Official Journal of the European Union

C 379/8

(Case C-218/11) (<span class="super">1</span>)

(Directive 2004/18/EC - Public works contracts, public supply contracts and public service contracts - Articles 44(2) and 47(1)(b), (2) and (5) - Economic and financial standing of tenderers - Minimum capacity established on the basis of a single accounting indicator - Accounting indicator liable to be influenced by divergences between national laws as regards annual company accounts)

2012/C 379/13

Language of the case: Hungarian

Referring court

Parties to the main proceedings

Applicants: Észak-dunántúli Környezetvédelmi és Vízügyi Igazgatóság (Édukövízig), Hochtief Construction AG Magyarországi Fióktelepe, now Hochtief Solutions AG Magyarországi Fióktelepe

Defendant: Közbeszerzések Tanácsa Közbeszerzési Döntőbizottság

Intervening parties: Vegyépszer Építő és Szerelő Zrt, MÁVÉPCELL Kft

Re:

Reference for a preliminary ruling — Fővárosi Ítelőtábla — Interpretation of Articles 44(2), 47(1)(b), 47(3) and 47(5) 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 (OJ 2004 L 134, p. 114) — Examination of economic and financial standing of tenderers on the basis of a single accounting indicator with a different content in different Member States because of the divergences between national laws as regards accounting rules — Principle of equal treatment for tenderers

Operative part of the judgment

1.Articles 44(2) and 47(1)(b) 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 a contracting authority may require a minimum level of economic and financial standing by reference to one or more particular aspects of the balance sheet, provided that those aspects are such as to provide information on such standing of an economic operator and that that level is adapted to the size of the contract concerned in that it constitutes objectively a positive indication of the existence of a sufficient economic and financial basis for the performance of that contract, without, however, going beyond what is reasonably necessary for that purpose. The requirement of a minimum level of economic and financial standing cannot, in principle, be disregarded solely because that level relates to an aspect of the balance sheet regarding which there may be differences between the legislations of the different Member States.

2.Article 47 of Directive 2004/18 must be interpreted as meaning that where an economic operator cannot meet a minimum level of economic and financial standing consisting in a requirement that the profit/loss item in the balance sheet of candidates or tenderers should not be negative for more than one of the last three completed financial years, because of an agreement under which that economic operator systematically transfers its profits to its parent company, that operator has no other option, in order to meet that minimum capacity level, than to rely on the capacities of another entity, in accordance with Article 47(2). It is irrelevant in that regard that the legislation of the Member State of establishment of that economic operator and that of the Member State of establishment of the contracting authority differ in that such an agreement is authorised without limitation by the legislation of the first Member State whereas, under the legislation of the second, it would only be authorised on condition that the transfer of profits does not have the effect of making the profit/loss item in the balance sheet negative.

(1) OJ C 232, 6.8.2011.