11.9.2010

Official Journal of the European Union

C 246/6

(Case C-74/09) (<span class="super">1</span>)

(Public works contracts - Directive 93/37/EEC - Article 24 - Grounds for exclusion - Obligations relating to the payment of social security contributions and taxes - Tenderers’ registration obligation, on pain of exclusion - ‘Registration Committee’ and its powers - Examination of the validity of certificates issued by the competent authorities of the Member State in which a foreign tenderer is established)

2010/C 246/09

Language of the case: French

Referring court

Parties to the main proceedings

Applicants: Bâtiments et Ponts Construction SA, WISAG Produktionsservice GmbH, formerly ThyssenKrupp Industrieservice GmbH

Defendant: Berlaymont 2000 SA

Re:

Reference for a preliminary ruling — Cour de Cassation (Belgium) — Interpretation of the second paragraph of Article 24 of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54) and Articles 49 EC and 50 EC — Award of public works contracts — National legislation allowing a contracting authority, first, to exclude a tenderer by reason of its not being registered in that State, even where that tenderer has provided equivalent certificates issued by the authorities of another Member State and, secondly, to subject those certificates to an assessment of their validity — Compatibility of that legislation with the provisions of Community law referred to above

Operative part of the judgment

The law of the Union is to be interpreted as not precluding national legislation which imposes on a contractor established in another Member State, in order to be awarded a contract in the contracting authority’s Member State, an obligation to hold a registration, in the latter Member State, certifying that none of the grounds for exclusion listed in the first paragraph of Article 24 of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts applies to the contractor, provided that such obligation does not hinder or delay the contractor’s participation in the public contract in question or give rise to excessive administrative charges, and provided that its sole objective is to check the professional qualities of the contractor concerned, for the purposes of that provision.

The law of the Union is to be interpreted as precluding national legislation under which the checking of the certificates issued to a contractor of another Member State by the tax and social security authorities of that Member State is entrusted to an authority other than the contracting authority where:

the majority on that other authority is composed of persons appointed by the employers’ and workers’ organisations in the construction sector of the province in which the public contract in question is to be awarded, and

that power extends to a check on the substance of the validity of those certificates.

(<span class="super">1</span>) OJ C 102, 1.5.2009.