21.9.2015

EN

Official Journal of the European Union

C 311/20

(Case C-298/15)

(2015/C 311/24)

Language of the case: Lithuanian

Referring court

Parties to the main proceedings

Appellant: ‘Borta’ UAB

Respondent: VĮ Klaipėdos valstybinio jūrų uosto direkcija

Questions referred

Must the provisions of Articles 37, 38, 53 and 54 of Directive 2004/17 be understood and interpreted, whether together or separately (but without limitation to those provisions), as meaning that:

(a)they preclude a national rule under which, in the case where subcontractors are invited to perform a works contract, the main work, as identified by the contracting authority, must be carried out by the supplier?

(b)they preclude a scheme, laid down in the procurement documents, for combining the professional capacities of suppliers, such as that specified by the contracting authority in the contested tender specification, which requires that the portion representing the professional capacity of the relevant economic operator (a joint-activity partner) must correspond to the portion of the specific work which it will actually carry out under the public procurement contract?

Must the provisions of Articles 10, 46 and 47 of Directive 2004/17 be understood and interpreted, whether together or separately (but without limitation to those provisions), as meaning that:

(a)the principles of equal treatment of suppliers and transparency are not infringed in the case where the contracting authority:

—provides beforehand, in the procurement documents, a general option of combining the professional capacities of suppliers, but does not set out the scheme for implementing this option;

—subsequently, in the course of the public procurement procedure, it defines in greater detail the requirements governing the appraisal of the qualifications of suppliers by laying down certain restrictions on combining the professional capacities of suppliers;

—because of this more detailed definition of the content of the qualification requirements, it extends the deadline for tender submissions and announces this extension in the Official Journal?

(b)a restriction on the combining of suppliers’ capacities does not have to be clearly indicated in advance if the specific character of the contracting authority’s activities and the special features of the public procurement contract make such a restriction foreseeable and justifiable?

Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1).