25.7.2016

Official Journal of the European Union

C 270/16

(Case C-76/16)

(2016/C 270/26)

Language of the case: Slovak

Referring court

Parties to the main proceedings

Applicant: INGSTEEL spol. s r. o., Metrostav a. s.

Defendant: Úrad pre verejné obstarávanie

Intervener: Slovenský futbalový zväz

Questions referred

1.May the conduct of a national authority, which finds that a tenderer for a contract with an estimated value of EUR 3 million does not satisfy the selection criterion relating to economic and financial standing, even though a sworn statement submitted by the tenderer and a declaration provided by its bank, certify that it will be able to draw on funds under a secured loan which can be used for any purpose up to a maximum amount exceeding the value of the contract, be considered compatible with the objective of Article 47, in particular Article 47(1)(a) and (4), of Directive 2004/18/EC (1) 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.Where, in a binding undertaking to grant credit, a bank operating on the banking-services market of a Member State, makes the release of funds conditional upon fulfilment of conditions for granting credit which are not specifically indicated in the loan agreement at the time of the tendering procedure, does such conduct constitute, for the purpose of Article 47(5) of Directive 2004/18, a valid reason why the tenderer cannot produce the references requested by the contracting authority, so that is it possible for the tenderer to prove its economic and financial standing by means of a sworn statement to the effect that its credit arrangement with the bank is sufficient for the purpose in question?

3.In an action for review of the decision of a national authority responsible for public tendering procedures to exclude a tenderer, may the fact that the successful tenderer has almost completed performance of the various contracts be regarded as an objective impediment precluding the national court from giving effect to the provisions of Article 47(1) and (2) of the Charter of Fundamental Rights of the European Union, in conjunction with Article 1(1) and Article 2(3), (6), (7) and (8) of Directive 89/665/EEC (2) of 21 December 1989 on the coordination of laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts?

(1) OJ 2004 L 134, p. 114.

(2) OJ 1989 L 395, p. 33.