| | 32004L0018: c3-52Official lists of approved economic operators and certification by bodies established    
under public or private law| 32004L0018 - Classic (3rd generation) | Article 52 | Article 52
Official lists of approved economic operators and certification by bodies established under public or private law
1. Member States may introduce either official lists of approved contractors, suppliers or service providers or certification by certification bodies established in public or private law.
Member States shall adapt the conditions for registration on these lists and for the issue of certificates by certification bodies to the provisions of Article 45(1), Article 45(2)(a) to (d) and (g), Articles 46, Article 47(1), (4) and (5), Article 48(1), (2), (5) and (6), Article 49 and, where appropriate, Article 50.
Member States shall also adapt them to Article 47(2) and Article 48(3) as regards applications for registration submitted by economic operators belonging to a group and claiming resources made available to them by the other companies in the group. In such case, these operators must prove to the authority establishing the official list that they will have these resources at their disposal throughout the period of validity of the certificate attesting to their being registered in the official list and that throughout the same period these companies continue to fulfil the qualitative selection requirements laid down in the Articles referred to in the second subparagraph on which operators rely for their registration.
2. Economic operators registered on the official lists or having a certificate may, for each contract, submit to the contracting authority a certificate of registration issued by the competent authority or the certificate issued by the competent certification body. The certificates shall state the references which enabled them to be registered in the list/to obtain certification and the classification given in that list.
3. Certified registration on official lists by the competent bodies or a certificate issued by the certification body shall not, for the purposes of the contracting authorities of other Member States, constitute a presumption of suitability except as regards Articles 45(1) and (2)(a) to (d) and (g), Article 46, Article 47(1)(b) and (c), and Article 48(2)(a)(i), (b), (e), (g) and (h) in the case of contractors, (2)(a)(ii), (b), (c), (d) and (j) in the case of suppliers and 2(a)(ii) and (c) to (i) in the case of service providers.
4. Information which can be deduced from registration on official lists or certification may not be questioned without justification. With regard to the payment of social security contributions and taxes, an additional certificate may be required of any registered economic operator whenever a contract is offered.
The contracting authorities of other Member States shall apply paragraph 3 and the first subparagraph of this paragraph only in favour of economic operators established in the Member State holding the official list.
5. For any registration of economic operators of other Member States in an official list or for their certification by the bodies referred to in paragraph 1, no further proof or statements can be required other than those requested of national economic operators and, in any event, only those provided for under Articles 45 to 49 and, where appropriate, Article 50.
However, economic operators from other Member States may not be obliged to undergo such registration or certification in order to participate in a public contract. The contracting authorities shall recognise equivalent certificates from bodies established in other Member States. They shall also accept other equivalent means of proof.
6. Economic operators may ask at any time to be registered in an official list or for a certificate to be issued. They must be informed within a reasonably short period of time of the decision of the authority drawing up the list or of the competent certification body.
7. The certification bodies referred to in paragraph 1 shall be bodies complying with European certification standards.
8. Member States which have official lists or certification bodies as referred to in paragraph 1 shall be obliged to inform the Commission and the other Member States of the address of the body to which applications should be sent. | | 31993L0037 - Works (2nd generation) | Article 29 | Article 29
1. Member States who have official lists of recognized contractors must adapt them to the provisions of Article 24 (a) to (d) and (g) and of Articles 25, 26 and 27.
2. Contractors registered in the official lists may, for each contract, submit to the contracting authority a certificate of registration issued by the competent authority. This certificate shall state the reference which enabled them to be registered in the list and the classification given in this list.
3. Certified registration in the official lists by the competent bodies shall, for the contracting authorities of other Member States, constitute a presumption of suitability for works corresponding to the contractor's classification only as regards
Articles 24 (a) to (d) and (g), 25, 26 (b) and (c) and 27 (b) and (d).
Information which can be deduced from registration in official lists may not be questioned. However, with regard to the payment of social security contributions, an additional certificate may be required of any registered contractor whenever a contract is offered.
The contracting authorities of other Member States shall apply the above provisions only in favour of contractors who are established in the country holding the official list.
4. For the registration of contractors of other Member States in an official list, no further proofs and statements may be required other than those requested of nationals and, in any event, only those provided for under Articles 24 to 27.
5. Member States holding an official list shall communicate to other Member States the address of the body to which requests for registration may be made. | | 31993L0036 - Goods (2nd generation) | Article 25 | Article 25
1. Member States who have official lists of recognized suppliers must adapt them to the provisions of points (a) to (d) and (g) of Article 20 (1) and of Articles 21, 22 and 23.
2. Suppliers registered in the official lists may, for each contract, submit to the contracting authority a certificate of registration issued by the competent authority. This certificate shall state the reference which enabled them to be registered in the list and the classification given in that list.
3. Certified registration in official lists of suppliers by the competent bodies shall, for the contracting authorities of other Member States, constitute a presumption of suitability corresponding to the suppliers classification only as regards Article 20 (1) (a) to (d) and (g), Article 21, Article 22 (1) (b) (e) Article 23 (1) (a).
Information which can be deduced from registration in official lists may not be questioned. However, with regard to the payment of social security contributions, an additional certificate may be required of any registered suppliers whenever a contract is offered.
The contracting authorities of other Member States shall apply the first and second subparagraph only in favour of suppliers established in the Member States holding the official list.
4. For the registration of suppliers of other Member States in an official list, no further proof or statements can be required other than those requested of national suppliers and, in any event, only those provided for under Articles 20 to 23.
5. Member States holding an official list shall communicate the address of the body to which requests for registration may be made to other Member States and to the Commission which shall ensure distribution. | | 31992L0050 - Services (2nd generation) | Article 35 | Article 35
1. Member States who have official lists of recognized service providers must adapt them to the provisions of Articles 29 (a) to (d) and (g) and of Articles 30, 31 and 32.
2. Service providers registered in the official lists may, for each contract, submit to the contracting authority a certificate of registration issued by the competent authority. This certificate shall state the reference which enabled them to be registered in the list and the classification given in this list.
3. Certified registration in official lists of service providers by the competent bodies shall, for the contracting authorities of other Member States, constitute a presumption of suitability corresponding to the service provider's classification only as regards Article 29 (a) to (d) and (g), Article 30, Article 31 (b) and (c) and Article 32 (a).
Information which can be deduced from registration in official lists may not be questioned. However, with regard to the payment of social security contributions, an additional certificate may be required of any registered service provider whenever a contract is offered.
The contracting authorities of other Member States shall apply the above provisions only in favour of service providers established in the Member State holding the official list.
4. When registering service providers from other Member States in an official list, no proof or statement can be required in addition to those required of national service providers and, in any case, none in addition to those required in Articles 29 to 33.
5. Member States which have official lists shall be obliged to inform the other Member States of the address of the body to which applications for registration should be sent. | | 31971L0305 - Works (1st generation) | Article A-28 | Article 28
1. Member states who have official lists of recognised contractors must, when this directive enters into force, adapt them to the provisions of article 23 (a) to (d) and (g) and of articles 24 to 26.
2. Contractors registered in these lists may, for each contract, submit to the authority awarding contracts a certificate of registration issued by the competent authority. This certificate shall state the references which enabled them to be registered in the list and the classification given in this list.
3. Certified registration in such lists by the competent bodies shall, for the authorities of other member states awarding contracts, constitute a presumption of suitability for works corresponding to the contractor's classification only as regards articles 23 (a) to (d) and (g), 24, 25 (b) and (c) and 26 (b) and (d) and not as regards articles 25 (a) and 26 (a), (c) and (e).
Information which can be deduced from registration in official lists may not be questioned. However, with regard to the payment of social security contributions, an additional certificate may be required of any registered contractor whenever a contract is offered.
The authorities of other member states awarding contracts shall apply the above provisions only in favour of contractors who are established in the country holding the official list.
4. For the registration of contractors of other member states in such a list, no further proofs and statements may be required other than those requested of nationals and, in any event, only those provided for under articles 23 to 26.
5. Member states holding an official list shall communicate to other member states the address of the body to which requests for registration may be made. |
| Case | Pte | Ref | Text | T-333/07
Entrance Services | 102-106 | W1-28
M4-137.1 | 102 L’article 137 des modalités d’application, que la requérante invoque à l’appui de sa thèse, détermine les modalités selon lesquelles la capacité technique et professionnelle des opérateurs économiques peut être justifiée.
103 Toutefois, la capacité technique et professionnelle d’effectuer des travaux ou des services n’est pas strictement comparable avec l’autorisation ou l’agrément d’effectuer de tels travaux ou de tels services. Une entreprise est en effet susceptible de disposer de la capacité technique et professionnelle d’effectuer un service mais peut ne pas disposer de l’autorisation ou de l’agrément nécessaire à sa participation à des marchés publics pour de tels travaux ou services. La nature indicative ou exhaustive de la liste établie par l’article 137 des modalités d’application apparaît dès lors sans incidence sur la question de savoir si le Parlement était en droit d’exiger des agréments de la part des soumissionnaires.
104 Il y a lieu d’observer, en outre, à titre surabondant, que, selon l’article 3 de la loi belge, un marché public ne peut être attribué qu’à des entrepreneurs agréés ou qui ont fourni la preuve qu’ils remplissent les conditions fixées par ou en vertu de ladite loi. L’agrément ne semble, par conséquent, pas correspondre, en droit belge, à une inscription sur une liste officielle, ainsi que le soutient la requérante, mais constitue bien une condition de participation à un marché public.
105 À titre surabondant, il y a lieu de considérer qu’est sans incidence l’interprétation donnée par la Cour à l’article 26 [must be 28] de la directive 71/305/CEE du Conseil, du 26 juillet 1971, portant coordination des procédures de passation des marchés publics de travaux (JO L 185, p. 5) et, plus particulièrement, son interprétation de la portée de la liste que comporte cette disposition en ce qui concerne la capacité technique et professionnelle des soumissionnaires dans le cadre des marchés publics, dans les arrêts Transporoute et travaux, d’une part, et CEI et Bellini, d’autre part, point 81 supra, dès lors que cette directive a été abrogée par la directive 93/37/CEE du Conseil, du 14 juin 1993, portant coordination des procédures de passation des marchés publics de travaux (JO L 199, p. 54), laquelle a, à son tour, été abrogée par la directive 2004/18 et que la formulation des dispositions des modalités d’application, qui résultent d’un règlement, n’est pas exactement identique à celle de l’article 26 de la directive 71/305.
106 La première branche du moyen avancé par la requérante ne saurait dès lors être accueillie. | C-71/92
Spain | 45
52-53
56+59 | W1-28 | [45]
It should be stressed in the first place that there is nothing in Article 28 of Directive 71/305 to support the view that registration in the official list of contractors recognized in the State in which the contract is to be awarded may be required of contractors established in other Member States. On the contrary, Article 28(3) entitles contractors registered in an official list in any Member State whatever to use such registration, within the limits laid down in that provision, as an alternative means of proving before the awarding authority of another Member State that they satisfy the criteria for qualitative selection listed in Articles 23 to 26 of the directive (see the judgments in Transporoute, previously cited, paragraphs 12 and 13, and in Joined Cases 27 to 29/86 CEI v Association Intercommunale pour les Autoroutes des Ardennes [1987] ECR 3347, paragraph 24). Undertakings therefore have the choice of furnishing proof of their capacity either by such registration or by the means and documents mentioned in Article 23 to 26.
[52-53]
As regards Article 312, paragraph 2, of the RGCE, it is sufficient to state that the Spanish Government does not dispute that that provision, which defines the probative value in Spain of classification certificates issued by another Member State, takes no account of the provisions of Article 26(b) and (d) of Directive 71/305 and is therefore contrary to the first subparagraph of Article 28(3) thereof.
The same applies to Article 320, paragraph 3, point 5, of the RGCE, which provides that the technical ability of suppliers may be evidenced by product quality certificates issued by Spanish official institutes or agencies. The Spanish Government admits that that provision is contrary to Article 23(1)(e) of Directive 77/62, which permits a requirement that such certificates are to be produced by the person concerned but not that they are to be drawn up by an agency of the State in which the contract is to be awarded.
[56+59]
It should be borne in mind that, as the Court has stated in paragraph 45 of this judgment, Directive 71/305 entitles contractors to furnish proof of their capacity either by the means referred to in Articles 23 to 26 of the directive or by their registration in an official list of recognized contractors, which need not necessarily be that of the State in which the contract is to be awarded. The exercise of that right is impaired by a provision such as Article 341 of the RGCE, which makes it possible to exempt only contractors registered in such a list from giving provisional security.
As the Commission has correctly stated, subparagraphs (d) and (g) of the first paragraph of Article 23 of Directive 71/305, which make it possible to exclude from participation in a contract any contractor who has been guilty of grave professional misconduct or has been guilty of serious misrepresentation with regard to the criteria laid down for qualitative selection, provide the authorities awarding contracts with sufficient means to ensure, with the same effectiveness as classification itself or the threat of its suspension, the performance of the contracts concluded. There is therefore no need to restrict the grant of the exemption in question to those contractors who have furnished proof of their capacity by classification in Spain. | 27/86
CEI | 20-28 | W1-28 | 19 In order to reply to this question, it is necessary to make clear the function of a contractor’s inclusion in an official list of recognized contractors in a member state in the overall scheme of the directive.
20 Under article 28 (1), member states which have official lists of recognized contractors must adapt them to the provisions of article 23 (a) to (d) and (g) and of articles 24 to 26.
21 The said provisions of article 23 define the circumstances relating to the insolvency or dishonesty of a contractor justifying his exclusion from participation in a contract. The provisions of articles 25 and 26 concern the references which may be furnished as proof of the contractor' s financial and economic standing, on the one hand, and technical knowledge or ability on the other.
22 The harmonization of official lists of recognized contractors provided for in article 28 (1) is therefore of limited scope. It concerns in particular references attesting to the financial and economic standing of contractors and their technical knowledge and ability. On the other hand, the criteria for their classification are not harmonized.
23 Article 28 (2) provides that contractors registered in such lists may, for each contract, submit to the authority awarding contracts a certificate of registration issued by the competent authority. That certificate is to state the references which enabled them to be registered in the list and the classification given in that list.
24 Article 28 (3) entitles contractors registered in an official list in any member state whatever to use such registration, within the limits laid down in that provision, as an alternative means of proving before the authority of another member state awarding contracts that they satisfy the qualitative criteria listed in articles 23 to 26 of the directive (judgment of 10 February 1982 in case 76/81 transporoute v minister for public works ((1982)) ecr 417).
25 In regard, in particular, to evidence of contractors' economic and financial standing and technical knowledge or ability, registration in an official list of recognized contractors may therefore replace the references referred to in articles 25 and 26 in so far as such registration is based upon equivalent information.
26 Information deduced from registration in an official list may not be questioned by the authorities awarding contracts. None the less, those authorities may determine the level of financial and economic standing and technical knowledge and ability required in order to participate in a given contract.
27 Consequently, the authorities awarding contracts are required to accept that a contractor' s economic and financial standing and technical knowledge and ability are sufficient for works corresponding to his classification only in so far as that classification is based on equivalent criteria in regard to the capacities required. If that is not the case, however, they are entitled to reject a tender submitted by a contractor who does not fulfil the required conditions
28 The reply to the national court should therefore be that article 25, article 26 (d) and article 28 of the directive must be interpreted as not precluding an awarding authority from requiring a contractor recognized in another member state to furnish proof that his undertaking has the minimum own funds, manpower and managerial staff required by national law even when the contractor is recognized in the member state in which he is established in a class equivalent to that required by the national law by virtue of the value of the contract to be awarded. | 76/81
Transporoute | 12 | W1-28 | It should be pointed out, in reply to that argument, that even if the establishment permit may be equated with registration in an official list of recognized contractors within the meaning of article 28 of directive 71/305, there is nothing in that provision to justify the inference that registration in such a list in the state awarding the contract may be required of contractors established in other member states. |
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