If capacities are utilised by affiliated companies within the group, this is to be treated as a suitability loan under public procurement law. This has been clarified by the European Court of Justice (ECJ) (Case C-812/24 - LIPOR dated 22 January 2026). This applies even if a parent company utilises the resources of its wholly-owned subsidiary.

The decision was based on an award procedure of a Portuguese waste association. In order to fulfil the technical capacity requirement, a bidder had relied on the authorisation of its own subsidiary without submitting a separate European Single Procurement Document (ESPD) for this subsidiary. The contracting authority nevertheless wanted to award the contract. The first-placed bidder successfully challenged this.

The ECJ clarified that a company may, in principle, rely on the capacities of other companies in order to fulfil suitability criteria. The decisive factor here is that this right applies „irrespective of the legal nature of the links between them“. Relationships under group law - including the relationship between parent company and subsidiary - are therefore also covered by the term „other undertakings“.

However, mere affiliation with a group does not mean that resources are automatically deemed available. Rather, the bidder must provide concrete evidence that the capacities of the affiliated company are actually available to it. Only then can a suitability loan be assumed.

The decision makes it clear that group companies are not treated as a single entity under public procurement law. If a bidder utilises the resources of another group company, the requirements for suitability lending must be complied with - in particular with regard to the corresponding evidence and declarations. Public contracting authorities must therefore also check whether the requirements for suitability lending are properly met in the case of intra-group structures.

For companies, this means that intragroup service contributions should be categorised under procurement law at an early stage and the necessary evidence prepared in order to avoid formal risks in the award procedure.