Opinion of Advocate General Gulmann delivered on 24 February 1994

1 Original language: Danish.

2 Article 1. A of the Decree-law lays down the general conditions which a contractor which is to carry out public works must fulfil. In Article 1. B it is specifica that special prior registration is required for works exceeding a particular value laid down by Royal Decree. Article 2, setting up a committee which is to give opinions on applications for registration, 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.

3 OJ, English Special Edition 197101), p. 678.

4 OJ, English Special Edition 1971(11), p. 682. The Directive was amended after the date in question in the main proceedings 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 L 199, p. 54.

5 The Court of Justice has stated that the directive's enumeration of the proof that may be required to be submitted to show that the tenderer fulfils the conditions of probity and so forth and technical ability is exhaustive, but on the other hand there is nothing to prevent the authority awarding contracts from requesting references other than those mentioned in the directive for the purpose of assessing financial and economic standing: sec tnc judgment in Case 76/81 Transporoitte [1982] ECR 417, paragraphs 9 and 10, and the judgment in Joined Cases 27/86 to 29/86 Belimi [1987] ECR 3347, paragraph 10.

6 See the judgment in Joined Cases 27/86 to 29/86 Bellini [1987] ECR 3347, paragraphs 21-22.

7 Sec the judgment in Joined Cases 27/86 to 29/86 Bellini [1987] ECR 3347, at paragraphs 23-27, where the Court inter alia stated that registration m an official list can replace the references referred to in Articles 25 and 26 in so far as such registration is based upon equivalent information. Consequently, the authorities awarding contracts arc required to accept that a contractor's economic and financial standing and technical knowledge and ability arc 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.

8 See the judgments in Case 76/81 Transparante [1982] ECR 417, paragraphs 12 and 13, and Case C-71/92 Commission v Spain [1993] ECR 5923, paragraphs 45 and 56.

9 See footnote 4.

10 See footnote 3.

11 Article 1(c) defines a tenderer as a contractor who has submitted a tender and a candidate as one who lias sought an invitation to take part in a restricted procedure. The provision docs not, as BNG maintains, define the term contractor.

12 Article 6 enables a special procedure to be adopted in the case of the award of contracts relating to the design and construction of public housing schemes whose size and complexity, and the estimated duration of the work involved, require that planning be based from the outset on close collaboration within a team comprising representatives of the authorities awarding contracts, experts and the contractor to be responsible for carrying out the works. It is not clear to me how BNG find that provision to be relevant to this particular case.

13 Sec the Council's Second Directive 77/91/EEC of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capita!, with a view to making such safeguards equivalent (OJ 1977 L 26, p. 1), as amended by Council Directive 92/101/EEC of 23 November 1992 (OJ 1992 L 347, p. 64).