In the case C-642/20 that led to the ruling of 28 April 2022, a public tender was awarded to a temporary association of undertakings. The Tribunale administrative regionale per la Sicilia annulled this award based on Italian legislation which provides that in case of a group of economic operators where recourse has been had to reliance on the capacities of other entities, the agent must in any event fulfil the majority of the requirements and provide the majority of the services.
In this case, the agent did not fulfil the two conditions mentioned above.
An appeal was lodged against the said judgment and the Consiglio di giustizia amminstrativa per la Regione siciliana referred the matter to the Court of Justice, considering that the interpretation given by the court of first instance to the Public Procurement Code could be contrary to Article 63 of Directive 2014/24. Indeed, this article does not appear to limit the possibility for an economic operator to have recourse to the capacities of third-party operators.
The CJUE began by recalling what Article 63 of the Directive provides, namely
• In paragraph 1: to fulfil the selection criteria a group of economic operators may rely on the capacities of participants in the group or of other entities.
• In paragraph 2: In the case of works contracts, service contracts and siting or installation operations in the context of a supply contract, contracting authorities may require that certain critical tasks be performed directly by the tenderer itself or, where the tender is submitted by a group of economic operators by a participant in that group.
The CJUE went on to find that the national legislation in question lays down a more stringent condition than that provided for by Directive 2014/24.
Under the regime established by the Directive, it is the contracting authority which may require that certain critical tasks be performed by a participant in the group of economic operators. In the present case, however, it is the national legislator that horizontally imposes for all public contracts in Italy that the agent must in any event fulfil the majority of the requirements and provide the majority of the services.
Thirdly, the CJUE recalled that it is true that under Article 19(2)(2) Directive 2014/24 Member States may establish standard terms for how groups of economic operators are to meet the requirements as to economic and financial standing or technical and professional ability
The CJUE held, however, that even if the ability to perform critical tasks fell within the concept of technical ability which would allow the national legislator to include it in the standard terms, the Italian rule at issue went beyond that which was permitted by the Directive. The CJUE considered that the legislation at issue is not limited to specifying the manner in which a group of economic operators must guarantee its possession of human and technical resources but relates to the performance of the contract itself and requires in this respect that the majority of the work be carried out by the agent.
Finally, as regards the "critical tasks" referred to in Article 63(2) of the Directive, the CJUE considered that it is clear from the Directive that the intention of the European legislator is to limit that which can be imposed on a single operator in a group of economic operators in accordance with a qualitative and not merely quantitative approach in order to encourage the participation of small and medium-sized enterprises in public contracts.
The Court thus concluded that Article 63 of the Directive must be interpreted as precluding the Italian legislation at issue.
Please contact Peter Teerlinck or Raluca Gherghinaru for further information about this case and/or for general legal advice relating to public procurement.