In his Opinion of 28 February 2013 in case C‑94/12 Raggruppamento Temporaneo Imprese (‘RTI’), Advocate General Jääskinen has clearly indicated that the rules of arts 47(2) and 48(3) of Directive 2004/18 preclude national legislation which prohibits, except in special circumstances, reliance on the capacities of more than one auxiliary undertaking in order to fulfill the selection criteria concerning the economic and financial standing and/or technical and/or professional ability of an economic operator tendering for a contract as main contractor.
The approach followed by the AG must be welcome and, in my opinion, his teleological interpretation in view of the 'ultimate' objectives of the Directives deserves particular praise:
31. This argument is further supported by analysis of the objectives of Articles 47(2) and 48(3) of Directive 2004/18. According to the Court, one of the primary objectives of the public procurement rules of the European Union is to attain the widest possible opening‑up to competition, and that it is the concern of European Union law to ensure the widest possible participation by tenderers in a call for tenders.32. The objective of widest possible opening‑up to competition is regarded not only from the interest in the free movement of goods and services, but also in regard to the interest of contracting authorities, who will thus have greater choice as to the most advantageous tender. Exclusion of tenderers based on the number of other entities participating in the execution of the contract such as allowing only one auxiliary undertaking per qualitative criteria category does not allow for a case by case evaluation, thus actually reducing the choices of the contracting authority and affecting effective competition.33. Another objective of the public procurement rules is to open up the public procurement market for all economic operators, regardless of their size. The inclusion of small and medium‑sized enterprises (SMEs) is especially to be encouraged as SMEs are considered to form the backbone of European Union economy. The chances of SMEs to participate in tendering procedures and to be awarded public works contracts are hindered, among other factors, by the size of the contracts. Because of this, the possibility for bidders to participate in groups relying on the capacities of auxiliary undertakings is particularly important in facilitating the access to markets of SMEs. (AG in C-94/12 at paras 31 to 33, emphasis added).
These considerations rely on a conception of public procurement as a 'competition-enhancing' tool, which I personally very much favor [A Sanchez Graells, Public Procurement and the EU Competition Rules, Oxford: Hart Publishing, 2011]. However, relevant commentators such as Professor Arrowsmith continue to oppose this approach [S Arrowsmith, "The Purpose of the EU Procurement Directives: Ends, Means and the Implications for National Regulatory Space for Commercial and Horizontal Procurement Policies", in C. Barnard, M. Gehring and I. Solanke (eds.), Cambridge Yearbook of European Legal Studies (Hart Publishing, Oxford, 2011-2012), Vol. 14, pp.1-48]. Therefore, the doctrinal debate that the RTI Opinion in brings to the spotlight deserves some attention.
I think that it will be interesting to see if the CJEU expressly adopts the reasoning of AG Jääskinen in the final Judgment in the RTI case. If so, I think that the path towards the express and full recognition of the principle of competition in public procurement will continue to be paved and that there will be opportunities for further developments in the right direction.
http://youtu.be/gQLtCoh5EaI