CJEU, 7th chamber, October 18, 2012, No C-218/11

THE COURT (Seventh Chamber),

1 This reference for a preliminary ruling concerns the interpretation of Articles 44(2) and 47(1)(b), (2) 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).

2 The reference has been made by the Fovárosi Ítélotábla (Budapest Court of Appeal), sitting in an appeal against a decision of the Közbeszerzések Tanácsa Közbeszerzési Döntobizottság (Public Procurement Arbitration Board of the Public Procurement Council), the administrative arbitration authority. The decision was made in a dispute between Hochtief Construction AG Magyarországi Fióktelepe, now Hochtief Solutions AG Magyarországi Fióktelepe ('Hochtief Hungary'), the Hungarian subsidiary of Hochtief Solutions AG, a company incorporated under German law, and Észak-dunántúli Környezetvédelmi és Vízügyi Igazgatóság (Édukövízig) (North Transdanubia Environmental Protection and Water Management Directorate, 'Édukövízig') regarding a restricted tendering procedure launched by the latter body. In those proceedings, brought by Hochtief Hungary, the arbitration authority is the defendant and Édukövízig is an applicant, together with Hochtief Hungary.

Legal context

European Union law

Directive 2004-18

3 Directive 2004-18 includes the following recitals:

'...

(2) The award of contracts concluded in the Member States on behalf of the State, regional or local authorities and other bodies governed by public law entities, is subject to the respect of the principles of the Treaty and in particular to the principle of freedom of movement of goods, the principle of freedom of establishment and the principle of freedom to provide services and to the principles deriving therefrom, such as the principle of equal treatment, the principle of non-discrimination, the principle of mutual recognition, the principle of proportionality and the principle of transparency. However, for public contracts above a certain value, it is advisable to draw up provisions of Community coordination of national procedures for the award of such contracts which are based on these principles so as to ensure the effects of them and to guarantee the opening-up of public procurement to competition. These coordinating provisions should therefore be interpreted in accordance with both the aforementioned rules and principles and other rules of the Treaty.

...

(39) 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.

(40) A contracting authority may limit the number of candidates in the restricted and negotiated procedures with publication of a contract notice, and in the competitive dialogue. Such a reduction of candidates should be performed on the basis of objective criteria indicated in the contract notice. These objective criteria do not necessarily imply weightings. For criteria relating to the personal situation of economic operators, a general reference in the contract notice to the situations set out in Article 45 may suffice.

...'

4 Under Article 2 of Directive 2004-18, entitled 'Principles of awarding contracts':

'Contracting authorities shall treat economic operators equally and non-discriminatorily and shall act in a transparent way.'

5 Article 44 of the Directive, entitled 'Verification of the suitability and choice of participants and award of contracts', provides:

'1. Contracts shall be awarded on the basis of the criteria laid down in Articles 53 and 55 ... after the suitability of the economic operators ... 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, and, where appropriate, with the non-discriminatory rules and criteria referred to in paragraph 3.

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.

These minimum levels shall be indicated in the contract notice.

3. In restricted procedures, negotiated procedures with publication of a contract notice and in the competitive dialogue procedure, contracting authorities may limit the number of suitable candidates they will invite to tender, to negotiate or to conduct a dialogue with, provided a sufficient number of suitable candidates is available. The contracting authorities shall indicate in the contract notice the objective and non-discriminatory criteria or rules they intend to apply ...

...'

6 Article 47 of the Directive, entitled 'Economic and financial standing', provides:

'1. Proof of the 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 relevant professional risk indemnity insurance;

(b) the presentation of balance-sheets or extracts from the balance-sheets, where publication of the balance-sheet is required under the law of the country in which the economic operator is established;

(c) a statement of the undertaking's overall turnover and, where appropriate, of turnover in the area covered by the contract for a maximum of the last three financial years available, depending on the date on which the undertaking was set up or the economic operator started trading, as far as the information on these turnovers is available.

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 capacities of participants in the group or of other entities.

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.'

Directive 78-660-CEE

7 As is apparent from its first recital, Fourth Council Directive 78-660-EEC of 25 July 1978 based on Article [44(2)(g)] of the Treaty on the annual accounts of certain types of companies (OJ 1978 L 222, p. 11), brought about the harmonisation of national provisions concerning, inter alia, the presentation and content of annual accounts and valuation methods and publication thereof in respect of certain companies with limited liability. Article 1(1) of that directive, which lists the types of companies concerned, includes, as regards the Federal Republic of Germany, the 'Aktiengesellschaft'.

8 However, the harmonisation brought about by that directive is only partial. Thus, it includes the provision, in Article 6, that the Member States may authorise or require adaptation of the layout of the balance sheet and profit and loss account in order to include the appropriation of profit.

German and Hungarian law

9 It is clear from the order for reference that both the German and the Hungarian legislation on the annual accounts of companies provide that the item on the balance sheet relating to profit or loss must take account of the distribution of dividends. However, while the Hungarian legislation authorises that practice only where it does not have the effect of making that item in the balance sheet negative, the German legislation does not provide for any such restriction, at least as regards the transfer of profits from a subsidiary to a parent company.

The dispute in the main proceedings and the questions referred for a preliminary ruling

10 By notice published in the Official Journal of the European Union of 25 July 2006, Édukövízig launched a restricted procedure for awarding a public contract for transport infrastructure works. According to the file, the estimated value of those works was between HUF 7.2 and HUF 7.5 billion or between EUR 23 300 000 and EUR 24 870 000 approximately.

11 As regards the economic and financial standing of the candidates, the awarding authority required the production of a uniform document, drawn up in accordance with the accounting rules, and fixed a minimum level in so far as it required requiring that the profit/loss item in the balance sheet should not have been negative for more than one of the last three completed financial years ('the economic requirement').

12 Hochtief AG is the parent company of the group to which Hochtief Solutions AG, a wholly owned subsidiary, belongs. They are companies incorporated under German law. Hochtief Hungary is the Hungarian subsidiary of Hochtief Solutions AG. According to the order for reference, Hochtief Hungary has, at the very least, the option of relying exclusively on the position of Hochtief Solutions AG as regards the economic requirement.

13 Under a profit transfer agreement, Hochtief Solutions AG must transfer any profit that it makes to its parent company every year, so that the profit recorded in the balance sheet of Hochtief Solutions AG is systematically zero or negative.

14 Hochtief Hungary questioned the lawfulness of the economic requirement on the ground that it was discriminatory and breached certain provisions of the Hungarian law implementing Directive 2004-18. .

15 The referring court explained, in that connection, that, under the rules on annual accounts applicable to companies incorporated under German law, or at least to groups of companies incorporated under German law, it is possible for a company to show a positive profit/loss after tax but a negative profit/loss in the balance sheet because of a distribution of dividends or a transfer of profits exceeding the profit after tax, whereas the Hungarian legislation prohibits any distribution of dividends which would result in a negative profit/loss in the balance sheet.

16 Hochtief Hungary challenged the lawfulness of the economic requirement before the Közbeszerzések Tanácsa Közbeszerzési Döntobizottság. Hochtief Hungary brought an action against the decision of the latter before the court of first instance and subsequently appealed to the referring court.

17 Before the referring court, Hochtief Hungary argued that the economic requirement does not allow a non-discriminatory and objective comparison of the candidates to be made, since the rules on annual accounts of companies as regards the payment of dividends within groups of undertakings may vary from one Member State to another. That, in any event, was the case with regard to Hungary and the Federal Republic of Germany. The economic requirement was indirectly discriminatory because it disadvantaged candidates who were unable to fulfil it, or could do so only with difficulty, because they are subject, in the Member State where they are established, to different legislation from that which is applicable in the Member State of the awarding authority.

18 The referring court finds, first, that it is clear from Articles 44(2) and 47(1)(b) of Directive 2004-18 that a contracting authority may fix a minimum level of economic and financial standing with reference to the balance sheet and, second, that Article 47 takes account of the differences which may exist between national legislations relating to the annual accounts of companies. Therefore, it raises the question of how it is possible to define a minimum level of economic and financial standing which is comparable whatever the place of establishment of a company where that level must be proven by documents which constitute the references mentioned in Article 47(1)(b), but the content of and information provided by which may differ from one Member State to another.

19 Against that background, the Fovárosi Ítélotábla decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

'1. Is the requirement that the minimum capacity levels stipulated in Article 44(2) of Directive 2004-18 ... be in accordance with Article 47(1)(b) of that Directive to be interpreted in such a way that the contracting authority is entitled to link the minimum capacity levels to a single indicator in an accounting document (balance sheet) that it selects to monitor economic and financial standing?

2. If the answer to the first question is yes, [is] the consistency requirement laid down by Article 44(2) of [that] Directive ... fulfilled by data selected for assessment of the minimum capacity levels (profit/loss according to the balance sheet), where such data has different content pursuant to the accounting legislation of individual Member States?

3. Is it sufficient, for the purposes of correcting any discrepancies which doubtless exist between Member States, if the contracting authority ensures that there is an opportunity to employ external resources (Article 47[(2) of Directive 2004-18]), in addition to the documents selected as proof of economic and financial standing, or must the contracting authority, in order to meet the requirement of consistency as regards all the documents selected by it, ensure that that capacity can be demonstrated in another manner (Article 47(5) [of that Directive])?'

Admissibility of the question referred for a preliminary ruling

20 Édukövízig maintains, as a preliminary point, that the reference for a preliminary ruling is inadmissible on two grounds. First, it concerns legal matters which, as they were not discussed during the procedure prior to the proceedings pending before the referring court, have no relevance to the dispute which is actually before that court. Second, the economic requirement does not, it argues, raise any real difficulty since Hochtief Hungary could have either relied on its own balance sheet, which would have allowed it to meet that requirement, or acted on behalf of Hochtief Solutions AG, which, in the light of the profit transfer contract with its parent company, Hochtief AG, should, under the legislation applicable to it, have relied on the economic and financial standing of the latter, which is legally liable, which would also have been sufficient to meet the economic requirement.

21 As regards the first ground of inadmissibility thus raised, it must be observed that it concerns the ambit of the case before the referring court as determined by the application of the national procedural rules, a question whose consideration does not fall within the jurisdiction of this Court.

22 As regards the second ground of inadmissibility, it is based on the alleged consequences of the assessment of factual matters which have to do either with Hungarian law, that is to say, the possibility that Hochtief Hungary could meet the economic requirement itself, or with German company law, that is to say, the possibility that Hochtief Solutions AG could meet that same requirement as a result of the obligation to rely on the economic standing of its parent company, which are matters which it is not for this Court to assess.

23 For the rest, it must be borne in mind that, within the framework of the cooperation between the Court of Justice and national courts and tribunals established by Article 267 TFEU, it is solely for the national court to determine, in the light of the particular circumstances of each case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. The Court can refuse a request submitted by a national court only where it is quite obvious that the ruling sought by that court on the interpretation of European Union law bears no relation to the actual facts of the main action or its purpose or where the problem is general or hypothetical (see, inter alia, Case C-203-09 Volvo Car Germany [2010] ECR I-10721, paragraph 23 and the case-law cited).

24 As none of those situations arises here, the questions referred by the referring court must be answered.

The questions referred for a preliminary ruling

The first and second questions

25 By its first and second questions, which should be considered together, the referring court essentially asks whether Articles 44(2) and 47(1)(b) of Directive 2004-18 must be interpreted as meaning that a contracting authority may fix a minimum level of economic and financial standing with reference to a given item on the balance sheet, even if there may be differences as regards that item between the legislations of the various Member States and, as a result, in the balance sheets of companies, depending on the legislation to which they are subject as regards the preparation of their annual accounts.

26 Under the first subparagraph of Article 44(2) of Directive 2004-18, a contracting authority may require minimum levels of economic and financial standing in accordance with Article 47 of that directive. Article 47(1)(b) provides that a contracting authority may ask candidates and tenderers to provide proof of that standing through the presentation of their balance sheet.

27 However, it must be observed that a minimum level of economic and financial standing cannot be established by reference to the balance sheet in general. It follows that the option provided for in the first subparagraph of Article 44(2) of Directive 2004-18 can be implemented, as regards Article 47(1)(b), only by reference to one or more particular aspects of the balance sheet.

28 As to the choice of those aspects, Article 47 of Directive 2004-18 leaves a fair degree of freedom to the contracting authorities. Unlike Article 44 of the Directive which, as regards technical and professional capacity, establishes a closed system which limits the methods of assessment and verification available to those authorities and, therefore, limits their opportunities to lay down requirements (see, as regards the similar provisions in earlier directives than Directive 2004-18, Case 76-81 Transporoute et travaux [1982] ECR 417, paragraphs 8 to 10 and 15), Article 47(4) expressly authorises contracting authorities to choose the probative references which must be produced by candidates or tenderers to furnish proof of their economic and financial standing. As Article 44(2) of Directive 2004-18 refers to Article 47, the same freedom of choice exists as regards the minimum levels of economic and financial standing.

29 However, that freedom is not unlimited. Under the second subparagraph of Article 44(2) of Directive 2004-18 a minimum capacity level must be related and proportionate to the subject-matter of the contract. It follows that the aspect or aspects of the balance sheet chosen by a contracting authority to establish a minimum level of economic and financial standing must be objectively such as to provide information on such standing of an economic operator and that the threshold thus fixed must be adapted to the size of the contract concerned in that it constitutes objectively a positive indication of the existence of a sufficient economic and financial basis for the performance of that contract, without, however, going beyond what is reasonably necessary for that purpose.

30 As the legislations of the Member States regarding the annual accounts of companies have not been the subject of full harmonisation, it cannot be ruled out that there may be differences between those legislations as regards a particular aspect of the balance sheet by reference to which a contracting authority established a minimum capacity level. However, it must be observed that, as is clear from the wording of Article 47(1)(b) and (c), and (5), Directive 2004-18 contains the idea that, as regards proof of the economic and financial standing of candidates or tenderers, a reference may legitimately be required by a contracting authority even if, objectively, not every candidate or tenderer is able to produce it, if only, in the case of Article 47(1)(b), because of a difference in legislation. Therefore, such a requirement cannot, in itself, be considered to constitute discrimination.

31 It follows that the requirement of a minimum level of economic and financial standing cannot, in principle, be disregarded solely because proof of that level has to be furnished by reference to an aspect of the balance sheet regarding which there may be differences between the laws of the different Member States.

32 Consequently, the answer to the first and second questions referred is that Article 44(2) and Article 47(1)(b) of Directive 2004-18 must be interpreted as meaning that a contracting authority may require a minimum level of economic and financial standing by reference to one or more particular aspects of the balance sheet, provided that those aspects are such as to provide information on such standing of an economic operator and that the threshold thus fixed is adapted to the size of the contract concerned in that it constitutes objectively a positive indication of the existence of a sufficient economic and financial basis for the performance of that contract, without, however, going beyond what is reasonably necessary for that purpose. The requirement of a minimum level of economic and financial standing cannot, in principle, be disregarded solely because that level relates to an aspect of the balance sheet regarding which there may be differences between the legislations of the different Member States.

The third question

33 By its third question, the referring court essentially asks whether Article 47 of Directive 2004-18 must be interpreted as meaning that, where an economic operator cannot meet a minimum level of economic and financial standing because of a difference between the legislations of the Member States in which it and the contracting authority respectively are established as regards the item in the balance sheet by reference to which that minimum capacity was defined, it is sufficient for that operator to rely on the capacities of another entity, in accordance with Article 47(2), or if it must be authorised to prove its economic and financial standing by any other appropriate document, in accordance with Article 47(5).

34 It must, however, be observed that, as is clear from the order for reference, the divergence of legislation at issue in the case in the main proceedings does not concern the scope of the item of the balance sheet covered by the economic requirement, that is to say the profit/loss recorded in the balance sheet. Both the German and Hungarian legislations provide that that item takes account of the profit or loss of the financial year and the distribution of dividends. However, those legislations differ in that the Hungarian law prohibits the distribution of dividends or the transfer of profits from having the consequence of making that item negative, whereas the German law does not prohibit that, in any event not in the situation of a subsidiary like Hochtief Solutions AG, which is linked to its parent company by a profit transfer agreement.

35 Therefore, that difference in legislation concerns the fact that, unlike the Hungarian law, the German law does not limit the possibility which a parent company has of deciding that the profits of its subsidiary will be transferred to it, even if that transfer has the effect of making the profit/loss in the balance sheet negative for that subsidiary, without, however, requiring such a transfer of profits.

36 Consequently, it must be held that, by its question, the referring court seeks to know whether Article 47 of Directive 2004-18 must be interpreted as meaning that, where an economic operator is unable to meet a minimum level of economic and financial standing such as the economic requirement because of an agreement under which that economic operator systematically transfers its profits to its parent company, it is sufficient for that operator to be able to rely on the capacities of another entity, in accordance with Article 47(2), or whether it must be authorised to prove its economic standing by any other appropriate document, in accordance with Article 47(5), having regard to the fact that such an agreement is authorised without limitation by the legislation of the Member State of establishment of that economic operator, whereas, under the legislation of the Member State of establishment of the contracting authority, it would only be authorised on condition that the transfer of profits does not have the effect of making the profit/loss in the balance sheet negative.

37 It appears that, in such a situation, the fact that a subsidiary is unable to meet a minimum level of economic and financial standing defined by reference to a particular aspect of the balance sheet is, in the final analysis, the result, not of a difference in legislation, but of a decision by its parent company which obliges that subsidiary to transfer all its profits systematically to it.

38 In that situation, that subsidiary has only the option provided for by Article 47(2) of Directive 2004-18, which allows it to rely on the economic and financial standing of another entity by producing the undertaking of that entity to make the necessary resources available to it. Clearly, that option is particularly suited to such a situation, since the parent company may thus itself remedy the fact that it has placed its subsidiary in a position in which it cannot meet the minimum capacity level.

39 The answer to the third question is therefore that Article 47 of Directive 2004-18 must be interpreted as meaning that where an economic operator cannot meet a minimum level of economic and financial standing consisting in a requirement that the profit/loss item in the balance sheet of candidates or tenderers should not be negative for more than one of the last three completed financial years, because of an agreement under which that economic operator systematically transfers its profits to its parent company, that operator has no other option, in order to meet that minimum capacity level, than to rely on the capacities of another entity, in accordance with Article 47(2). It is irrelevant in that regard that the legislation of the Member State of establishment of that economic operator and that of the Member State of establishment of the contracting authority differ in that such an agreement is authorised without limitation by the legislation of the first Member State whereas, under the legislation of the second, it would only be authorised on condition that the transfer of profits does not have the effect of making the profit/loss item in the balance sheet negative.

Costs

40 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Seventh Chamber) hereby rules:

1. Articles 44(2) and 47(1)(b) 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 a contracting authority may require a minimum level of economic and financial standing by reference to one or more particular aspects of the balance sheet, provided that those aspects are such as to provide information on such standing of an economic operator and that that level is adapted to the size of the contract concerned in that it constitutes objectively a positive indication of the existence of a sufficient economic and financial basis for the performance of that contract, without, however, going beyond what is reasonably necessary for that purpose. The requirement of a minimum level of economic and financial standing cannot, in principle, be disregarded solely because that level relates to an aspect of the balance sheet regarding which there may be differences between the legislations of the different Member States.

2. Article 47 of Directive 2004-18 must be interpreted as meaning that where an economic operator cannot meet a minimum level of economic and financial standing consisting in a requirement that the profit/loss item in the balance sheet of candidates or tenderers should not be negative for more than one of the last three completed financial years, because of an agreement under which that economic operator systematically transfers its profits to its parent company, that operator has no other option, in order to meet that minimum capacity level, than to rely on the capacities of another entity, in accordance with Article 47(2). It is irrelevant in that regard that the legislation of the Member State of establishment of that economic operator and that of the Member State of establishment of the contracting authority differ in that such an agreement is authorised without limitation by the legislation of the first Member State whereas, under the legislation of the second, it would only be authorised on condition that the transfer of profits does not have the effect of making the profit/loss item in the balance sheet negative.