12.9.2016

Official Journal of the European Union

C 335/11

(Case C-46/15) (<span class="super">1</span>)

((Reference for a preliminary ruling - Public procurement - Directive 2004/18/EC - Article 48(2)(a)(ii), second indent - Technical abilities of economic operators - Direct effect - Means of evidence - Hierarchical relationship between the private purchaser’s certification and the tenderer’s unilateral declaration - Principle of proportionality - Prohibition on introducing substantive changes to the means of evidence provided for))

(2016/C 335/14)

Language of the case: Portuguese

Referring court

Parties to the main proceedings

Applicant: Ambisig — Ambiente e Sistemas de Informação Geográfica SA

Defendant: AICP — Associação de Industriais do Concelho de Pombal

Intervener: Índice — ICT & Management Lda

Operative part of the judgment

1.The second indent of Article 48(2)(a)(ii) 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, even if not transposed into national law, it satisfies the conditions for conferring on individuals rights that they may assert against a contracting authority before national courts, provided that that authority is a public entity or has been given responsibility, pursuant to a measure adopted by the State, for providing a public-interest service under the control of the State and which has, for that purpose, special powers beyond those which result from the normal rules applicable in relations between individuals.

2.The second indent of Article 48(2)(a)(ii) of Directive 2004/18 must be interpreted as meaning that it does not preclude the application of rules laid down by a contracting authority, such as those at issue in the main proceedings, which do not allow an economic operator to provide evidence of his technical abilities by a unilateral declaration, unless he proves that it is impossible or very difficult to obtain a certification from the private purchaser.

3.The second indent of Article 48(2)(a)(ii) of Directive 2004/18 must be interpreted as meaning that it precludes the application of rules laid down by a contracting authority, such as those at issue in the main proceedings, which, on pain of exclusion of the tenderer’s application, require the private purchaser’s certification to contain authentication of the signature by a notary, lawyer or other competent entity.

Language of the case: Portuguese

(1) OJ C 146, 4.5.2015.