delivered on 28 January 2021 Case C‑6/20 – Ministry of Social Affairs v State Support Services Centre
Reference for a preliminary ruling – Public supply contracts – Directive 2004/18/EC – Articles 2 and 46 – Project financed by the Fund for European Aid to the Most Disadvantaged – Criteria for the selection of tenderers – Regulation (EC) No 852/2004 – Article 6 – Requirement of a registration certificate or approval issued by the national food‑safety authority of the State in which the contract is to be performed.
I. Legal framework
A. EU law
1. Directive 2004/18
| 5 | Pursuant to Article 2 (‘Principles of awarding contracts’): “Contracting authorities shall treat economic operators equally and non‑discriminatorily and shall act in a transparent way.” |
| 6 | Article 26 (‘Conditions for performance of contracts’) provides that “Contracting authorities may lay down special conditions … provided that these are compatible with Community law and are indicated in the contract notice or in the specifications.” |
| 7 | Article 46 (‘Suitability to pursue the professional activity’) stipulates that economic operators may be required to prove enrolment on a professional or trade register or to provide a declaration or certificate as described in the relevant annexes. |
2. Regulation No 852/2004
| 8 | Article 2 (‘Definitions’) defines “establishment” as any unit of a food business. |
| 9 | Article 6 (‘Official controls, registration and approval’) requires food business operators to notify the competent authority of each establishment and to ensure that establishments are approved where required (by national law, Regulation (EC) No 853/2004 or a Commission decision). |
B. Estonian law
1. Riigihangete seadus (Public Procurement Act)
| 10 | Paragraph 39(1) requires the contracting authority to examine the economic‑ and financial‑standing and the technical and professional ability of the tenderer, ensuring that qualification conditions are sufficient, relevant and proportionate. |
| 11 | Paragraph 41(3) obliges the contracting authority to indicate in the tender notice any specific conditions, including the requirement to furnish an operating licence or registration certificate, and to exclude tenderers who do not hold them. |
2. Toiduseadus (Food‑stuffs Act)
| 12 | Paragraph 8 obliges economic operators to hold an operating licence for activities in the food sector for establishments covered by Article 6(3)(b) and (c) of Regulation No 852/2004, and for other categories of food‑handling establishments listed in the Act. |
| 13 | An operating licence authorises the economic operator to commence operations and to carry out economic activity in the specified establishment. |
II. Facts, national proceedings and questions referred for a preliminary ruling
| 14 | In 2015 and 2017 the Estonian Ministry of Social Affairs announced two open invitations to tender (Nos 157505 and 189564) for the supply of “food aid for the most disadvantaged”, each valued at more than €4 million. |
| 15 | Tenderers for contract 157505 were required to have the approval of the Veterinary and Food Office (VFO) and to provide the corresponding certificate and approval number. |
| 16 | The conditions of contract 157505 were later amended so that a simple declaration of compliance with the information and approval obligations could be attached; the same amendment applied to contract 189564. |
| 17 | Two framework agreements were concluded; Sanitex OÜ was awarded the contract on the basis of the most economically advantageous bid. |
| 18 | Purchases were made of foodstuffs from Estonia, Latvia, Lithuania and other EU Member States. |
| 19 | By a “financial correction decision” of 30 October 2018, Innove rejected payment requests (≈ €463 291.55) submitted by the Ministry of Social Affairs. |
| 20 | The correction was based on the Ministry’s failure to fulfil the obligations under the RHS. |
| 21 | Innove argued that the selection criteria unduly restricted the circle of tenderers, particularly foreign ones, because they were required to hold an Estonian licence or comply with the registration obligation in Estonia. |
| 22 | Innove maintained that allowing foreign tenderers to rely on licences from their own Member State would not remove the restriction. |
| 23 | The Ministry of Social Affairs lodged an (optional) complaint against the correction decision, which Innove dismissed on 25 January 2019. |
| 24 | The Ministry then sought annulment before the Tallinn Administrative Court (Tallinna Halduskohus), arguing that the tender notices were lawful, that the specific requirements complied with Regulation No 852/2004, and that the contracting authority could not require an activity licence pursuant to Article 46 of the Directive. |
| 25 | Innove opposed the action, contending that the requirement to produce an activity licence or registration certificate must be interpreted in light of EU law, particularly Directive 2004/18, and that it constituted unequal treatment. |
| 26 | The Ministry of Finance intervened, arguing that foreign tenderers must comply with the requirements of the State in which they operate and that the licence requirement should be proportionate and, where possible, satisfied at the performance stage. |
| 27 | The Administrative Court (22 May 2019) found that the requirement created unequal treatment of foreign tenderers, was disproportionate, and that the licence application could not be expected at the tender‑submission stage. |
| 28 | The Ministry of Social Affairs appealed to the Tallinn Court of Appeal (Tallinna Ringkonnakohus), which set out several considerations, including the need for an activity licence in Estonia for food‑handling establishments and the compatibility with Article 6 of Regulation No 852/2004. |
| 29 | The Court of Appeal referred the following questions to the Court of Justice: |
- Whether Articles 2 and 46 of Directive 2004/18 preclude national legislation requiring tenderers to provide licences or registration certificates at the time of tender submission.
- Whether the same articles preclude a requirement that all tenderers, irrespective of their place of establishment, must already hold an activity licence or be registered in the State of the food‑aid operations at the time of tender submission.
- (If 1 and 2 are answered affirmatively) Whether the principle of protection of legitimate expectations can be invoked against them.
- (If 1 and 2 are answered affirmatively) Whether such a requirement constitutes a manifest infringement of the rules. |
III. Procedure before the Court of Justice
| 30 | The order for reference was received at the Registry of the Court on 7 January 2020. |
| 31 | Written observations were lodged by the Estonian Government and the European Commission, together with the Riigi Tugiteenuste Keskus. |
IV. Assessment
A. Preliminary remarks
The Court’s request is limited to the first two questions.
B. Qualification of tenderers
- The national provisions require tenderers to furnish evidence of a licence or registration at the time of tender submission; failure to do so leads to exclusion.
- Articles 2 and 46 of Directive 2004/18 aim to ensure equal treatment and prohibit discriminatory qualification criteria.
- Article 46 allows contracting authorities to request evidence of enrolment on a professional register or a certificate, but the principle of mutual recognition requires that documents issued by the Member State of the tenderer’s establishment be sufficient.
- Directive 2004/18, via Articles 48(2)(d) and 49, expressly permits the use of certificates and registrations issued by the tenderer’s home Member State.
- Articles 52(4) and 52(5) restrict contracting authorities from demanding additional proof beyond what is required of national operators.
Conclusion on qualification: The requirement that tenderers produce an Estonian licence or registration at the tender‑submission stage, when they already hold equivalent authorisation in another Member State, is incompatible with Articles 2 and 46 of Directive 2004/18.
C. Requirement that tenderers have an establishment in Estonia
- Article 6 of Regulation No 852/2004 links the competent authority’s control to the territorial location of the establishment.
- Consequently, an establishment handling foodstuffs in Estonia must be registered or licensed in Estonia, irrespective of the operator’s Member State of establishment.
D. Timing of the obligation
- If the licence or registration is a condition for the performance of the contract, it may be satisfied at the performance stage, provided that the requirement is justified and proportionate.
E. Balancing the two legal regimes
- The specific food‑hygiene rules (Regulation No 852/2004) are mandatory and may take precedence over the general procurement rules, but they must be applied in a way that minimises impact on the principles of equal treatment and non‑discrimination.
- The requirement can be framed as a “special condition relating to the performance of a contract” (Article 26 of Directive 2004/18) and, where necessary, imposed at the performance stage rather than at the tender‑submission stage.
V. Conclusion
Articles 2 and 46 of Directive 2004/18 EC are to be interpreted as meaning that a contracting authority may not require, as a qualifying condition whose breach leads to exclusion, that tenderers whose professional suitability has been recognised in their own Member State must furnish an activity licence or evidence of registration issued by the authorities of the Member State of the place of the contract.
However, if the contract notice or tender specifications justify that the successful tenderer must have an establishment in the Member State of the contracting authority, the same articles do not preclude a requirement that tenderers provide evidence, at the performance stage, that they hold the relevant licence or registration issued by the competent authorities for control of the stages of production, processing and distribution of food in that Member State, in accordance with Article 6 of Regulation (EC) No 852/2004.