Court of Justice of the European Communities (including Court of First Instance Decisions)

OPINION OF ADVOCATE GENERAL

WATHELET

delivered on 4 June 2015 (1)

Case C‑234/14

Ostas celtnieks SIA

v

Talsu novada pašvaldība,

Iepirkumu uzraudzības birojs

(Request for a preliminary ruling from the Augstākā tiesa (Latvia))

(Request for a preliminary ruling — Public contracts — Directive 2004/18/EC — Articles 47(2) and 48(3) — Economic operator relying on the capacities of other entities — Obligation to conclude a cooperation agreement or form a partnership with those other entities — Clause on the joint and several liability of the tenderer and other entities)

I –  Introduction

1.        The request for a preliminary ruling, lodged at the Registry of the Court of Justice on 12 May 2014, has been made in proceedings between Ostas celtnieks SIA (‘Ostas celtnieks’), on the one hand, and Talsu novada pašvaldība (the municipality of Talsi, ‘the Authority’) and Iepirkumu uzraudzības birojs (Office for the Supervision of Public Contracts (‘the Office’), on the other hand.

2.        The Authority launched a public procurement procedure for the improvement of road infrastructures in order to facilitate access to Talsi. The specifications of the call for tenders issued by the Authority provided in particular that, in the event of a tenderer relying on the capacities of other entities, it must, before concluding the contract, conclude a cooperation agreement with those entities or form a partnership. The cooperation agreement must provide in particular for the joint and several liability of the tenderer and the other entities.

3.        Ostas celtnieks contests the legality of those tender specification conditions.

4.        This request for a preliminary ruling concerns the interpretation 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. (2) The referring court raises the question, in particular, of whether or not that directive precludes the insertion into tender specifications of conditions such as those provided for in the main proceedings.

II –  Legal framework

A –    EU law

5.        Recital 45 in the preamble to Directive 2004/18 states:

‘This Directive allows Member States to establish official lists of contractors, suppliers or service providers or a system of certification by public or private bodies, and makes provision for the effects of such registration or such certification in a contract award procedure in another Member State. As regards official lists of approved economic operators, it is important to take into account Court of Justice case-law in cases where an economic operator belonging to a group claims the economic, financial or technical capabilities of other companies in the group in support of its application for registration. In this case, it is for the economic operator to prove that those resources will actually be available to it throughout the period of validity of the registration. For the purposes of that registration, a Member State may therefore determine the level of requirements to be met and in particular, for example where the operator lays claim to the financial standing of another company in the group, it may require that that company be held liable, if necessary jointly and severally.’

6.        Article 4(2) of Directive 2004/18 provides as follows:

‘Groups of economic operators may submit tenders or put themselves forward as candidates. In order to submit a tender or a request to participate, these groups may not be required by the contracting authorities to assume a specific legal form; however, the group selected may be required to do so when it has been awarded the contract, to the extent that this change is necessary for the satisfactory performance of the contract.’

7.        According to Article 25 of that directive:

‘In the contract documents, the contracting authority may ask or may be required by a Member State to ask the tenderer to indicate in his tender any share of the contract he may intend to subcontract to third parties and any proposed subcontractors.

This indication shall be without prejudice to the question of the principal economic operator’s liability.’

8.        According to Article 26 of that directive:

‘Contracting authorities may lay down special conditions relating to the performance of a contract, provided that these are compatible with [Union] law and are indicated in the contract notice or in the specifications. The conditions governing the performance of a contract may, in particular, concern social and environmental considerations.’

9.        Article 44 of that directive provides:

‘1.   Contracts shall be awarded ... after the suitability of the economic operators not excluded ... has been checked by contracting authorities in accordance with the criteria of economic and financial standing, of professional and technical knowledge or ability referred to in Articles 47 to 52 ... .

2.      The contracting authorities may require candidates and tenderers to meet minimum capacity levels in accordance with Articles 47 and 48.

The extent of the information referred to in Articles 47 and 48 and the minimum levels of ability required for a specific contract must be related and proportionate to the subject-matter of the contract.

...’

10.      Article 47(2) and (3) of Directive 2014/18 provides:

‘2.      An economic operator may, where appropriate and for a particular contract, rely on the capacities of other entities, regardless of the legal nature of the links which it has with them. It must in that case prove to the contracting authority that it will have at its disposal the resources necessary, for example, by producing an undertaking by those entities to that effect.

3.      Under the same conditions, a group of economic operators as referred to in Article 4 may rely on the abilities of participants in the group or of other entities.’

11.      Article 48(3) and (4) of that directive provides:

‘3.      An economic operator may, where appropriate and for a particular contract, rely on the capacities of other entities, regardless of the legal nature of the links which it has with them. It must in that case prove to the contracting authority that it will have at its disposal the resources necessary for the execution of the contract, for example, by producing an undertaking by those entities to place the necessary resources at the disposal of the economic operator.

4.      Under the same conditions a group of economic operators as referred to in Article 4 may rely on the abilities of participants in the group or in other entities.’

B –    National law

12.      The Law on public contracts [Publisko iepirkumu likums, Latvijas Vĕstnesis, 2006, No 65 (3433)] transposes Directive 2004/18 into Latvian law.

13.      It is clear from the request for a preliminary ruling that that law provides, in Article 41 (‘Economic and financial standing’), paragraph 3, and Article 42 (‘Technical and/or professional ability’), paragraph 3, that a successful tenderer may rely on the capacities of other contractors, regardless of the legal nature of the links which it has with them, where this is necessary for the performance of a particular contract. In such a case, the successful tenderer must prove to the contracting authority that it will have at its disposal the necessary resources, by producing those contractors’ attestations or agreements. (3)

14.      The basic rules for cooperation agreements are laid down in the Latvian Civil Code, and the conditions imposed on economic operators for the establishment and operation of partnerships are set out in Title IX of that code.

III –  The facts in the main proceedings and the question referred for a preliminary ruling

15.      The Authority launched a public procurement procedure for the improvement of road infrastructures.

16.      Paragraph 9.5 of the tender specifications, approved on 29 November 2011, is worded as follows:

‘… in the event of the tenderer relying on the capacities of other contractors, it must indicate all the contractors involved and provide evidence that it will have at its disposal the resources necessary. If it is decided that the contract is to be awarded to that tenderer, it must, prior to the award of the contract, conclude a cooperation agreement with the contractors concerned and forward that agreement to the contracting authority.’

17.      According to the referring court, the cooperation agreement must include:

‘(1) a clause stipulating that each party is to be jointly and severally liable for the performance of the contract;

(2) [an indication of] the main economic operator, which shall have all the necessary powers to sign the contract and to direct its performance;

(3) a description of the part of the works to be completed by each of the participants;

(4) the volume of the works which each participant is to carry out, expressed as a percentage.

The conclusion of a cooperation agreement may be replaced by the formation of a partnership.’

18.      Ostas celtnieks challenged before the Office several conditions in the tender specifications and, in particular, paragraph 9.5.

19.      By decision of 13 February 2012, the Office upheld the Ostas celtnieks’ objections to some of the paragraphs, but dismissed those relating to paragraph 9.5 of the specifications. The Office stated that, by that paragraph, the contracting authority in fact lays down the manner in which the successful tenderer may demonstrate to the contracting authority that it will have at its disposal for the duration of the contract the necessary resources which it is relying on.

20.      Ostas celtnieks lodged an administrative appeal before the Administratīvā rajona tiesa (District Administrative Court) seeking a declaration that the Office’s decision was unlawful in certain respects and, in particular, with reference to paragraph 9.5 of the tender specifications.

21.      By judgment of 7 May 2013, the Administratīvā rajona tiesa declared that paragraph 9.5 of the tender specifications was in part unlawful.

22.      According to that court, it is not clear either from the Latvian Law on public contracts or from Directive 2004/18 that the contracting authority may impose on a tenderer an obligation to produce an undertaking that it will conclude a cooperation agreement with other entities on whose capacities it is relying or require the tenderer to conclude such an agreement or form a partnership with those entities. The Administratīvā rajona tiesa considers that an economic operator may rely on the capacities of other entities for a particular contract, regardless of the legal nature of the links which it has with them.

23.      The Authority and the Office brought appeals on a point of law against that decision before the referring court. They claim in those appeals that paragraph 9.5 of the tender specifications is justified in order to reduce the risk of non-performance of the contract, since, without the requirement to conclude an agreement, the adjudicating authority cannot verify that the contract will be performed in accordance with the tender submitted and that the contractors on whose capacities the tenderer is relying will abide by their undertakings.

24.      The Authority and the Office consider that the wording ‘regardless of the legal nature of the links which it has with them’, (4) refers generally to the links existing between a tenderer and the contractor whose capacities it is relying on. They take the view that the Latvian Law on public contracts does not state in what manner the tenderer may prove to the contracting authority that it will have at its disposal the necessary resources and that this matter is therefore left to the discretion of the contracting authority.

25.      They consider, in addition, that, since the Latvian Law on public contracts transposed the provisions of Directive 2004/18, it is also necessary to take into account the interpretation of the provisions of that directive in the Court’s case-law. They also point out that, in the judgments in Ballast Nedam Groep (C‑389/92, EU:C:1994:133) and Ballast Nedam Groep (C‑5/97, EU:C:1997:636), the Court held that, in order to minimise the risks run by the contracting authority, that authority should verify that the tenderers actually have the relevant resources at their disposal.

26.      The referring court states that it is clear from a number of judgments of the Court that the contracting authority should also check the subcontractors’ capacity to perform the contract. (5)

27.      It notes, in particular, that, in paragraph 33 of the judgment in Swm Costruzioni 2 and Mannocchi Luigino (C‑94/12, EU:C:2013:646), the Court held ‘that 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 performance of the contract’.

28.      In the referring court’s view, the contracting authority not only may but must verify the tenderer’s capacity to perform the contract. However, it considers that it has not been clearly settled whether the contracting authority may decide that the only permissible procedures for obtaining extra capacity are the formation of a certain type of company or the conclusion of a cooperation agreement or whether, on the contrary, the tenderer is free to choose the manner in which it will obtain the extra capacity.

29.      In those circumstances, the Augstākā tiesa has decided to stay proceedings and to refer the following question to the Court for a preliminary ruling:

‘Must the provisions of Directive 2004/18/EC be interpreted as meaning that, in order to reduce the risk of non-performance of the contract, they do not preclude the specifications from containing the condition that, in the event of the contract being awarded to a tenderer which relies on the capacities of other contractors, that tenderer must, before the contract is awarded, conclude with those entities a cooperation agreement (which includes the particular items set out in the specifications), or set up a partnership with them?’

IV –  Procedure before the Court

30.      Written observations have been submitted by the Latvian and Greek Governments and by the European Commission. At the hearing held on 16 April 2015, Ostas celtnieks, the Latvian Government and the Commission presented oral argument.

V –  Analysis

A –    Preliminary observations

31.      It should be noted that, although the question addressed to the Court of Justice by the referring court does not specify any particular provision of Directive 2004/18, the request for a preliminary ruling refers to Article 25 (‘Subcontracting’), Article 26 (‘Conditions for performance of contracts’), Article 47 (‘Economic and financial standing’) and Article 48 (‘Technical and/or professional ability’) thereof and to recital 45 in the preamble thereto.

32.      It is also clear from the order for reference that the dispute in the main proceedings concerns only paragraph 9.5 of the tender specifications at issue, which provides that, in the event of the tenderer relying on the capacities of other entities, it must indicate all the entities involved and provide evidence to the contracting authority that it will have at its disposal all the resources necessary for the execution of the contract, by producing an undertaking from those entities to conclude a cooperation agreement (6) or form a partnership with the tenderer before the contract is awarded.

33.      I therefore consider that the question referred to the Court by the referring court is aimed at determining whether Article 47(2) of Directive 2004/18 (on the economic and financial standing of economic operators participating in an award procedure) and Article 48(3) thereof (on the technical and/or professional ability of those operators) preclude a tender specification clause which imposes on a tenderer relying on the capacities of other entities an obligation to conclude a cooperation agreement or form a partnership with them before the contract is awarded.

34.      However, in the Commission’s view, the wording of that paragraph of the tender specifications suggests that the specific provision on the conclusion of a cooperation agreement or the formation of a partnership concerns only the stage following selection and prior to the award of the contract and relates only to the successful tenderer to which the contracting authority intends to award the contract. Therefore, that specific provision is consistent with the conditions relating to the performance of a contract as laid down in Article 26 of Directive 2004/18.

35.      I consider, subject to verification by the referring court, that the requirements laid down by paragraph 9.5 of the tender specifications relate to the minimum levels, first, of economic and financial standing and, secondly, of technical and/or professional ability required by the contracting authority, for the purposes of Articles 44(2), 47 and 48 of Directive 2004/18, which a tenderer must satisfy for its tender to be taken into consideration (7) and not to the conditions for performance of contracts, for the purposes of Article 26 of that directive. Although, pursuant to that Article 26, the contracting authorities may lay down special conditions on performance in the contract notice or tender specifications, it appears that, in view of the examples which it gives of performance conditions, namely that they ‘may, in particular concern social and environmental considerations’, (8) that article does not concern the economic and financial standing or the technical and/or professional ability of the tenderer to perform the contract, requirements which are covered by Articles 44(2), 47 and 48 of Directive 2004/18.

36.      Moreover, the obligations of a tenderer relying on the capacities of other entities, first, to prove to the contracting authority that it will have at its disposal all the resources necessary for the execution of the contract by producing an undertaking from those entities to conclude a cooperation agreement and, secondly, to conclude a cooperation agreement or form a partnership with those entities before the contract is awarded are closely linked and must not be artificially separated.

37.      Those obligations concern the tenderer’s economic and financial standing and its technical and professional ability and, in particular, the manner in which, under Articles 47 and 48 of Directive 2004/18, the tenderer must prove that it will have at its disposal the resources necessary for the execution of the contract, if, inter alia, it uses subcontractors. Non-compliance with those obligations is a reason for its exclusion from the contract award procedure.

B –    Articles 47(2) and 48(3) of Directive 2004/18

38.      The EU rules do not require that a person who enters into a contract with a contracting authority must be capable of direct performance using his own resources. The person in question need only be able to arrange for execution of the works in question and to furnish the necessary guarantees in that connection. It follows from both EU rules and the Court’s case-law that any person or entity which, in the light of the conditions laid down in a contract notice, believes that it is capable of carrying out the contract, either directly or by using subcontractors, is eligible to submit a tender or put itself forward as a candidate for a public contract. Whether such an entity is actually able to satisfy the conditions laid down in the contract notice must be assessed at a later stage in the procedure, by applying the criteria set out in Articles 44 to 52 of Directive 2004/18. (9)

39.      ‘Under the first subparagraph of Article 44(2) of Directive 2004/18, a contracting authority may require candidates or tenderers to meet minimum levels of economic and financial standing and technical and professional ability in accordance with Articles 47 and 48 of that directive. For that purpose, the contracting authority must take account of the right conferred on every economic operator by Articles 47(2) and 48(3) of Directive 2004/18 to rely on, for a particular contract, the capacities of other entities, regardless of the nature of the links which it has with them, provided that it proves to the contracting authority that it will have at its disposal the resources necessary for the execution of the contract’. (10)

40.      I note, in that regard, that, although every economic operator has the right to rely on, for a particular contract, the capacities of other entities, it must establish that it actually has at its disposal the means and resources of those entities or undertakings which it does not itself own and which are necessary for the performance of the contract. (11)

41.      As Article 44(1) of Directive 2004/18 states, the contracting authority must verify the tenderer’s ability to provide it with an assurance that it will indeed be able to use whatever resources it relies on throughout the period covered by the contract. (12)

42.      In the context of that verification, Directive 2004/18 does not permit the exclusion, without due analysis, of specific types of proof or the assumption that the tenderer has available to it the resources needed to perform the contract. (13)

43.      Although Articles 47(2) and 48(3) of Directive 2004/18 state that, ‘for example’, producing an undertaking by other entities that they will make the necessary resources available to the tenderer is an acceptable form of proof, those provisions in no way exclude other forms of proof. (14)

C –    Paragraph 9.5 of the tender specifications

44.      By obliging a tenderer to conclude a cooperation agreement with the entities on whose capacities it wishes to rely or to form a company with them before the contract is awarded, paragraph 9.5 of the tender specifications leaves the tenderer only one way of proving that it has at its disposal the resources of other entities.

45.      That obligation seems to me to be contrary to the very wording of Articles 47(2) and 48(3) of Directive 2004/18, which cites, by way of example, a form of proof which can be used by an economic operator relying, for a specific contract, on the capacities of other entities, which, by definition, not only does not impose that form of proof but does not exclude any other form.

46.      Moreover, by imposing that obligation, paragraph 9.5 of the tender specifications prohibits the use of the form of proof cited in Articles 47 and 48 of Directive 2004/18.

47.      I also consider that, by imposing on the tenderer just one way of proving that it is qualified and that it has at its disposal the resources of other entities, paragraph 9.5 of the tender specifications infringes the principle of proportionality. (15)

48.      Although the objective of ensuring performance of the contract is a legitimate objective in the public interest, the obligation imposed by paragraph 9.5 of the tender specifications clearly goes beyond what is necessary to achieve that objective. By imposing between the tenderer and the other entities to which it has recourse a limitation based on the legal form of their relationship which is not provided for in Articles 47(2) and 48(3) of Directive 2004/18, paragraph 9.5 of the tender specifications has the effect of substantially and unjustifiably limiting a tenderer’s right to rely on the capacities of those entities and, consequently, the widest possible participation by tenderers (16) in public procurement procedures, whereas it is the concern of the European Union, in relation to the freedom of establishment and the freedom to provide services, to ensure the widest possible opening-up of a call for tenders to competition. (17)

49.      Moreover, the tenderer’s obligations to conclude a cooperation agreement or form a partnership with the entities on whose technical and/or professional ability, for example, it relies before the contract is awarded and to include in the cooperation agreement a clause stipulating that the tenderer and the other entities are jointly and severally liable for the performance of the contract, regardless of the share of the contract that it intends to subcontract, clearly have a deterrent effect on that form of economic cooperation. (18) One might even question the effectiveness of the measure for achieving the objective of ensuring the performance of the contract, as it is difficult to imagine that the undertaking with the technical and professional ability relied upon will accept joint financial liability even though only a minimal share of the contract will be subcontracted to it.

50.      Finally, paragraph 9.5 of the tender specifications, by infringing, for example, a tenderer’s right under Article 25 of Directive 2004/18 to subcontract part of the performance of the contract in question, limits the involvement of small- and medium-sized undertakings in the contracts procurement market. (19)

D –    Subcontracting or group of economic operators

51.      The Latvian Government considers that operators, as well as any subcontractors on whose capacities the tenderer relies, constitute, from the contracting authority’s viewpoint, a group of economic operators which is potentially the undertaking performing the contract. It points out that, under Article 4(2) of Directive 2004/18, ‘these groups may not be required by the contracting authorities to assume a specific legal form; however, the group selected may be required to do so when it has been awarded the contract, to the extent that that change is necessary for the satisfactory performance of the contract’. The Latvian Government states that it is clear from that provision that, in order to ensure that the contract is performed, the contracting authority is entitled to ask the group of operators to assume a specific legal form. In other words, on that basis, it is lawful, in practice, for paragraph 9.5 of the tender specifications at issue to impose on economic operators intending to rely on subcontractors (20) the obligation to form a group of economic operators with those subcontractors.

52.      I note, first of all, that, as laid down in Article 4(2) of Directive 2004/18, the obligation of groups of economic operators to assume a specific legal form after the contract has been awarded ‘to the extent that this change is necessary for the satisfactory performance of the contract’ (21) is, in my view, an exceptional requirement which is imposed only where it is objectively necessary and in accordance with the principle of proportionality. Neither of these factors is relied on in the present case.

53.      More fundamentally, although contracting authorities may, in certain cases, require a specific legal form after awarding the contract to a group of economic operators, they cannot impose the formation of such a group by a tenderer and the subcontractors on which it relies, as Directive 2004/18 leaves it to the tenderer to decide whether to subcontract a share of the contract to third parties (Article 25) or to form with other entities a group of economic operators and to tender jointly for a specific contract (Article 4(2)).

54.      Paragraph 9.5 of the tender specifications links those two possibilities which are clearly distinct (22) and, at the very least, according to the Latvian Government’s argument, would oblige a tenderer which relies on subcontractors to change that form of cooperation into a group of economic operators.

55.      Finally, under Articles 47(2) and 48(3) of Directive 2004/18, a tenderer participating in the selection procedure has the right to choose the form of cooperation with other entities for the purpose of meeting the economic and financial standing requirements in question.

56.      It follows that paragraph 9.5 deprives Articles 47(2) and 48(3) of Directive 2004/18 of any practical effect and inappropriately applies the provisions of Article 4(2) of that directive.

VI –  Conclusion

57.      In the light of the foregoing considerations, I propose that the Court of Justice should reply to the question referred for a preliminary ruling by the Augstākā tiesa (Latvia) as follows:

Articles 47(2) and 48(3) 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 they preclude a condition in the tender specifications imposing on a tenderer which relies on the capacities of other entities the obligation to conclude a cooperation agreement or form a partnership with them before the contract is awarded.

1 – Original language: French.

2 – OJ 2009 L 134, p. 114, and corrigendum OJ 2009 L 351, p. 44.

3 – It should be noted that the dispute in the main proceedings does not concern the conformity of the provisions of national law with EU law. Ostas celtnieks only disputes the legality of some of the tender specification conditions for the contract in question. See points 16 to 18 of this Opinion. Moreover, in response to a question put by President Tizzano at the hearing, the Latvian Government informed the Court that the contract in question in the main proceedings was a works contract with a value of around EUR 3 million, which is lower than the threshold laid down by the directive for that type of contract (see Article 7(c) of Directive 2004/18). However, the Latvian Government stated that the Latvian legislation made Directive 2004/18 applicable to a works contract for an amount such as that of the contract in question.

4 – See Article 41 (‘Economic and financial standing’), paragraph 3, and Article 42 (Technical and/or professional ability’), paragraph 3, of the Latvian Law on public contracts, and Articles 47(2) and 48(3) of Directive 2004/18.

5 – See, in particular, judgments in Ballast Nedam Groep (C‑389/92, EU:C:1994:133, paragraph 16) and Holst Italia (C‑176/98, EU:C:1999:593, paragraphs 28 and 29).

6 – The Latvian Government states that ‘“[a] partnership is a union of two or more persons on the basis of a partnership agreement aimed at achieving common objectives using common means or resources”. Article 2257 of the Latvian Civil Code regulates the liability of participants in a partnership to the effect that commitments entered into by a partnership are jointly and severally binding on all of its members with respect to third persons’.

7 – See, by analogy, judgment in Commission v Netherlands (C‑368/10, EU:C:2012:284, paragraphs 103 and 104). It seems, subject to verification by the referring court, that paragraph 9.5 refers, in particular, to the requirements of Annex 1 to the tender specifications entitled ‘Financial tender’ and to Annex 2 thereto entitled ‘Qualification’.

8 – See, to that effect, judgment in Commission v Netherlands (C‑368/10, EU:C:2012:284, paragraph 76).

9 –      See, to that effect, judgment in CoNISMa (C‑305/08, EU:C:2009:807, paragraphs 41 and 42 and the case-law cited).

10 – See judgment in Swm Costruzioni 2 and Mannocchi Luigino (C‑94/12, EU:C:2013:646, paragraphs 28 and 29). Emphasis added. Articles 47(2) and 48(3) of Directive 2004/18 codify the settled case-law of the Court relating to earlier public procurement directives. See Opinion of Advocate General Jääskinen in Swm Costruzioni 2 and Mannocchi Luigino (C‑94/12, EU:C:2013:130, point 20).

11 – See, to that effect, judgments in Holst Italia (C‑176/98, EU:C:1999:593, paragraph 29) and Siemens and ARGE Telekom (C‑314/01, EU:C:2004:159, paragraphs 43 and 44). It follows that the burden of proof falls on the tenderer relying on the capacities of third persons. In paragraph 35 of the judgment in Swm Costruzioni 2 and Mannocchi Luigino (C‑94/12, EU:C:2013:646), the Court held that ‘it is true that there may be works with special requirements necessitating a certain capacity which cannot be obtained by combining the capacities of more than one operator. In such circumstances, the contracting authority would be justified in requiring that the minimum capacity level concerned be achieved by a single economic operator or, where appropriate, by relying on a limited number of economic operators, in accordance with the second subparagraph of Article 44(2) of Directive 2004/18, as long as that requirement is related and proportionate to the subject-matter of the contract at issue.’ It follows that the Court accepts that there may be exceptional circumstances where, in view of the very nature of the contract at issue, a tenderer’s reliance on the capacities of other entities may be limited. The request for a preliminary ruling makes no reference to the existence of such exceptional circumstances in the main proceedings.

12 – See, to that effect, judgment in Holst Italia (C‑176/98, EU:C:1999:593, paragraph 28).

13 – Ibid. (paragraph 30).

14 – ‘Both Articles 47(2) and 48(3) of Directive 2004/18 provide in almost identical terms that “an economic operator may … rely on the capacities of other entities”. The wording suggests the recognition of a right of economic operators to choose this method of fulfilling the selection criteria, provided that they can prove that they actually have at their disposal the resources of the other entities necessary for executing the contract.’ See Opinion of Advocate General Jääskinen in Case Swm Costruzioni 2 and Mannocchi Luigino (C‑94/12, EU:C:2013:130, point 24).

15 – In accordance with the principle of proportionality, which constitutes a general principle of EU law, the measures adopted by the Member States must not go beyond what is necessary to achieve a legitimate objective. See, to that effect, judgment in Serrantoni and Consorzio stabile edili (C‑376/08, EU:C:2009:808, paragraph 33 and the case-law cited).

16 – See, by analogy, judgment in CoNISMa (C‑305/08, EU:C:2009:807, paragraph 37).

17 – See, to that effect, judgments in Consorzio Stabile Libor Lavori Pubblici (C‑358/12, EU:C:2014:2063, paragraph 29) and Swm Costruzioni 2 and Mannocchi Luigino (C‑94/12, EU:C:2013:646, paragraph 34). ‘The objective of widest possible opening-up to competition is regarded not only from the interest in the free movement of goods and services, but also in regard to the interest of contracting authorities, who will thus have greater choice as to the most advantageous tender’. See Opinion of Advocate General Jääskinen in Case Swm Costruzioni 2 and Mannocchi Luigino (C‑94/12, EU:C:2013:130, point 32).

18 – It should be noted that Article 63(1) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65) provides that ‘[w]here an economic operator relies on the capacities of other entities with regard to criteria relating to economic and financial standing, the contracting authority may require that the economic operator and those entities be jointly liable for the execution of the contract’. Emphasis added. However, I note, first, that that provision, which must be transposed by the Member States by 18 April 2016 pursuant to Article 90 of Directive 2014/24, is not applicable ratione temporis to the dispute in the main proceedings and, secondly, that the provision only concerns circumstances in which the tenderer relies on the capacities of other entities in respect of criteria relating to economic and financial standing and not those relating to technical and/or professional ability. Moreover, that provision requires only that the tenderer and the other entities be jointly liable for the performance of the contract without imposing, as in the main proceedings, a particular legal form of cooperation between them. It is also logical that only reliance on ‘economic and financial standing’ should be linked to joint liability.

19 – See, to that effect, judgment in Swm Costruzioni 2 and Mannocchi Luigino (C‑94/12, EU:C:2013:646, paragraph 34 and the case-law cited).

20 – See, to that effect, judgment in Ordine degli Architetti and Others (C‑399/98, EU:C:2001:401, paragraphs 90 and 91).

21 – Emphasis added.

22 – See, to that effect, judgment in Holst Italia (C‑176/98, EU:C:1999:593, paragraph 24). See also Articles 47(3) and 48(4) of Directive 2004/18.

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