C-389/92

2. The Netherlands company, Ballast Nedam Groep NV (hereinafter referred to as 'BNG') was, until 1987, registered as a contractor 1 — Article 1. A of the Decree-law lays down the general condi­ tions which a contractor which is to carry out public works under the Belgian legal provisions on the must fulfil. In Anicie 1. B it is specifica that special prior registration is required for works exceeding a particular registration of contractors. The relevant pro­ value laid down by Royal Decree. Article 2, setting up a visions are laid down in a Decree-Law of 3 committee which is to give opinions on applications for reg­ istration, states in the third paragraph that the committee is to take into account the applicant's technical and economic standing, its performance ability in the form of plant and qualified manpower, the scale and importance of the work it has carried out previously, the quality of the work carried out and its business probity. * Original language: Danish.

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5. BNG took the case to the Raad van State, requesting that the opinion of the Commit­ tee for the Registration of Contractors and the decision of the Ministry of Public Works be annulled. The Raad van State referred the following question to the Court. 6. In a number of Member States there are official lists of recognized contractors. Those lists enable a prior assessment to be made as to whether the contractors have the qualifi­ cations regarded as necessary with regard to carrying out a specific type of work of a par­ 'Do Directive 71/304/EEC of 26 July 1971 ticular scale. Contractors who wish to take concerning the abolition of restrictions on part in a tendering procedure are thus freedom to provide services in respect of enabled to establish their qualifications sim­ public works contracts and on the award of ply by submitting a certificate of enrolment public works contracts to contractors acting in a particular category. through agencies or branches 2and Direc­ tive 71/305/EEC of 26 July 1971 concerning the coordination of procedures for the award 3 — OJ, English Special Edition 1971(11), p. 682. The Directive was amended after the date in question in the main proceed­ ings by Council Directive 89/440/EEC of 18 July 1989 (OJ 1989 L 210, p. 1) and now appears in a codified version in Council Directive 93/37/EEC of 14 June 1993, OJ 1993 2 — OJ, English Special Edition 197101), p. 678. L 199, p. 54.

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7. Member States' official lists of recognized ment of the technicians or technical divisions undertakings are dealt with in Article 28 of which the contractor can call upon for carry­ Directive 71/305/EEC concerning the coor­ ing out the work, whether or not they 4 dination of procedures for the award of pub­ belong to the firm (Article 26(e)). lic works contracts.

4 — The Court of Justice has stated that the directive's enumera­ tion of the proof that may be required to be submitted to Article 26 lays down the means by which a show that the tenderer fulfils the conditions of probity and so forth and technical ability is exhaustive, but on the other contractor can furnish proof of its technical hand there is nothing to prevent the authority awarding knowledge or ability. It appears that submis­ contracts from requesting references other than those men­ tioned in the directive for the purpose of assessing financial sion is required of inter alia evidence of and economic standing: sec tnc judgment in Case 76/81 Transporoitte [1982] ECR 417, paragraphs 9 and 10, and the qualifications of the managerial staff (Art­ judgment in Joined Cases 27/86 to 29/86 Belimi [1987] icle 26(a)), a list of the works carried out ECR 3347, paragraph 10. 5 — See the judgment in Joined Cases 27/86 to 29/86 Bellini over the past five years and certificates of [1987] ECR 3347, paragraphs 21-22. satisfactory execution thereof (Article 26(b)), 6 — Sec the judgment in Joined Cases 27/86 to 29/86 Bellini [1987] ECR 3347, at paragraphs 23-27, where the Court inter a statement of the tools, plant and technical alia stated that registration m an official list can replace the equipment available to the contractor for references referred to in Articles 25 and 26 in so far as such registration is based upon equivalent information. Conse­ carrying out the work (Article 26(c)), a state­ quently, the authorities awarding contracts arc required to accept that a contractor's economic and financial standing ment of the firm's average annual manpower and technical knowledge and ability arc sufficient for works and the number of managerial staff for the corresponding to his classification only in so far as that clas­ sification is based on equivalent criteria in regard to the last three years (Article 26(d)) and a state­ capacities required.

13. Conversely, Article 28(4) gives contrac­ tors a right to apply for registration in the official lists in other Member States. The 15. First, BNG and the Commission provision states: expressed the view that BNG was refused registration on the Belgian list of approved contractors simply because the company is a holding company in a Netherlands group. On that basis BNG claims that the Belgian authority's interpretation of the relevant 'For the registration of contractors of other legal rules lead to BNG's exclusion for a rea­ Member States in such a list, no further son that is not mentioned among the proofs and statements may be required other grounds for exclusion which are enumerated than those requested of nationals and, in any exhaustively in Article 23 of Direc­ event, only those provided for under Art- 8 tive 71/305/EEC. BNG and the Commis­ icles 23 to 26.' (my emphasis). sion's view must, however, be rejected because it appears from the opinion quoted that BNG was not refused registration because it is a holding company in a Nether­ lands group, but because, as a holding com­ Conclusion pany, it does not itself have the necessary technical qualifications. It is, moreover, expressly mentioned in the order for refer­ ence that the respondent in the main pro­ ceedings denies that BNG was refused regis­ tration in the list simply because the company is a holding company in a Nether­ 14. The opinion of the Committee for the lands group. Registration of Contracts quoted above must be understood as a refusal to register BNG on the Belgian list of registered contractors because the company, as a holding company, does not itself fulfil the prescribed technical requirements. The opinion thus refers to the fact that the company's major assets consist 16. Secondly, as mentioned, it is apparent from the opinion cited that it was BNG's

(a) it follows from the directive that groups of contractors which do not have a spe­ cific legal form and legal persons who do not themselves intend or are not able themselves to carry out the work are 17. Since Article 28 gives contractors a right entitled to take part in tendering proce­ to be registered in other Member States' offi­ dures; cial lists which may only be made condi­ tional on the submission of the proof and declarations laid down in Articles 23 to 26, the reply to the question referred to the Court will depend on whether those provi­ sions are to be interpreted to the effect that (b) such tenderers must therefore also be they permit a requirement that the proof in able to take part in other award or regis-

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tration procedures which take place 22. First, it follows from the express word­ before a contract is awarded; and ing of Article 26(e) that it cannot be required that technicians or technical divisions belong to the undertaking itself, since it is sufficient to produce a statement that 'the contractor can call upon [them] for carrying out the work'.

21. That legal persons who are not them­ 24. As indicated by the Commission it selves able to carry out the work and who would, however, appear that at all events 9 are therefore not necessarily contractors in under Directive 89/440 which alters the the strict sense of the term but guarantee the wording of Article 1 in Directive 71/305, a undertakings which are to carry out the work can take part in the tendering proce­ dure can be supported on various grounds. 9 — See footnote 3.

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27. It follows that the relevant authorities in a Member State are not entitled to refuse registration in the official list of recognized contractors solely on the ground that the applicant company cannot produce proof to the effect that, as an independent legal per­ son it has the necessary qualifications. It must suffice, in order to obtain registration, that the applicant company can show that 25. However, I do not consider that the pro­ the relationship between the companies in a visions in Articles 1(c) 10 and 6 11of the given legal structure is such that the com­ directive provide any further aid to construc­ pany must be said actually to have available tion in support of the foregoing arguments, the required qualifications with the result as BNG asserts. that it will be in a position to ensure satisfac­ tory execution of the works contract in question.

with public works contracts and thus seeks act as a contractor, an activity which also to ensure that unnecessary hindrances are forms part of the objects of a number of not created. companies in the group and which is the most important object for the group. BNG thus ensures the central control of the financing, managerial, building and other capital goods requirements of the group of companies. BNG has explained the way the 29. It is hardly sufficient to reply to the group enters into works contracts as follows: question referred to the Court to the effect that a requirement can be inferred from the directive that in the assessment of an applica­ tion for registration in an official list of rec­ ognized contractors a specific decision should be reached as to whether the appli­ cant company, through the companies linked to it, actually has available the necessary qualifications. The court of reference formu­ lated its question so that it concerns the 'The execution of contracting work ... takes assessment of an application submitted by place — according to the factual circum­ the dominant company in a Netherlands stances, including the preferences of the group. authorities awarding contracts — sometimes through BNG itself and sometimes through one of the companies in the group amongst whose objects is the execution of contract work. The execution of such work takes place by means of a combination of manage­ 30. BNG has advanced a number of facts ment staff and capital goods in the group intended to establish that, as the dominant which is most suited to carry out work of legal person in the particular structure which the type in question. In the administration of corresponds to the legal definition of a group the group, expenses and income on the con­ in Netherlands company law, it does actually tract are allotted, under guidelines prepared have available to it the qualifications of its for the purpose by Ballast Nedam Group subsidiaries in the group. NV's management for the entire group, to the company in the group which is regarded as having the works within its sphere of competence, as determined by the NV's management, on the basis of the type of works involved and their location. When the 31. BNG has in particular explained that the works are executed by the NV itself or by company owns the entire capital of the other group company X, but fall within the sphere companies in the group and accordingly has of group company Y, the management of a decisive influence on those companies, Company Y is internally responsible for its which inter alia is reflected in the fact that execution by an organization of the group's BNG can appoint and remove the managers manpower and capital goods which are avail­ of those companies and thereby determine able to that company or put at its disposal, the companies' policy. Under Article 3 of its and the expenses and income are allotted to statutes BNG also has as one of its objects to that company.

33. The question arises whether it is possible for the Court to give a more abstract reply 12 — Sec the Council's Second Directive 77/91/EEC of 13 to the question referred to it, in other words December 1976 on coordination of safeguards which, for to lay down general criteria governing when the protection of the interests of members and others, are required by Member States of companies within the mean­ a company can be said to have available to a ing of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited liability compa­ sufficient degree another company's qualifi­ nies and the maintenance and alteration of their capita!, cations for the purpose of registration as a with a view to making such safeguards equivalent (OJ 1977 L 26, p. 1), as amended by Council Directive 92/101/EEC contractor. of 23 November 1992 (OJ 1992 L 347, p. 64).

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organ, and is at the same time a shareholder prevent the dominant company from putting or member of the other company' or when it its decisions into effect with sufficient cer­ 'is a shareholder or member of the other tainty and speed for the purpose of ensuring company and has sole control of a majority the availability of its subsidiary company's of the voting rights of its shareholders or qualifications. Not least because the Belgian members under an agreement concluded Government has not submitted observations with other shareholders or members of that in the case, it is not possible to evaluate the company'. extent to which the Belgian rules might be based on such factors.

37. I would, nevertheless, not wish to sug­ 39. With regard to the court of reference's gest that the Court apply those criteria in question whether it is incompatible with this case, not only because it cannot be Directive 71/304 to refuse registration in an excluded than there might be a sufficiently official list on the ground that the applicant decisive influence by means other than those does not, as an independent legal person, set out above, but also because there might have the necessary qualifications, it is my be grounds for not regarding a company as view that that directive, the purpose of actually having another company's qualifica­ which was to liberalize freedom to provide tions available to it even though it is domi­ services in respect of public works contracts, nant in the way stated. It cannot, for exam­ has lost its independent meaning in view of ple, be excluded that in relation to the the direct applicability of Article 59 of the legislation of a Member State other share­ EEC Treaty. It would, therefore, if need be, holders or creditors of the subsidiary com­ be more correct to examine the issue on the pany might have to be taken into account basis of Article 59, which does not simply with the result that the dominant company prohibit direct and indirect discrimination as does not actually have available to it the is the case in Directive 71/304, but also other resources necessary in the present connec­ restrictions on freedom to provide services. tion, nor can it be excluded that there are Since a reply to the question referred to the rules applicable in national law which could court can be derived from Directive 71/305,1

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