INGSTEEL spol. sro and Metrostav as v Úrad pre verejné obstarávanie.

• Jurisdiction: European Union
• Celex Number: 62016CJ0076
• ECLI: ECLI:EU:C:2017:549
• Date: 13 July 2017
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-76/16

JUDGMENT OF THE COURT (Second Chamber)

13 July 2017 ( *1 )

(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)

In Case C‑76/16,

REQUEST for a preliminary ruling under Article 267 TFEU from the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic), made by decision of 28 January 2016, received at the Court on 11 February 2016, in the proceedings

Ingsteel spol. s r. o.,

Metrostav a.s.

v

Úrad pre verejné obstarávanie,

intervener:

Slovenský futbalový zväz,

THE COURT (Second Chamber),

composed of M. Ilešič, President of the Chamber, A. Prechal, A. Rosas, C. Toader (Rapporteur) and E. Jarašiūnas, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– the Slovak Government, by B. Ricziová, acting as Agent,

– the European Commission, by A. Tokár, acting as Agent,

after hearing the Opinion of the Advocate General at the sitting on 21 March 2017,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 47(1)(a), (4) and (5) 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 (OJ 2004 L 134, p 114); Articles 1(1) and 2(3) and (6) to (8) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33), as amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 (OJ 2007 L 335, p. 31) (‘Directive 89/665’); and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2 The request has been made in proceedings between, on the one hand, Ingsteel spol. s r. o. and Metrostav a.s. (together, ‘the unsuccessful tenderer’) and, on the other hand, l’Úrad pre verejné obstarávanie (Public Procurement Regulatory Authority, Slovak Republic) concerning a public procurement procedure launched by Slovenský futbalový zväz (Slovak Football Federation, ‘the contracting authority’).

Legal context

EU law

Directive 2004/18

3 Pursuant to Article 91 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 (OJ 2014 L 94, p. 65), Directive 2004/18 was repealed as of 18 April 2016. Given the date of the material facts in the main proceedings, the present reference for a preliminary ruling will be considered by reference to Directive 2004/18, as in force before its repeal.

4 Recital 39 of Directive 2004/18 read as follows: ‘Verification of the suitability of tenderers, in open procedures, and of candidates, in restricted and negotiated procedures with publication of a contract notice and in the competitive dialogue, and the selection thereof, should be carried out in transparent conditions. For this purpose, non-discriminatory criteria should be indicated which the contracting authorities may use when selecting competitors and the means which economic operators may use to prove they have satisfied those criteria. In the same spirit of transparency, the contracting authority should be required, as soon as a contract is put out to competition, to indicate the selection criteria it will use and the level of specific competence it may or may not demand of the economic operators before admitting them to the procurement procedure.’

5 Article 44 of Directive 2004/18, entitled ‘Verification of the suitability and choice of participants and award of contracts’, provided in the second paragraph thereof as follows: ‘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. These minimum levels shall be indicated in the contract notice.’

6 Article 47 of that directive, entitled ‘Economic and financial standing’, provided: ‘1. Proof of an economic operator’s economic and financial standing may, as a general rule, be furnished by one or more of the following references: (a) appropriate statements from banks or, where appropriate, evidence of professional risk indemnity insurance; … 4. Contracting authorities shall specify, in the contract notice or in the invitation to tender, which reference or references mentioned in paragraph 1 they have chosen and which other references must be provided. 5. If, for any valid reason, the economic operator is unable to provide the references requested by the contracting authority, he may prove his economic and financial standing by any other document which the contracting authority considers appropriate.’

7 Article 48 of that directive set out the conditions relating to the technical and/or professional abilities of the economic operators.

Directives 89/665 and 2007/66

8 Recital 36 of Directive 2007/66 states: ‘This Directive respects the fundamental rights and observes the principles recognised in particular by the [Charter]. In particular, this Directive seeks to ensure full respect for the right to an effective remedy and to a fair hearing, in accordance with the first and second subparagraphs of Article 47 of the Charter.’

9 Article 1 of Directive 89/665, entitled ‘Scope and availability of review procedures’, provides: ‘1. This Directive applies to contracts referred to in Directive [2004/18], unless such contracts are excluded in accordance with Articles 10 to 18 of that Directive. … Member States shall take the measures necessary to ensure that, as regards contracts falling within the scope of Directive [2004/18], decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in Articles 2 to 2f of this Directive, on the grounds that such decisions have infringed Community law in the field of public procurement or national rules transposing that law. … 3. Member States shall ensure that the review procedures are available, under detailed rules which the Member States may establish, at least to any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement. … 5. Member States may require that the person concerned first seek review with the contracting authority. In that case, Member States shall ensure that the submission of such an application for review results in immediate suspension of the possibility to conclude the contract. … The suspension referred to in the first subparagraph shall not end before the expiry of a period of at least 10 calendar days with effect from the day following the date on which the contracting authority has sent a reply if fax or electronic means are used, or, if other means of communication are used, before the expiry of either at least 15 calendar days with effect from the day following the date on which the contracting authority has sent a reply, or at least 10 calendar days with effect from the day following the date of the receipt of a reply.’

10 Article 2 of that directive, which governs the requirements for review procedures, states: ‘1. Member States shall ensure that the measures taken concerning the review procedures specified in Article 1 include provision for the powers to: (a) take, at the earliest opportunity and by way of interlocutory procedures, interim measures with the aim of correcting the alleged infringement or preventing further damage to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a public contract or the implementation of any decision taken by the contracting authority; (b) either set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discriminatory technical, economic or financial specifications in the invitation to tender, the contract documents or in any other document relating to the contract award procedure; (c) award damages to persons harmed by an infringement. 2. The powers specified in paragraph 1 and Articles 2d and 2e may be conferred on separate bodies responsible for different aspects of the review procedure. 3. When a body of first instance, which is independent of the contracting authority, reviews a contract award decision, Member States shall ensure that the contracting authority cannot conclude the contract before the review body has made a decision on the application either for interim measures or for review. The suspension shall end no earlier than the expiry of the standstill period referred to in Article 2a(2) and Article 2d(4) and (5). 4. Except where provided for in paragraph 3 and Article 1(5), review procedures need not necessarily have an automatic suspensive effect on the contract award procedures to which they relate. … 6. Member States may...