Commentary on the ECJ judgment of 17 March 2011 on Strong Segurança (case C-95/10) concerning the lack of obligation to apply regulations concerning the usage of the potential of third parties when contracting non-priority services as stated in Directive 2004/18/EC

The Directive 2004/18/EC classifies each service as either 'priority' (Annex IIA) or 'nonpriority' (Annex IIB). According to that directive, contracting authority is not obliged to apply all of the rules of Directive 2004/18/EC to non-priority services. The ECJ has ruled on a distinction between Annex IIA and IIB services. The judgment concerned the reference to a preliminary ruling on whether or not Article 47(2) of Directive 2004/18 should be applied to the award of contracts for Annex IIB services. Article 47(2) is not among the provisions, which contracting authorities were obliged to apply when awarding Annex IIB service contracts and the article permits economic operators for relying on the capacities of other entities, provided they can demonstrate that those resources are at their disposal. The paper focuses on the ECJ judgment that the general principles of transparency and equal treatment do not impose an obligation corresponding to that contained in article 47(2) on the contracting authorities. However, member states and contracting authorities can require such an obligation in their national legislation or in tender documentation.