstybinio jūrų uosto direkcija VĮ

(Request for a preliminary ruling
from the Lietuvos Aukščiausiasis Teismas)

(Reference for a preliminary ruling — Public procurement — Directive 2004/17/EC — Contract not reaching the threshold laid down by that directive — Articles 49 and 56 TFEU — Limit on reliance on subcontracting — Submission of a common tender — Professional capacities of the tenderers — Changes to the tender specifications)

Summary — Judgment of the Court (Fifth Chamber), 5 April 2017

1. Approximation of laws—Procedures for awarding contracts in the water, energy, transport and postal services sectors—Directive 2014/25—Temporal application—Decision of the contracting authority choosing the type of procedure to follow for award of contracts adopted before the time-limit for the transposition of that directive—Inapplicability of the Directive

   (European Parliament and Council Directive 2014/25, Art. 3(1))

2. Approximation of laws—Procedures for awarding contracts in the water, energy, transport and postal services sectors—Directive 2004/17—Scope—Contract of a value less than the threshold fixed by the directive but having a certain cross-border interest—Not included—Obligation to comply with the fundamental rules and general principles of the FUE Treaty—National legislation limiting recourse to subcontractors by requiring the performance of the main works by the tenderer itself—Unlawful—Justification—None)

   (Arts, 49 TFEU and 56 TFEU; European Parliament and Council Directive 2004/17, as amended by Regulation No 1336/2013)

3. Approximation of laws—Procedures for awarding contracts in the water, energy, transport and postal services sectors—Directive 2004/17—Scope—Contract of a value less than the threshold fixed by the directive but having a certain cross-border interest—Not included—Obligation to comply with the fundamental rules and general principles of the FUE Treaty—Amendment by the contracting authority of a clause in the tender specifications after publication of the contract notice—Lawfulness—Conditions

   (Arts, 49 TFEU and 56 TFEU; European Parliament and Council Directive 2004/17, as amended by Regulation No 1336/2013)

4. Approximation of laws—Procedures for awarding contracts in the water, energy, transport and postal services sectors—Directive 2004/17—Award of contracts—Qualitative selection criteria—Professional and technical capacity—Possibility to rely on the capacities of other entities—Limits—Requirement of correspondence between the capacity of a subcontractor and its contribution to the services to be supplied—Unlawful

   (European Parliament and Council Directive 2004/17, as amended by Regulation No 1336/2013, Art. 54(6))

1.  See the text of the decision.

   (see para. 27)

2.  As regards a public contract which is not covered by the scope of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, as amended by Commission Regulation (EU) No 1336/2013 of 13 December 2013, but which has a certain cross-border interest, Articles 49 and 56 TFEU must be interpreted as precluding a provision of national law, such as Article 24(5) of the Lietuvos Respublikos viešųjų pirkimų įstatymas (Law on public procurement), which provides that, where subcontractors are relied on for the performance of a public works contract, the tenderer is required to perform itself the main works, as defined by the contracting entity.

   In the case in the main proceedings, it is clear from the documents before the Court, first, that Article 24(5) of the Law on public procurement aims to ensure that the works are properly executed. However, although it is possible that such an objective may justify certain limits on the use of subcontracting (see, to that effect, judgments of 18 March 2004, Siemens and ARGE Telekom, C‑314/01, EU:C:2004:159, paragraph 45, and of 14 July 2016, Wrocław — Miasto na prawach powiatu, C‑406/14, EU:C:2016:562, paragraph 34), it must be held that a provision of a national law, such as Article 24(5) of the Law on public procurement, goes beyond what is necessary in order to achieve that objective, in that it prohibits in a general manner reliance on subcontractors for works treated as ‘main’ works by the contracting entity. That prohibition applies whatever the economic sector concerned by the contract at issue, the nature of the works and the qualifications of the subcontractors. Furthermore, such a general prohibition does not allow for any assessment on a case-by-case basis by that entity. Thus, as the Advocate General observed in point 51 of her Opinion, an alternative less restrictive measure which guarantees the achievement of the objective pursued would have been to require the main contractor to indicate in their tender the proportion of the contract that they intend to contract out, the proposed subcontractors and their capacities. It might also be possible for the contracting entity to prohibit tenderers from changing subcontractors if that entity was not able beforehand to verify the identity and capacity of the latter.

   (see paras 52, 54, 55, 57, 61, operative part 1)

3.  As regards such a public contract, the principles of equal treatment and non-discrimination and the obligation of transparency which derive from Articles 49 and 56 TFEU must be interpreted as meaning that they do not preclude the contracting entity from making changes to a clause in the tender specifications, after publication of the tender notice, relating to the conditions and scheme for combining professional capacities, such as Clause 4.3 at issue in the main proceedings, provided, first, that the changes made are not so substantial that they have attracted potential tenderers which, in the absence of such changes, would not be in a position to submit a tender, second, they are adequately publicised and, third, they are made before the tenderers submit their bids, that the time limit for submitting those tenders is extended when the changes concerned are substantial, the length of that extension depending on the extent of those changes, and that the length of time is sufficient to allow the economic operators concerned to adapt their tender as a consequence, which is for the referring court to ascertain.

   (see para. 77, operative part 2)

4.  Article 54(6) of Directive 2004/17, as amended by Regulation No 1336/2013, must be interpreted as precluding a clause in tender specifications, such as Clause 4.3 at issue in the main proceedings, which, in a case where a common tender is submitted by several tenderers, requires that the contribution of each of them in order to satisfy the requirements applicable with regard to professional capacities correspond, proportionally, to the share of the works that it will actually perform if that bid is successful.

   In that connection, it is of course possible that, taking account of the technical nature and size of the works at issue in the main proceedings, their proper performance requires that, in cases in which a common tender is submitted by several tenderers, each one of them performs specific tasks corresponding to its own professional capacities, having regard to the subject matter or the nature of those works or tasks. However, that does not appear to be the scope of Clause 4.3 of the tender specifications at issue in the main proceedings. As the Advocate General noted essentially, in points 63 and 64 of her Opinion, that clause requires there to be an arithmetic correspondence between the contribution of each of the tenderers concerned to satisfy the requirements applicable with regard to professional capacity and the share of the works that that tenderer undertakes to perform and that it will in fact perform if the contract is awarded. However, that clause does not take account of the nature of the tasks to be carried out or to the technical capacities specific to each of them. In those circumstances, Clause 4.3 does not prevent one of the tenderers concerned from carrying out specific tasks for which it does not in fact have the experience or capacities required.

   (see paras 91, 92, 96, operative part 3)