The Court of Justice ruled that the contracting authority may impose as selection criteria obligations deriving from special laws applicable to activities likely to be carried out in the performance of the public procurement contract, even if they are not essential.
However, the Court ruled that if the qualification criteria resulting from the special laws applicable to the activities relating to the contract to be awarded are not indicated in the tender documents, those documents may not be supplemented by the qualification criteria in question.
The Court of Justice of the European Union ruled on the interpretation of the provisions of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement.
The Court held that the principles of proportionality and transparency laid down in Article 18(2) of that Directive (1) allow the contracting authority to include, as selection criteria, obligations deriving from special laws applicable to activities likely to be carried out in the performance of the public contract, even if they are not of significant importance.
The Court also held that a tenderer that has stated in its offer that it will perform certain obligations by relying on the capacities of another entity, without, however, being bound to that entity by a subcontracting agreement, cannot be excluded from the procurement procedure on the ground that it has not designated the subcontractor to which it intends to entrust the performance of obligations arising from special laws applicable to the activities relating to the contract in question and which are not provided for in the procurement documents.