OPINION OF ADVOCATE GENERAL
WAHL
delivered on 11 May 2017 (1)
Case C‑223/16
Casertana Costruzioni Srl
v
Ministero delle Infrastrutture e dei Trasporti — Provveditorato Interregionale per le opere pubbliche della Campania e del Molise
Azienda Regionale Campana per la Difesa del Suolo — A.R.CA.DI.S.
joined parties:
Consorzio Stabile Infratech,
W.E.E. Water Environment Energy SpA,
Massimo Fontana,
Studio Tecnico Associato Thinkd,
Claudio Della Rocca,
Nicola Maione,
Vittorio Ciotola,
FIN.SE.CO SpA,
Edilgen SpA,
Site Srl
(Request for a preliminary ruling from the Consiglio di Stato (Council of State, Italy))
(Public procurement — Article 47(2) and Article 48(3) of Directive 2004/18/CE — Article 63 of Directive 2014/24/EU — Reliance by tenderers on the capacities of other entities — National legislation providing for the automatic exclusion, from the tendering procedure, of a tenderer that relies on the capacities of another entity which, during that procedure, ceases to have the required capacities — Interpretation of national law in conformity with EU law — Principle of proportionality — Force majeure)
1. This request for a preliminary ruling concerns the interpretation of Article 47(2) and Article 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. (2)
2. In essence, the present proceedings concern the question whether those provisions preclude a national rule which provides for the automatic exclusion, from the tendering procedure, of a tenderer that has relied on the capacities of another entity which, during that procedure, ceases to have the required capacities (‘the national rule in question’).
I. Legal framework
A. EU law
1. Directive 2004/18
3. Article 47(2) of Directive 2004/18 (‘Economic and financial standing’), provides:
‘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.’
4. Article 48(3) of the same directive (‘Technical and/or professional ability’), states:
‘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.’
2. Directive 2014/24
5. 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 (3) (‘Reliance on the capacities of other entities’), states:
‘With regard to criteria relating to economic and financial standing as set out pursuant to Article 58(3), and to criteria relating to technical and professional ability as set out pursuant to Article 58(4), 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. With regard to criteria relating to the educational and professional qualifications as set out in point (f) of Annex XII Part II, or to the relevant professional experience, economic operators may however only rely on the capacities of other entities where the latter will perform the works or services for which these capacities are required. Where an economic operator wants to rely on the capacities of other entities, it shall prove to the contracting authority that it will have at its disposal the resources necessary, for example, by producing a commitment by those entities to that effect.
The contracting authority shall, in accordance with Articles 59, 60 and 61, verify whether the entities on whose capacity the economic operator intends to rely fulfil the relevant selection criteria and whether there are grounds for exclusion pursuant to Article 57. The contracting authority shall require that the economic operator replaces an entity which does not meet a relevant selection criterion, or in respect of which there are compulsory grounds for exclusion. The contracting authority may require or may be required by the Member State to require that the economic operator substitutes an entity in respect of which there are non-compulsory grounds for exclusion.
...’
6. Under Article 90(1) of that directive (‘Transposition and transitional provisions’):
‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 18 April 2016 …’
B. National law
7. Article 40 of Decreto legislativo 12 aprile 2006, n. 163, Codice dei contratti pubblici relativi a lavori, servizi e forniture in attuazione delle direttive 2004/17/CE e 2004/18/CE (Legislative Decree No 163 of 12 April 2006, Code of public works contracts, public service contracts and public supply contracts pursuant to Directives 2004/17/EC and 2004/18/EC), (4) (‘Eligibility to carry out public works’), provides, inter alia, that:
‘1. Entities carrying out public works in any capacity must be duly authorised and must ensure that their activities comply with the principles of quality, professionalism and fairness. To that end, the goods, processes, services and business quality control systems used by those entities shall be subject to a system of certification in accordance with the legislation in force.
2. The regulation set out in Article 5 shall govern the single certification scheme for any entities carrying out, in any capacity, public works for an amount exceeding EUR 150 000, on the basis of the type and amount of the works. The regulation under Article 5 also allows the categories of certification to be periodically reviewed and to provide for possible new categories.’
8. Article 49 of Legislative Decree No 163/2006 (‘Reliance on the capacity of other entities’), provides, inter alia, that:
‘The tenderer, be it an individual or a member of a consortium or group within the meaning of Article 34, in a specific tendering procedure for a public works, services or supply contract, may fulfil the requirements relating to possession of economic, financial, technical and organisational capacity, or possession of an SOA certificate [a Certification Body certificate], by relying on the capacity of another entity or the SOA certificate of another entity.’
II. Facts, procedure and the question referred
9. By invitation to tender transmitted to the Official Journal of the European Union on 7 June 2013 and published in the Gazzetta Ufficiale della Repubblica Italiana (the Italian official journal) on 10 June 2013, the Provveditorato Interregionale per le opere pubbliche della Campania e del Molise (Interregional Authority for Public Works in Campania and Molise), launched an open tendering procedure for the award of a contract for the executive design, safety coordination at the planning stage and the execution of works for the project called ‘La Bandiera Blu’ relating to the Domitian coast area, to be awarded on the basis of the most economically advantageous tender. The works concerned mainly sewage and purification infrastructures.
10. Under that procedure, tenderers were required to demonstrate their technical and professional ability by presenting an SOA certificate corresponding to the nature and value of the works covered by the contract works falling under categories OG 6, Class VII (main category), and OS 22, Class VII.
11. The Raggruppamento Temporaneo d’Imprese (an ad hoc tendering consortium, ‘RTI’), formed by Casertana Costruzioni Srl and Qatar Costruzioni Srl, participated in that procedure. In order to meet the requirement concerning the relevant class of SOA certificate, they relied on the SOA certificates of two third-party undertakings. One of those undertakings was the Consorzio Stabile Grandi Attività Progettuali (‘Consorzio Stabile GAP’), which held the SOA certificate as regards category OS 22, Class VII.
12. On completion of the tendering procedure, the contract was awarded to the RTI Consorzio Stabile Infratech — SIBA SpA — Idroeco Srl, while the RTI Casertana Costruzioni — Qatar Costruzioni was ranked second best tenderer.
13. Casertana Costruzioni brought an action against that decision before the Tribunale amministrativo regionale per la Campania (Regional Administrative Court, Campania, Italy, ‘TAR Campania’), alleging that the successful tenderer should have been excluded from the tendering procedure. Consorzio Stabile Infratech joined the proceedings and brought a counterclaim, maintaining that the RTI Casertana Costruzioni — Qatar Costruzioni ought to have been excluded from the tendering procedure because, in the course of that procedure, Consorzio Stabile GAP (the auxiliary undertaking of the principal Qatar Costruzioni), had ceased to be eligible for classification in relation to category OS 22, Class VII. By judgment of 27 March 2015, the TAR Campania upheld the counterclaim brought by Consorzio Stabile Infratech and thus dismissed Casertana Costruzioni’s action.
14. Casertana Costruzioni lodged an appeal against the judgment of the TAR Campania before the Consiglio di Stato (Council of State, Italy). Before that court, Casertana Costruzioni alleged that an automatic exclusion of its RTI during the tendering procedure, on the ground that one of the auxiliaries had lost the required certification, without the possibility of replacing that undertaking, is incompatible with the EU rules on public procurement. In particular, Casertana Costruzioni invoked Article 47 of Directive 2004/18 and Article 63 of Directive 2014/24 as well as the principle of proportionality.
15. In those circumstances, having doubts as to the correct interpretation of EU law, the referring court decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:
‘Do Article 47(2) and Article 48(3) of Directive 2004/18/EC, as replaced by Article 63 of Directive 2014/24/EU, preclude national rules which exclude, or may be construed as excluding, any possibility for an economic operator, that is to say a tenderer, of appointing another undertaking to replace the undertaking originally relied upon as “auxiliary undertaking” where the latter no longer has the capacity to participate or that capacity is diminished, thus resulting in the economic operator being excluded from the tendering procedure for reasons that are neither objectively nor subjectively imputable to it?’
16. Written observations have been submitted by Casertana Costruzioni, Consorzio Stabile Infratech, the Italian Government and the Commission. Consorzio Stabile Infratech and the Commission also presented oral argument at the hearing held on 15 March 2017.
III. Analysis
17. A number of preliminary remarks seem appropriate in order to identify the legal issues raised by the present proceedings.
18. Before the referring court, as well as in these proceedings, Casertana Costruzioni essentially argues that the EU rules on public procurement preclude national rules which provide for the automatic exclusion from the tendering procedure of a tenderer that has relied on the capacity of another entity which, in the course of that procedure, has lost the required capacity. In the view of Casertana Costruzioni, EU law requires Member States to permit the substitution of that entity with one which possesses the required capacity.
19. To my mind, the question whether a tenderer should be permitted to replace a third party on whose capacity it has relied cannot be examined in general. Three situations should be distinguished, depending on the point in time at which the loss of the required capacity occurs.
20. However, as regards the tender procedure at issue in the main proceedings, it is not clear exactly when Consorzio Stabile GAP lost the required capacity. This compels me to briefly discuss the three different scenarios below, focusing especially on the one that seems to be the most likely, on the basis of the information contained in the Court’s file.
21. First, I would point out that, if a third party loses the required capacity before the time limit for receipt of the bids expires, the tenderer may always withdraw its bid and submit a new one in which it relies on the capacity of another third party. If the tenderer does not do that, however, its bid should be excluded: the offer does not meet the criteria and requirements set out in the contract notice.
22. Accordingly, there is no possibility of replacing a third party which, at the expiry of the time limit for receipt of the bids, does not have the required capacity. Permitting a tenderer to do so would be in clear breach of Article 44(1) of Directive 2004/18. Thus, from that angle, the national rule in question does not appear incompatible with the provisions of Directive 2004/18.
23. Second, a different issue is whether a tenderer that has been awarded a contract is entitled to replace a third party on whose capacity it has relied, when that capacity was lost after the award. That is, however, an issue which is not raised in the present proceedings. Indeed, it is undisputed that Consorzio Stabile GAP lost the requisite capacity before the national authorities took any final decision on the award of the contract in question in the main proceedings.
24. A third scenario — which, if my understanding is correct, is the one relevant to the main proceedings — is the situation in which a third party loses the required capacity after the expiry of the time limit for receipt of the bids, but before the public authority makes the final award.
25. In that regard, I take the view that there is no EU rule or general principle of law that requires national authorities to permit tenderers, in that situation, to replace the third party that has lost the required capacity. For the reasons which follow, my view is that, also analysed from that angle, the national rule in question is compatible with EU law.
A. Applicability of Directive 2014/24
26. At the outset, it should be pointed out that the provisions of Directive 2014/24 are, in the main proceedings, not applicable ratione temporis.
27. According to settled case-law, in the field of public procurement the applicable directive is, as a rule, the one in force when the contracting authority chooses the type of procedure to be followed and decides definitively whether it is necessary for a prior call for competition to be issued for the award of a public contract. Conversely, a directive is not applicable if the period prescribed for its transposition expired after that point in time. (5)
28. In the main proceedings, the notice of the procurement procedure in question was published in June 2013. Directive 2014/24 was, however, adopted on 26 February 2014 and the period prescribed for its transposition expired on 18 April 2016, that is to say, after the Consiglio di Stato (Council of State) decided to make the present reference for a preliminary ruling.
29. It is, in fact, common ground between the parties that Directive 2014/24 is not applicable in the main proceedings.
B. Article 63 of Directive 2014/24 as a criterion of interpretation
30. Casertana Costruzioni nonetheless takes the view that Article 47(2) and Article 48(3) of Directive 2004/18 should be interpreted in the light of Article 63 of Directive 2014/24. It argues that that should be the case, in particular because the latter provision corresponds to Articles 47 and 48 of Directive 2004/18.
31. I do not find Casertana Costruzioni’s arguments persuasive.
32. In Partner Apelski Dariusz, the Court emphasised that, in principle, an interpretation of an existing legal provision in the light of, for example, a provision not yet in force may be appropriate only where there is a need to ‘[dispel] a problem of interpretation concerning the content’ of the former provision. Conversely, such a method of interpretation is pointless when there is no interpretative doubt concerning the provision in question which needs to be dispelled. (6)
33. That is the precisely the case here. To my mind, there is no need to have recourse to Article 63 of Directive 2014/24 in order to interpret Article 47(2) and Article 48(3) of Directive 2004/18 since the latter provisions are, as will be explained at points 40 to 43 below, by no means ambiguous.
34. Be that as it may, in Partner Apelski Dariusz the Court also dismissed an argument very similar to that put forward by Casertana Costruzioni. In that case too, one of the parties contended that Article 48(3) of Directive 2004/18 ought to be interpreted in the light of Article 63(1) of Directive 2014/24.
35. The Court, however, pointed out that ‘Article 63 of [Directive 2014/24] introduces substantial amendments as regards the right of an economic operator to rely on the capacities of other entities in the context of public contracts’. The Court went on to emphasise that ‘far from preserving the continuity of Article 48(3) of Directive 2004/18, and clarifying its scope, Article 63(1) of Directive 2014/24 introduces new conditions which were not provided for under the previous legislation’. In those circumstances, the Court concluded that Article 63(1) of Directive 2014/24 could not be used as a criterion for the interpretation of Article 48(3) of Directive 2004/18. A different approach would have ‘incorrectly anticipate[d] the application of the new legislation which differs from that laid down by Directive 2004/18, and … would be manifestly contrary to the principle of the legal certainty for economic operators’. (7)
36. The same reasoning is, mutatis mutandis, valid in the present proceedings. In permitting economic operators to replace entities which are to be excluded or which do not meet the relevant criteria, Article 63(1) of Directive 2014/24 manifestly introduces new elements as compared to the rules laid down in Article 47(2) and Article 48(3) of Directive 2004/18.
37. Nor is it possible to argue that the referring court is under an obligation to interpret the old directive in conformity with the new directive pursuant to the Inter-Environnement Wallonie case-law. (8) It is true that, in that line of case-law, the Court has held that, during the period prescribed for transposition of a directive, Member States must refrain from taking any measures liable seriously to compromise the attainment of the result prescribed by that directive. (9)
38. However, that obligation to refrain from taking measures liable seriously to compromise the attainment of the result prescribed by a directive during its period for transposition cannot be understood as requiring the applicable national rules to be interpreted in conformity with that directive. As the Court made clear in Adeneler, ‘the general obligation owed by national courts to interpret domestic law in conformity with [a non-transposed] directive exists only once the period for its transposition has expired’. (10) In doing so, the Court refused to endorse the view of some Advocates General, who had suggested — precisely on the basis of the Inter-Environnement Wallonie case-law — that the obligation to interpret domestic law in conformity with non-transposed directives should apply even before expiry of the period prescribed for their implementation. (11)
39. Accordingly, in the present proceedings, Article 63 of Directive 2014/24 cannot be used as a criterion for the interpretation of Article 47(2) and Article 48(3) of Directive 2004/18.
C. Article 47(2) and Article 48(3) of Directive 2004/18
40. Article 47(2) and Article 48(3) of Directive 2004/18 confer on every economic operator the right to rely on, for a particular contract, the capacities of other entities, regardless of the nature of the links 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. (12)
41. However, Directive 2004/18 does not contain any provision which expressly requires Member States to allow tenderers to replace economic entities on whose capabilities they have relied, when those entities are to be excluded or do not meet the relevant criteria. Nor is there any provision, in that directive, that could be read as implicitly containing such a rule or principle.
42. Thus, the possible replacement of third parties on which a tenderer has relied for the purposes of Articles 47(2) and 48(3) of Directive 2004/18 is an aspect which is, in principle, for the Member States to regulate. (13) It should not be forgotten, in this context, that Directive 2004/18 is an instrument of minimum harmonisation, (14) which leaves some regulatory discretion to the Member States for what is not expressly regulated therein.
43. Against that background, one could, however, wonder whether the national rule in question might nevertheless infringe Directive 2004/18, in particular in the light of the general principles of EU law.
44. That question should, to my mind, be answered in the negative. The arguments of Casertana Costruzioni, which invokes primarily the provisions of Directive 2004/18 as well as the principle of proportionality and a claim of force majeure, are unconvincing. On the contrary, it seems to me that such a rule is wholly in keeping with the provisions of Directive 2004/18, as interpreted by the Court.
1. The principles of equal treatment and transparency
45. According to settled case-law, the principles of equal treatment and non-discrimination and the obligation of transparency preclude any negotiation between the contracting authority and a tenderer during a public procurement procedure. That means, as a general rule, that a tender cannot be amended after it has been submitted, whether at the request of the contracting authority or at the request of the tenderer concerned. It follows that, where the contracting authority regards a tender as imprecise or as failing to meet the technical requirements of the tender specifications, it cannot require the tenderer to provide clarification. (15)
46. However, the Court has explained that Directive 2004/18 does not preclude the correction or amplification of details of a tender, on a limited and specific basis, particularly when it is clear that they require mere clarification, or to correct obvious clerical errors. (16)
47. To my mind, allowing a tenderer to replace an entity on whose capabilities it sought to rely cannot be regarded either as a clarification of, or as the correction of clerical errors in, its tender. In point of fact, such a change appears to constitute an amendment of an important element of the tender which is, therefore, in principle not permissible.
48. That position has also been expressed in the recent Opinion of Advocate General Bobek in Esaprojekt,in which he approached the issue from the angle of Article 51 of Directive 2004/18. (17) He took the view that ‘a tenderer, in principle, cannot be permitted to demonstrate that it fulfils the technical and professional requirements of a tender by relying on the experience of third parties not referred to prior to the submission deadline’. In his view, by relying on a different third party, the tenderer alters ‘the very identity of the entities carrying out the work, or at least whose experience is being called upon to do so’. That constitutes, in his opinion, ‘a material change affecting a key element of the procedure’. (18)
49. Moreover, he considered that such a change may lead to the contracting authority being required to carry out additional checks and could even affect the choice of candidates being invited to present an offer. Furthermore, he noted that giving a tenderer a second chance to decide on which entities’ capabilities it wishes to rely, ‘could certainly procure it an advantage that would be at odds with the requirement of equal treatment’. (19)
50. I agree. I would also add that upholding Casertana Costruzioni’s argument would essentially amount to creating a judge-made rule that grants the possibility of amending bids at a late stage, a possibility which, in the light of the applicable national and EU rules, was not foreseeable by the other tenderers. As mentioned, that would hardly be reconcilable with the principle of equal treatment. Nor would it be compatible with the obligation of transparency incumbent upon the public authorities. Indeed, neither the Italian nor the EU rules in force at the material time provided for such a possibility. Nor was a specific provision on this point included in the invitation to tender.
51. In that regard, it should be pointed out that the principle of equal treatment ‘requires tenderers to be afforded equality of opportunity when formulating their bids, which therefore implies that the bids of all tenderers must be subject to the same conditions’. In turn, the obligation of transparency ‘is intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. It implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or specifications so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, second, the contracting authority is able to ascertain whether the bids submitted satisfy the criteria applying to the contract in question.’ (20)
52. That interpretation of Article 47(2) and Article 48(3) of Directive 2004/18 is, in my view, borne out by other judgments of the Court.
53. First, in Wall, the Court held that ‘a change of subcontractor, even if the possibility of a change is provided for in the contract, may in exceptional cases constitute [a substantial] amendment to one of the essential provisions of a concession contract where the use of one subcontractor rather than another was, in view of the particular characteristics of the services concerned, a decisive factor in concluding the contract’. (21) In that regard, it is worthy of note that, in that case, the Court was dealing with a service concession contract: a sector not governed by any of the directives by which the EU legislature has regulated the field of public procurement. Therefore, its findings on that point were based only on (now) Articles 49 and 56 TFEU. (22)
54. Interestingly, in his Opinion in the same case, Advocate General Bot emphasised that the change of a subcontractor (despite having been permitted in the contract) could be considered ‘[to alter] an essential term of the concession and [thus necessitate] a new tender procedure’ because, in particular, ‘the concession-holder [had] relied on the reputation and technical expertise of the subcontractor when submitting its tender’. (23)
55. The reasoning followed by the Court in Wall is a fortiori applicable in the present case. Indeed, the sector concerned by the main proceedings is governed by a specific directive: at the material time, Directive 2004/18. In addition, the loss of the required capacity occurred not after the award but at an earlier stage.
56. More importantly, as in Wall, in the main proceedings the change of a third party might have altered an essential term of the bid: Casertana Costruzioni needed to rely on the capabilities of that third party in order to be able to qualify for the tender.
57. Second, in Idrodinamica Spurgo Velox and Others,the Court ruled that a ‘decision authorising the change in composition of the consortium to which the contract had been awarded necessitates an amendment of the award decision which may be regarded as substantial if, in the light of the particular features of the tender award procedure in question, it alters one of the essential elements that were decisive in the adoption of the award decision. In that situation, all relevant measures provided for by national law would have to be taken to remedy that irregularity, which might extend to a new award procedure.’ (24)
58. The logic behind the Court’s decision is the same as that in Wall. A tenderer may not alter an essential element of its bid after the submission. To my mind, the capabilities of a third party which allow a tenderer to participate in a tender procedure can hardly be regarded as a non-essential element of a bid. The conclusion might have been different, obviously, if the tenderer had itself the required capabilities or if it had relied, for the same requirement, on more than one entity having those capabilities. (25)
59. It is true that, in Forposta, the Court held that the EU rules on public procurement do not allow, in certain situations, national rules ‘requiring the contracting authorities to automatically exclude an economic operator from a procedure for the award of a public contract’. (26) However, in that case, the national rules at issue went against the very wording of Directive 2004/18. (27)
60. Indeed, the legislation reviewed by the Court provided that a situation of ‘grave professional misconduct’ would lead to the automatic exclusion of an economic operator from a procedure for the award of a public contract in progress, when, owing to circumstances for which that economic operator was responsible, the contracting authority had annulled or terminated a contract with that economic operator in the framework of a previous public contract. That situation was, however, expressly regulated in point (d) of the first subparagraph of Article 45(2) of Directive 2004/18. Thus, by altering the scope of the exclusion laid down in that provision, the Member State in question had exceeded the discretion it enjoyed under that directive.
61. Therefore, Forposta does not support the interpretation of Article 47(2) and Article 48(3) of Directive 2004/18 suggested by Casertana Costruzioni.
D. The principle of proportionality
62. Next, Casertana Costruzioni argues that the national rule in question infringes the principle of proportionality. It takes the view that such a rule goes beyond what is necessary to achieve the aims pursued by Directive 2004/18, including that of opening up the public procurement market for all economic operators, regardless of their size.
63. In that regard, it suffices to observe that, if the public procurement rules do pursue the aim of opening up the public procurement market for all economic operators, including small and medium-sized enterprises (SMEs), (28) that aim is obviously to be reconciled with the other aims pursued by that directive as well as with certain key principles underlying the legal framework which that directive brings about.
64. As explained in points 45 to 51 above, the interpretation of Article 47(2) and Article 48(3) of Directive 2004/18 proposed by Casertana Costruzioni does not appear to be consistent with the principles of equal treatment and transparency. Those are two principles of the utmost importance in the context of the EU public procurement rules. (29)
65. In any event, I can hardly see how the principle of proportionality can lend support to the interpretation of Article 47(2) and Article 48(3) of Directive 2004/18 put forward by Casertana Costruzioni. To put it very simply, Casertana Costruzioni does not actually propose reading those provisions in the light of that principle. Rather, it refers to that principle as a means of introducing a new rule which does not flow from those provisions: a rule which has, in fact, only been introduced by Directive 2014/24.
E. Force majeure
66. Last, it is only in passing that I shall deal with the argument, put forward by Casertana Costruzioni, concerning a possible situation of force majeure. In essence, that undertaking argues that a tenderer cannot be held responsible for the loss by a third party of the required capacity during the course of the tender process, when that loss is due to events which the tenderer cannot foresee and which are beyond its control.
67. That argument deserves short shrift. The threshold for a case of force majeure — if that principle is at all applicable to the situation at hand, which I doubt — is very high, and clearly not met in the present case.
68. According to settled case-law, force majeure ‘presupposes that the external cause relied on by individuals has consequences which are inexorable and inevitable to the point of making it objectively impossible for the persons concerned to comply with their obligations’. (30)
69. It seems obvious to me that tenderers are — and should be — responsible for the choices they make as regards the entities on whose capabilities they wish to rely. Those choices are business decisions of great significance. A prudent tenderer needs to assess carefully and verify the capabilities of its potential business partners. In relying on them, it makes a commitment vis-à-vis the contracting authority. It cannot be argued that the possibility that a third party might lose the capabilities required for a certain public certification is inexorable or inevitable.
70. As the Court held in Swm Costruzioni 2 and Mannocchi Luigino, Article 47(2) and Article 48(3) of Directive 2004/18 permit tenderers to rely on the capacities of more than one third-party entity in order to prove that they meet a minimum capacity level. Thus, a prudent tenderer might consider, when submitting a bid, relying on the capabilities of more than one entity in order to avoid the negative consequences that would arise in the event of one of those entities losing the required capacity. (31)
71. A lax attitude towards the possibility for tenderers of changing their business partners would in fact give an unfair advantage to irresponsible and negligent undertakings over prudent and observant ones. Arguably, retaining an undertaking capable of ensuring — not only for the present but also for the future — the necessary solidity, stability and professionalism may be more expensive than retaining an undertaking which does not have those qualities.
72. In the light of the foregoing, I take the view that a national provision such as the national rule in question is not precluded by Articles 47 and 48 of Directive 2004/18.
IV. Conclusion
73. In conclusion, I propose that the Court answer the question referred for a preliminary ruling by the Consiglio di Stato (Council of State, Italy) as follows:
On a proper construction, Articles 47 and 48 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 do not preclude a national rule which automatically excludes, from the tendering procedure, a tenderer that has relied on the capacities of another entity where that entity subsequently loses the required capacities.