Contents
Judgment of the Court (Seventh Chamber)22 January 2026note(Reference for a preliminary ruling — Public procurement of service, supply and works contracts — Directive 2014/24/EU — Award of contracts — Article 2(1)(10) — Concept of economic operator — Inclusion of a subsidiary wholly owned by the parent company — Article 63 — Reliance on the capacities of other entities of persons linked with that undertaking — Article 59(1) — Freedom to prove that the capacities of other entities have been made available — Implementing Regulation (EU) 2016/7 — Annex 1 and point C of Part II of Annex 2 — Submission of several European Single Procurement Documents (ESPD) — Purpose of the ESPD)In Case C‑812/24,REQUEST for a preliminary ruling under Article 267 TFEU from the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal), made by decision of 12 September 2024, received at the Court on 26 November 2024, in the proceedingsLIPOR – Associação de Municípios para a Gestão Sustentável de Resíduos do Grande Porto,PreZero Portugal, S.A.vSemural Waste & Energy, S.A.,THE COURT (Seventh Chamber),composed of F. Schalin, President of the Chamber, M. Gavalec (Rapporteur) and Z. Csehi, Judges,Advocate General: M. Campos Sánchez-Bordona,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– LIPOR – Associação de Municípios para a Gestão Sustentável de Resíduos do Grande Porto, by M. Fernandes, R. Maia Magalhães and R.P. Pinto, advogados,– PreZero Portugal, S.A., by A. Tinoco, advogado,– the Portuguese Government, by P. Barros da Costa, F. Batista and M.J. Ramos, acting as Agents,– the Czech Government, by L. Halajová, M. Smolek and J. Vláčil, acting as Agents,– the European Commission, by A. Biolan, G. Wils and I. Melo Sampaio, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following
Judgment
1This request for a preliminary ruling concerns the interpretation of Article 63(1) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65).
2The request has been made in proceedings between LIPOR – Associação de Municípios para a Gestão Sustentável de Resíduos do Grande Porto (Association of municipalities for sustainable waste management in Greater Porto, Portugal) (‘LIPOR’), PreZero Portugal, S.A. (‘PreZero’) and Semural Waste & Energy S.A. (‘Semural’), concerning the award, by LIPOR, of a contract to PreZero for the transport and disposal of waste.
Legal context
European Union law
Directive 2014/24
3Recitals 14 and 84 of Directive 2014/24 are worded as follows:(14) It should be clarified that the notion of “economic operators” should be interpreted in a broad manner so as to include any persons and/or entities which offer the execution of works, the supply of products or the provision of services on the market, irrespective of the legal form under which they have chosen to operate. Thus, firms, branches, subsidiaries, partnerships, cooperative societies, limited companies, universities, public or private, and other forms of entities than natural persons should all fall within the notion of economic operator, whether or not they are “legal persons” in all circumstances.…(84) Many economic operators, and not least [small and medium-sized enterprises (SMEs)], find that a major obstacle to their participation in public procurement consists in administrative burdens deriving from the need to produce a substantial number of certificates or other documents related to exclusion and selection criteria. Limiting such requirements, for example through use of a European Single Procurement Document (ESPD) consisting of an updated self-declaration, could result in considerable simplification for the benefit of both contracting authorities and economic operators.…It should be set out explicitly that the ESPD should also provide the relevant information in respect of entities on whose capacities an economic operator relies, so that the verification of the information regarding such entities can be carried out together with and on the same conditions as the verification in respect of the main economic operator.’
4Article 2 of that directive, entitled ‘Definitions’, provides, in paragraph 1 thereof:‘For the purposes of this Directive, the following definitions apply:…(10) “economic operator” means any natural or legal person or public entity or group of such persons and/or entities, including any temporary association of undertakings, which offers the execution of works and/or a work, the supply of products or the provision of services on the market;…’
5Article 56 of that directive, which sets out the ‘general principles’ for the choice of participants and the award of contracts, provides, in paragraph 3 thereof:‘Where information or documentation to be submitted by economic operators is or appears to be incomplete or erroneous or where specific documents are missing, contracting authorities may, unless otherwise provided by the national law implementing this Directive, request the economic operators concerned to submit, supplement, clarify or complete the relevant information or documentation within an appropriate time limit, provided that such requests are made in full compliance with the principles of equal treatment and transparency.’
6Article 58 of that directive, entitled ‘Selection criteria’, is worded as follows:1.Selection criteria may relate to:(a) suitability to pursue the professional activity;(b) economic and financial standing;(c) technical and professional ability.…3. With regard to economic and financial standing, contracting authorities may impose requirements ensuring that economic operators possess the necessary economic and financial capacity to perform the contract. ……4. With regard to technical and professional ability, contracting authorities may impose requirements ensuring that economic operators possess the necessary human and technical resources and experience to perform the contract to an appropriate quality standard.…’
7Article 59 of Directive 2014/24, entitled ‘European Single Procurement Document’, provides, in paragraph 1:‘At the time of submission of requests to participate or of tenders, contracting authorities shall accept the [ESPD], consisting of an updated self-declaration as preliminary evidence in replacement of certificates issued by public authorities or third parties confirming that the relevant economic operator fulfils the following conditions:(a) it is not in one of the situations referred to in Article 57 in which economic operators shall or may be excluded;(b) it meets the relevant selection criteria that have been set out pursuant to Article 58;(c) where applicable, it fulfils the objective rules and criteria that have been set out pursuant to Article 65.Where the economic operator relies on the capacities of other entities pursuant to Article 63, the ESPD shall also contain the information referred to in the first subparagraph of this paragraph in respect of such entities.The ESPD shall consist of a formal statement by the economic operator that the relevant ground for exclusion does not apply and/or that the relevant selection criterion is fulfilled and shall provide the relevant information as required by the contracting authority. The ESPD shall further identify the public authority or third party responsible for establishing the supporting documents and contain a formal statement to the effect that the economic operator will be able, upon request and without delay, to provide those supporting documents.…’
8Article 60 of that directive, entitled ‘Means of proof’, provides, in paragraph 1 thereof:‘Contracting authorities may require the certificates, statements and other means of proof referred to in paragraphs 2, 3 and 4 of this Article and Annex XII as evidence for the absence of grounds for exclusion as referred to in Article 57 and for the fulfilment of the selection criteria in accordance with Article 58.Contracting authorities shall not require means of proof other than those referred to in this Article and in Article 62. In respect of Article 63, economic operators may rely on any appropriate means to prove to the contracting authority that they will have the necessary resources at their disposal.’
9Entitled ‘Reliance on the capacities of other entities’, Article 63 of that directive provides, in paragraph 1 thereof:‘With regard to criteria relating to economic and financial standing as set out pursuant to Article 58(3), and to criteria relating to technical and professional ability as set out pursuant to Article 58(4), an economic operator may, where appropriate and for a particular contract, rely on the capacities of other entities, regardless of the legal nature of the links which it has with them. With regard to criteria relating to the educational and professional qualifications as set out in point (f) of Annex XII Part II, or to the relevant professional experience, economic operators may however only rely on the capacities of other entities where the latter will perform the works or services for which these capacities are required. Where an economic operator wants to rely on the capacities of other entities, it shall prove to the contracting authority that it will have at its disposal the resources necessary, for example, by producing a commitment by those entities to that effect.The contracting authority shall, in accordance with Articles 59, 60 and 61, verify whether the entities on whose capacity the economic operator intends to rely fulfil the relevant selection criteria and whether there are grounds for exclusion pursuant to Article 57. The contracting authority shall require that the economic operator replaces an entity which does not meet a relevant selection criterion, or in respect of which there are compulsory grounds for exclusion. The contracting authority may require or may be required by the Member State to require that the economic operator substitutes an entity in respect of which there are non-compulsory grounds for exclusion.Where an economic operator relies on the capacities of other entities with regard to criteria relating to economic and financial standing, the contracting authority may require that the economic operator and those entities be jointly liable for the execution of the contract.Under the same conditions, a group of economic operators as referred to in Article 19(2) may rely on the capacities of participants in the group or of other entities.’
10Article 65 of that directive relates to the ‘reduction of the number of otherwise qualified candidates to be invited to participate’.
Implementing Regulation (EU) 2016/7
11Commission Implementing Regulation (EU) 2016/7 of 5 January 2016 establishing the standard form for the European Single Procurement Document (OJ 2016 L 3, p. 16) states, in recital 1 thereof:‘One of the major objectives of [Directive 2014/24] and [Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ 2014 L 94, p. 243)] is the lessening the administrative burdens of contracting authorities, contracting entities and economic operators, not least small and medium-sized enterprises. A key element of that effort is the [ESPD]. The standard form for the ESPD should consequently be drafted in such a manner that the need to produce a substantial number of certificates or other documents related to exclusion and selection criteria is obviated. With the same objective in mind, the standard form should also provide the relevant information in respect of entities on whose capacities an economic operator relies, so that the verification of that information can be carried out together with the verification in respect of the main economic operator and on the same conditions.’
12Annex 1 to that implementing regulation, entitled ‘Instructions’, states, in the eighteenth paragraph thereof:‘An economic operator participating on its own but relying on the capacities of one or more other entities must ensure that the contracting authority or contracting entity receives its own ESPD together with a separate ESPD setting out the relevant information … for each of the entities it relies on.’
13Entitled ‘Standard form for the [ESPD]’, Annex 2 of that implementing regulation contains Part II relating to ‘Information concerning the economic operator’, point C of which, itself entitled ‘Information about reliance on the capacities of other entities’, provides:
Portuguese law
14Entitled ‘Tender documents’, Article 57 of the Código dos Contratos Públicos (Public Procurement Code), in the version applicable to the dispute in the main proceedings (‘the CCP’), provides, in paragraph 1 thereof:1.Tenders shall consist of the following documents:(a) the declaration set out in Annex I to this Code, of which it forms an integral part;(b) the documents which, taking into account the subject matter of the contract to be concluded and the aspects of its performance which are subject to competition under the tender specifications, contain the characteristics of the tender in accordance with which the tenderer is prepared to enter into a contract;(c) the documents required by the contract notice or invitation to tender which contain the terms and conditions relating to aspects of the performance of the contract not subject to competition under the tender specifications, to which the contracting authority intends to bind the tenderer’.
15Article 70 of the CCP, entitled ‘Evaluation of tenders’, provides, in paragraph 2(a) thereof:‘Tenders shall be excluded where their evaluation indicates:(a) that they manifestly fail to meet the subject matter of the contract to be concluded or that they do not present one of the characteristics or one of the terms and conditions set out in points (b) and (c) of Article 57(1) respectively’.
16Article 72 of the CCP, entitled ‘Clarification and rectification of tenders and applications’, provides, in paragraph 3(a) thereof:‘The selection board shall request candidates and tenderers to rectify, within a maximum period of five days, any formal irregularities in their applications and tenders that need to be remedied, provided that such rectification is not capable of altering the content thereof and does not breach the principles of equal treatment and competition; such irregularities include, in particular:(a) the failure to submit or the incorrect submission of documents that merely prove facts or qualities preceding the date of submission of the application or tender, including the declarations in Annexes I and V to this Code or the [ESPD]’.
17Article 146 of the CCP, entitled ‘Preliminary report’, provides, in paragraph 2(d) thereof:‘In the preliminary report referred to in the previous paragraph, the selection board shall also propose, giving reasons, the exclusion of tenders:…(d) which do not contain all the documents required under Article 57(1) and (2) and Article 57-A(1)’.
18Article 168 of the CCP, entitled ‘Application documents’, provides, in paragraph 4 thereof:‘Where, in order to meet the minimum technical capacity requirements, the candidate relies on third parties, regardless of the links between them, in particular subcontracting, the corresponding application shall also include a statement by which those third parties unreservedly undertake to perform certain services which are the subject of the contract to be concluded.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
19By decision of 29 May 2023, the board of directors of LIPOR launched a public tender procedure, advertised internationally, for the award of a service contract for the transport and disposal, in a non-hazardous waste facility, of 75000 tonnes of waste from an energy recovery facility.
20Article 9 of the call for tenders, entitled ‘Tender documents’, provided, in paragraph 1(a) to (c) and (l), that, in accordance with Article 57 of the CCP, tenders must include, respectively, the ESPD, a statement indicating the proposed price, a sworn statement regarding compliance with legal obligations relating to the employment of immigrant workers and, in the event of subcontracting, a statement specifying the services subcontracted, accompanied by a declaration of commitment from the subcontractors to perform the work entrusted to them.
21Under Article 15 of that call for tenders, relating to ‘Tender details’, the contracting authority may, on the basis of Article 72(1) of the CCP, request tenderers to provide the clarifications it considers necessary for the analysis and evaluation of the tenders.
22Furthermore, pursuant to Article 72(2) of the CCP, the details provided by a tenderer form an integral part of the tender, provided that they do not contradict the information which it contains, that they do not alter or supplement the characteristics thereof and that they are not intended to remedy omissions resulting in the exclusion of the tender under Article 70(2)(a) of the CCP.
23It is apparent from the request for a preliminary ruling that PreZero submitted a tender in the amount of EUR 4800000, whereas Semural’s tender amounted to a sum of EUR 4794500.
24LIPOR accepted those two tenders, after inviting PreZero, in accordance with Article 72(3) of the CCP, to remedy an irregularity that had occurred prior to the submission of its tender, relating to the fact that the ESPD had been completed incorrectly. PreZero rectified that irregularity within the prescribed period.
25In its preliminary report, LIPOR ranked PreZero’s tender first, ahead of Semural’s.
26Semural challenged that ranking before LIPOR. It argued that PreZero should have been excluded from the procurement procedure at issue in the main proceedings for failure to comply with Article 9(1)(l) of the tender rules and Article 57(1)(c) of the CCP. It argued, first, that PreZero had not submitted either a subcontracting declaration relating to Valor RIB – Indústria de Resíduos Lda. (‘Valor RIB’) or a declaration of commitment from the latter, whereas the failure to submit such a declaration constitutes, under Article 146(2)(d) of that code, grounds for excluding PreZero’s tender. Second, Semural submits that PreZero had also not attached to its tender Valor RIB’s ESPD or that of any other subcontractor, which also constitutes a ground for excluding its tender which cannot be rectified.
27In its final report of 21 July 2023, LIPOR took the view that it would be manifestly excessive to classify Valor RIB as a subcontractor, since PreZero stated, in its tender, that Valor RIB was wholly owned by it. It noted that that information was public and could be verified by quickly consulting the company’s articles of association, which are made available by the Ministry of Justice. LIPOR inferred from this that, even if Valor RIB is formally a legal entity distinct from PreZero, it would be excessive to consider that this is a situation of subcontracting. According to LIPOR, it is moreover unusual to require a mere subsidiary to undertake to carry out the work entrusted to it by its parent company. In practice, PreZero does not rely on a third party for the performance of part of the contract in question, but merely mobilises resources which belong entirely to it, even indirectly.
28LIPOR added that the obligation to submit declarations of commitment from subcontractors is intended to prevent the risk that tenderers may appoint subcontractors without having, from the outset, guarantees that they will actually participate in the performance of the services. Such a risk is, in the present case, ruled out, since, in its view, it is inconceivable that Valor RIB would refuse to dispose of the waste brought by PreZero, given that Valor RIB is wholly owned by the latter and, consequently, PreZero has decision-making power within Valor RIB.
29Thus, in view of the capital ties between PreZero and Valor RIB, the submission of a declaration of commitment by Valor RIB, attached to the tender, is only a non-essential formality, the absence of which does not preclude verification that the tender complies with the requirements of the call for tenders.
30On the basis of those considerations, LIPOR rejected Semural’s request, maintained the initial ranking of the tenders and proposed to award the contract at issue to PreZero.
31At its meeting of 31 July 2023, the board of directors of LIPOR approved the conclusions of the final report of 21 July 2023 and awarded the contract to PreZero.
32Semural brought an action before the Tribunal Administrativo e Fiscal do Porto (Administrative and Tax Court, Porto, Portugal) against LIPOR prior to the conclusion of the contract seeking, first, annulment of the decision awarding the contract at issue in the main proceedings to PreZero, second, the exclusion of PreZero’s tender, third, the award of the contract to Semural and, fourth, in the alternative, a declaration that the evaluation model was unlawful.
33By judgment of 9 November 2023, that court upheld Semural’s action. That judgment was upheld, on appeal, by judgment of 16 February 2024 of the Tribunal Central Administrativo Norte (Northern Central Administrative Court, Portugal).
34LIPOR then brought an appeal on a point of law against that judgment before the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal), which is the referring court. LIPOR maintains that an entity wholly owned by the tenderer cannot be regarded as a subcontractor and that, consequently, the legal requirements specific to subcontracting situations do not apply to it.
35The referring court points out that Valor RIB is wholly owned by PreZero and that Valor RIB’s permit to operate the landfill site, its environmental permit and its operating licence were included in the file. It also notes that, in the judgment of 10 November 2022, Taxi Horn Tours (C‑631/21, EU:C:2022:869, paragraph 60), the Court held that if, for the performance of a public contract, that joint undertaking considers that it must seek the own resources of certain partners, it must be regarded as relying on the capacities of other entities, within the meaning of Article 63 of Directive 2014/24, and must then submit not only an ESPD for itself, but also an ESPD for each of the partners whose capacities it intends to use.
36The referring court is uncertain, however, whether that interpretation can be applied to a situation in which an economic operator intends to use, for the purposes of performing a contract, the equipment and services of another company that is wholly owned by it, of which it is the sole shareholder and one of whose directors is also its own director.
37In those circumstances, the Supremo Tribunal Administrativo (Supreme Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Must Article 63(1) of Directive [2014/24] be interpreted as meaning that a situation in which an economic operator wishes to make use, in the performance of a contract, of the facilities of an undertaking (separate legal person) [whose share capital] is wholly owned by that economic operator and one of whose directors is also a director of that economic operator constitutes “reliance on the capacities of other entities”?(2) If the regulatory requirements for reliance on the capacities of other entities are regarded as satisfied, must the fact that the economic operator has not submitted, along with the tender, the [ESPD] for the wholly owned undertaking be sanctioned with exclusion from the procurement procedure?’
38By decision of the President of the Court of Justice of 24 February 2025, the referring court’s request that the present case be determined pursuant to an expedited procedure was rejected.
The first question
39By its first question, the referring court asks, in essence, whether Article 63(1) of Directive 2014/24 must be interpreted as meaning that a parent company must be regarded as relying on the capacities of other entities, within the meaning of that provision, where it intends to use, for the performance of a public contract, the capacities of a subsidiary that is wholly owned by it.
40The first sentence of the first subparagraph of Article 63(1) of Directive 2014/24 provides for the right of an economic operator to rely, for a particular contract, on the capacities of other entities, regardless of the legal nature of the links which it has with them, with a view to satisfying both the criteria relating to economic and financial standing as enshrined in Article 58(3) of that directive and the criteria relating to technical and professional capacities referred to in Article 58(4) of that directive (see, inter alia, judgment of 3 June 2021, Rad Service and Others, C‑210/20, EU:C:2021:445, paragraph 30, and order of 10 January 2023, Ambisig, C‑469/22, EU:C:2023:25, paragraph 23).
41Since the right of an economic operator to rely on the capacities of other entities may be exercised, under the first sentence of the first subparagraph of Article 63(1) of Directive 2014/24, ‘regardless of the legal nature of the links which it has with them’, reliance on the capacities of a subsidiary, including where it is wholly owned by the parent company, falls within the scope of reliance on the capacities of ‘other entities’ within the meaning of that provision.
42That interpretation is supported by Article 2(1)(10) of that directive, which defines an ‘economic operator’ as ‘any natural or legal person or public entity or group of such persons and/or entities, including any temporary association of undertakings, which offers the execution of works and/or a work, the supply of products or the provision of services on the market’. Recital 14 of that directive, which clarifies the scope of that definition, states that the concept of ‘economic operator’ should be ‘interpreted in a broad manner’ and expressly refers to subsidiaries.
43Furthermore, PreZero’s line of argument, consisting of transposing the concept of ‘economic unit’ developed by the Court in its case-law on Article 101 TFEU to the field of public procurement, cannot be accepted.
44It is settled case-law that a subsidiary’s own legal personality does not, in itself, prevent its conduct from being attributed to its parent company, in particular where, although having a separate legal personality, that subsidiary does not determine independently its own conduct on the market, but essentially carries out the instructions given to it by the parent company. Because of the unity of the group thus formed, the actions of the subsidiaries may, in certain circumstances, be attributed to the parent company. In those circumstances, the formal separation between those companies, resulting from their separate legal personality, does not preclude the unity of their conduct on the market for the purposes of the application of the competition rules (see, inter alia, judgments of 14 July 1972, Imperial Chemical Industries v Commission, 48/69, EU:C:1972:70, paragraphs 132, 133, 135 and 140, and of 6 October 2021, Sumal, C‑882/19, EU:C:2021:800, paragraphs 41 and 43).
45The Court also stated, in paragraph 60 of the judgment of 10 September 2009, Akzo Nobel and Others v Commission (C‑97/08 P, EU:C:2009:536), that where a subsidiary, that is wholly owned by a parent company, has infringed EU competition rules, there is a rebuttable presumption that the parent company exercises decisive influence over the conduct of its subsidiary.
46That case-law cannot, however, be transposed to the field of public procurement, since the concept of ‘economic unit’, within the meaning of that case-law, has the main purpose of ensuring the effectiveness of the implementation of EU competition rules by the public authorities (public enforcement), by preventing large groups from using the subsidiary system to avoid heavy penalties in the event of infringement of those rules. Such a purpose is unrelated to EU public procurement law.
47The effectiveness of the rules governing public procurement requires, on the contrary, that the contracting authority have as precise and complete knowledge as possible of the situation of each economic operator requesting to participate in a public procurement procedure or intending to submit a tender, in order to satisfy itself of the integrity and reliability of that economic operator and, consequently, that the relationship of trust with the economic operator concerned will not be broken (see, to that effect, judgment of 10 November 2022, Taxi Horn Tours, C‑631/21, EU:C:2022:869, paragraph 49).
48Thus, where a parent company indicates in its tender that it intends to entrust the performance of the public contract in question to one of its specifically identified subsidiaries, the contracting authority must be in a position to verify, first, the suitability of that subsidiary within the meaning of Article 58 of Directive 2014/24 (see, by analogy, judgment of 14 April 1994, Ballast Nedam Groep, C‑389/92, EU:C:1994:133, paragraphs 15 and 16), and, moreover, the absence, in its regard, of grounds for exclusion under Article 57 of that directive.
49It follows that, unlike the approach adopted in EU competition law, EU public procurement law, and in particular the first subparagraph of Article 63(1) of Directive 2014/24, are based on an understanding of the concept of ‘other entities’ based primarily on the legal personality of the economic operators concerned. By definition, an economic unit, within the meaning of Article 101 TFEU, consists of several natural or legal persons and does not eliminate the legal identity of each of them. Therefore, for the purposes of the application of Directive 2014/24, a subsidiary that is wholly owned by its parent company remains an ‘other entity’ separate from the parent company.
50In the light of the foregoing considerations, the answer to the first question is that Article 63(1) of Directive 2014/24 must be interpreted as meaning that a parent company relies on the capacities of other entities where it intends to use, for the performance of a public contract, the capacities of a subsidiary that is wholly owned by it.
The second question
51By its second question, the referring court asks, in essence, whether Article 56(3) of Directive 2014/24 must be interpreted as meaning that a parent company which intends to rely on the capacities of a subsidiary that is wholly owned by it, a director of which is also a director of the parent company, must be excluded from a tendering procedure on the sole ground that it has not attached to its tender the ESPD of that subsidiary.
52It follows from Article 59(1) of that directive that the ESPD may pursue, depending on the circumstances, alternatively or cumulatively, one or more of the following three objectives. That document constitutes an up-to-date sworn statement which replaces, as prima facie evidence, certificates issued by public authorities or third parties, in order to establish that the economic operator concerned is not subject to any of the grounds for exclusion from the procurement procedure referred to in Article 57 of that directive, that it satisfies the selection criteria laid down in accordance with Article 58 of that directive and, where applicable, that it fulfils the objective rules and criteria that have been set out pursuant to Article 65 of that directive (see, to that effect, judgment of 10 November 2022, Taxi Horn Tours, C‑631/21, EU:C:2022:869, paragraph 48).
53It should be noted, however, that the second question is based on the assumption that an economic operator which intends to rely on the capacities of other entities is required to present the ESPD of each of those entities.
54As is apparent from the second subparagraph of Article 60(1) of Directive 2014/24, read in conjunction with the first subparagraph of Article 63(1) thereof, economic operators may rely on any appropriate means to prove to the contracting authority that they will have at their disposal the resources necessary for the performance of the public contract in question, inter alia by producing a commitment by those entities to that effect.
55Since the applicable principle is that of the unfettered adduction of evidence, a candidate or tenderer cannot be required to present to the contracting authority an ESPD for itself and an ESPD for each of the entities on whose capacities it intends to rely.
56It is true that, as stated in recital 1 of Implementing Regulation 2016/7, the ESPD is a key element of the effort undertaken by the EU legislature, in particular through Directive 2014/24, consisting of reducing the administrative burdens faced by both contracting authorities and economic operators, in particular SMEs.
57From that point of view, by providing that, when submitting requests to participate or tenders, contracting authorities are to ‘accept’ the ESPD, the first subparagraph of Article 59(1) of that directive merely envisages the most frequent situation in which the candidate or tenderer has chosen to use such a means of proof (see, to that effect, order of 10 January 2023, Ambisig, C‑469/22, EU:C:2023:25, paragraph 24).
58An economic operator may, however, decide to produce, instead of the ESPD, certificates issued by public authorities or third parties establishing, inter alia, that not only itself but also the entities on whose capacities it intends to rely are not covered by a ground for exclusion referred to in Article 57 of that directive and/or that they fulfil the selection criteria established in accordance with Article 58 thereof.
59It follows, in the present case, that, if Valor RIB’s permit to operate the landfill site, its environmental permit and its operating licence which PreZero attached to its tender were sufficient to demonstrate that that subsidiary fulfilled the qualitative selection criteria laid down in accordance with Article 58 of Directive 2014/24, PreZero was not required to provide an ESPD to demonstrate compliance with those criteria. Furthermore, in so far as the management of the subsidiary is carried out by a sole director who is also the director of the parent company, the ESPD of the parent company is capable of establishing that that person is not covered by one of the grounds for exclusion laid down in Article 57 of that directive. It is, however, for the referring court to determine whether that is the case here.
60By contrast, if the documents referred to in paragraphs 35 and 59 above were not sufficient to compensate for the absence of Valor RIB’s ESPD, it was for PreZero, pursuant to point C of Part II of Annex 2 to Implementing Regulation 2016/7, read in conjunction with the eighteenth paragraph of Annex 1 to that implementing regulation and with the third subparagraph of recital 84 and the second subparagraph of Article 59(1) of Directive 2014/24, to send the contracting authority a separate ESPD containing the relevant information for each of the entities whose capacities it intended to use.
61In any event, it is clear from Article 56(3) of that directive that ‘where information or documentation to be submitted by economic operators is or appears to be incomplete or erroneous or where specific documents are missing, contracting authorities may, unless otherwise provided by the national law implementing this Directive, request the economic operators concerned to submit, supplement, clarify or complete the relevant information or documentation within an appropriate time limit, provided that such requests are made in full compliance with the principles of equal treatment and transparency’.
62In that regard, it should be noted, first, that Article 72(3)(a) of the CCP expressly gives candidates and tenderers the opportunity to remedy formal irregularities affecting their applications or tenders, provided that such rectification is not capable of altering the content thereof and does not breach the principles of equal treatment and competition. In addition, that provision refers to, among the irregularities capable of being remedied, the failure to submit or incorrect submission of documents the sole purpose of which is to establish facts or qualities preceding the date of submission of the application or tender, in particular the ESPD.
63Since it is thus possible to remedy the failure of a candidate or tenderer to submit its own ESPD, the same must apply where the omission relates to the transmission of the ESPD of a subsidiary on whose capacities the candidate or tenderer intends to rely.
64Second, the implementation of such rectification would be consistent with the principles of equal treatment and transparency where, first, the candidate or tenderer indicated, in its application or in its tender, that it intended to rely on the entity the ESPD of which was not sent; and, second, it is, as provided for in Article 72(3)(a) of the CCP, a matter of providing evidence of facts or qualities preceding the date of submission of the application or tender.
65In the light of the foregoing considerations, the answer to the second question is that Article 56(3) of Directive 2014/24 must be interpreted as meaning that a parent company which intends to rely on the capacities of a subsidiary that is wholly owned by it, a director of which is also a director of the parent company, cannot be excluded from a tendering procedure on the sole ground that it has not attached to its tender the ESPD of that subsidiary, since such an omission may be rectified provided that no provision of national law precludes it and that that rectification is carried out in compliance with the principles of equal treatment and transparency.
Costs
66Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
Operative part
On those grounds, the Court (Seventh Chamber) hereby rules:
1.Article 63(1) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/ECmust be interpreted as meaning that a parent company relies on the capacities of other entities where it intends to use, for the performance of a public contract, the capacities of a subsidiary that is wholly owned by it.
2.Article 56(3) of Directive 2014/24must be interpreted as meaning that a parent company which intends to rely on the capacities of a subsidiary that is wholly owned by it, a director of which is also a director of the parent company, cannot be excluded from a tendering procedure on the sole ground that it has not attached to its tender the European Single Procurement Document (ESPD) of that subsidiary, since such an omission may be rectified provided that no provision of national law precludes it and that that rectification is carried out in compliance with the principles of equal treatment and transparency.
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