Brussels, 22/07/2010 (Agence Europe) - In a ruling returned on 15 July (case C-74/09), the Court of Justice of the EU stated that a national regulation can impose an obligation on a business from another member state wishing to participate in a public procurement contract to hold a registration confirming the absence of causes of exclusion from the contract in the member state of the contracting authority. In order to comply with Community law, this obligation may not, however, hinder or delay the participation of the interested party in the public procurement contract in question. It must not cause the party excessive administrative costs and must serve the sole purpose of verifying the professional qualities and reliability of the company in question.
Additionally, the verification of the certificates issued to a company from another member state by the tax and social authorities of that state cannot be entrusted to any body other than the contracting authority of the public contract in question, if: - that body is made up of a majority of persons appointed by the employer and worker organisations of the construction sector of the province in which the public contract in question is to be executed; - the powers of verifications extend to a substantial control of the validity of the certificates in question. The verification of the certificates by this body (attesting, amongst other things, to the regular payment of taxes and social contributions) must be limited to a summary examination to ensure that they are up to date, authentic and not issued by a manifestly incompetent authority.
The Court thus interpreted article 24§2 of Directive 93/37/EEC (coordination of procedures for the awarding of public procurement contracts) in response to the Belgian Court of Cassation, which had been called upon to arbitrate in a dispute between Bâtiments et Ponts Construction SA and WISAG Produktionsservice GmbH (formerly ThyssenKrupp Industrieservice GmbH) on the one hand and Berlaymont 2000 SA on the other. It asked the Court if the obligation upon foreign subcontractors to register in Belgium in order to participate in a public procurement contract and the obligation to submit these attestations as provided by their national authorities to the “committee for business registration” did not run counter to the principle of freedom of movement and article 24§2 of the above-mentioned directive. (F.G./transl.fl)