Article by Jonathan Lewis – Public Procurement – requirement for home state qualifications was impermissible

Lexis Nexis Public Law analysis written by Jonathan Lewis.

 In two procurements for contracts relating to foodstuffs, Estonia had introduced a requirement that tenderers have various Estonian qualifications/authorisations, without regard to equivalent qualifications in the tenderers’ own Member State. The provisions of Regulation (EC) No 852/2004 on the hygiene of foodstuff (the Food Regulation) imposed various technical requirements on the performance of the contracts. The case concerned the interpretation of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (the 2004 EU Directive). In a preliminary ruling the Court of Justice held that Article 46 must be interpreted as precluding national legislation under which the contracting authority must require that tenderers furnish proof that they hold the registration certificate or approval and that it be issued by the competent authority of the Member State in which the contract is to be performed (Estonia), even where they already hold a similar registration certificate or approval in the Member State in which they are established.

This article was first published by Lexis®PSL on 1 June 2021.

This alerter is available to download as a PDF below.

To subscribe to Henderson Chambers news, alerters and updates please click here