Corte di Giustizia delle Comunità Europee, sezione IV, 19 maggio 2009, causa C-538/2007
E' contraria al diritto comunitario una norma nazionale (art. 34, comma 2, d.lgs. n. 163 del 2006) che stabilisca un divieto assoluto, a carico di imprese in situazioni di controllo o collegamento, di partecipare alla stessa gara d’appalto, senza lasciare loro la possibilità di dimostrare che il rapporto suddetto non ha influito sul loro rispettivo comportamento nell’ambito di tale gara
SENTENZA DELLA CORTE (Quarta Sezione)
19 maggio 2009
«Direttiva 92/50/CEE – Art. 29, primo comma – Appalti pubblici services - National legislation does not authorize participation in the same procedure for the award, concurrently, of companies with between them a relationship of control or decisive influence "
In Case C-538/07, concerning
preliminary ruling under Article. 234 EC by the Lombardy Regional Administrative Court by decision of 14 November 2007, received on 3 December 2007 in Case
Assitur Srl v
Chamber of Commerce, Industry and Agriculture of Milan and against
of SDA Express Courier SpA, the Italian Post SpA,
THE COURT (Fourth Chamber), composed of
. K. Lenaerts, President of the Chamber, R. Lapuerta de Silva, by D. E. Juhász (Rapporteur), G. Arestis and J. Malenovský, judges,
: sig. J. Mazák
Registrar: L. Hewlett, Principal Administrator
view the written procedure and further hearing on December 4, 2008,
considering the observations submitted
- for Assitur Srl, by. S. Quadrio,
- for the Chamber of Commerce, Industry and Agriculture of Milan, by. M. Bassani;
- the SDA Express Courier SpA, by A. Vallefuoco and V. Vallefuoco;
- the Italian Post SpA, by. A. Fratini;
- the Italian Government, by. IM Braguglia, acting as Agent, assisted by. G. Fiengo, State Advocate;
- the Commission of the European Communities, by. D. Kukovec and Mrs D. Recchia, acting as Agents,
after hearing the Advocate General at the hearing on February 10, 2009, gives the following Judgement
1. The request for a preliminary ruling concerns the interpretation of Article. 29, first paragraph, of June 18, 1992 Council Directive 92/50/EEC coordinating procedures for the award of public service contracts (OJ L 209, p. 1). and the general principles of Community law on public procurement.
2. The question was raised in proceedings between the Assitur Srl (hereinafter 'the Assitur) and the Chamber of Commerce, Industry and Agriculture of Milan, on the compatibility with the provisions and principles of the above national legislation prohibiting participation in a same procedure for the award of contract, in a separate and competing companies, among which there is a relationship in which one exercises control or significant influence over the other.
Context regulatory
Community legislation
3. Article. 29 of Directive 92/50, [now art. 45 of Directive 2005/18 - ed] out in Chapter 2 of the latter, entitled "Criteria for qualitative selection ', in its first paragraph reads as follows:
" may be excluded from any participation in a contract provider services which:
a) is in a state of bankruptcy, liquidation, receivership, composition with creditors, have suspended business activities or is in any analogous situation arising from a similar procedure provided for by applicable laws and regulations national
b) is the subject di procedimenti di dichiarazione di fallimento, di liquidazione coatta o di amministrazione controllata, di un concordato preventivo oppure di qualunque altro procedimento simile previsto dalle leggi o dai regolamenti nazionali;
c) sia stato condannato per un reato relativo alla condotta professionale di prestatore di servizi, con sentenza passata in giudicato;
d) si sia reso responsabile di gravi violazioni dei doveri professionali, provate con qualsiasi elemento documentabile dall’amministrazione [aggiudicatrice];
e) non abbia adempiuto obblighi riguardanti il pagamento dei contributi di sicurezza sociale conformemente alle disposizioni legislative del paese in cui è stabilito o di quello dell’amministrazione [aggiudicatrice];
f) has not fulfilled tax obligations in accordance with the laws of the country of the [authority];
g) is guilty of serious misrepresentation in supplying the information required under this chapter or fails to supply the information. "
4. Article. 3, No 4, second and third paragraphs of the June 14, 1993 Council Directive 93/37/EEC [now art. 63 of Directive 2005/18 - ed] the coordination of procedures for awarding public works contracts (OJ L 199, p.. 54), define the terms "associates" and "dominant influence" business. Regarding the public works concession contracts, It provides:
"Do not be regarded as third companies have been formed to obtain the concession or undertakings related to them.
"Related undertaking" means any undertaking over which the concessionaire can exert a dominant influence, directly or indirectly, or any undertaking which can exert a dominant influence [the concessionaire or which, as the concessionaire, is subject to dominant] of another undertaking by virtue of ownership, financial participation or the rules which govern it. The dominant influence is presumed when a company directly or indirectly in relation to another undertaking:
- holds a majority of the subscribed capital, or
- a majority of the votes attaching to the shares of the company, or
- can appoint more than half the members of the administrative, managerial or supervisory body. "
National legislation
5. The Directive 92/50 was transposed into Italian law by Legislative Decree 17 March 1995, No 157 (ordinary supplement to Official Gazette No 104 of May 6, 1995). This Decree does not include a ban on participation in the same procedure for the award of contract pubblico di servizi a carico di imprese tra le quali esistano rapporti di controllo o che siano tra loro collegate.
6. L’art. 10, comma 1 bis, della legge 11 febbraio 1994, n. 109, legge quadro in materia di lavori pubblici (GURI n. 41 del 19 febbraio 1994; in prosieguo: la «legge n. 109/1994»), [ora art. 34, comma 2, del decreto legislativo n. 163 del 2006 - n.d.r.] stabilisce quanto segue:
«Non possono partecipare alla medesima gara imprese che si trovino fra di loro in una delle situazioni di controllo previste dall’articolo 2359 del codice civile».
7. L’art. 2359 del codice civile italiano, intitolato «Società controllate e società collegate», è così formulato:
«Sono considerate società controllate:
1) le società in cui un’altra società dispone della maggioranza dei voti esercitabili nell’assemblea ordinaria;
2) le società in cui un’altra società dispone di voti sufficienti per esercitare un’influenza dominante nell’assemblea ordinaria;
3) le società che sono sotto influenza dominante di un’altra società in virtù di particolari vincoli contrattuali con essa.
Ai fini dell’applicazione dei numeri 1) e 2) del primo comma si computano anche i voti spettanti a società controllate, a società fiduciarie e a persona interposta; non is the voting rights on behalf of others.
are regarded as affiliated companies in which another company exercises significant influence. The influence is presumed when the ordinary can be exercised at least one-fifth or one tenth of the votes if the company's shares listed on regulated markets. "
8. The procedures for the award of public contracts in the works, services and supplies are currently governed, in their entirety, by legislative decree 12 April 2006, No 163 (Extra Ordinary Gazette No. 100 of May 2, 2006, hereinafter 'Legislative Decree No 163/2006). Article. 34, last paragraph of the decree legislation provides:
"They can not participate in the same race who are competing with each other in a relationship of control referred to in Article 2359 of the Civil Code. Contracting authorities shall also exclude competitors from the race for which ensure that its offerings are attributable to a single decision-making on the basis of unambiguous evidence. "
main proceedings and the question
9. By notice dated 30 September 2003, the Chamber of Commerce, Industry and Agriculture of Milan has launched a public auction for the award, on the basis of lowest price, the courier service for pickup and delivery correspondence and other documentation on behalf of the Chamber of Commerce and its own special CedCamera company for a period corresponding to the years 2004-2006. The basic bid amount of EUR 530 000, excluding VAT.
10. A review of the documentation submitted by the parties concerned, were the tenderers, SDA Express Courier SpA ('the SDA'), the Italian Post SpA ('the Italian Post Office) el'Assitur.
11. On November 12, 2003, Assitur requested exclusion from the tendering procedure of the SDA and the Italian Post Office, because of links between these two companies.
12. An inquiry carried out in this regard from the jury found that the entire share capital was held by the SDA Securities SpA, which in turn wholly owned by the Italian Post. However, since the decree 17 March 1995, n. 157, governing the procurement of services, does not prohibit participation in the same procedure for the award against companies with a controlling relationship between them, and that the verification had not brought to light serious and consistent evidence that would allow it to believe that the principles of competition and secrecy of the deals had been violated in this case, the contracting entity, with determination of the December 2 2003, no 712, decided to award the contract to the SDA, which had submitted the lowest bid.
13. The Assitur sought annulment of this decision before the Regional Administrative Court of Lombardy. It claimed that under Article. 10, paragraph 1 bis of Law 109/1994, in its opinion also applies to service contracts in the absence of other specific legislation, the contracting authority would have excluded from the tendering companies were together in a relationship of control under Article 2359 of Italian Civil Code.
14. The national court observes that Article. 10, paragraph 1 bis of Law 109/1994, which specifically governs the procurement of works, establishes a rebuttable presumption of knowability supply of the subsidiary by the parent. Consequently, economic operators concerned would not be considered by the legislature in a position to make deals that could establish the independence, professionalism and reliability you need, because they would be bound by a close community of interests. The provision that would prohibit such relationships with businesses so to participate concurrently in the same race and, in cases where it is found to be participating, these enterprises must be excluded from the procedure award. This court also notes that the concept of 'subsidiary' in Italian law is similar to that of "related company" as defined in Art. 3, No 4 of Directive 93/37.
15. The national court also notes that the Italian courts, a rule as that laid down in Art. 10, paragraph 1 bis of Law 109/1994 value of the rule of public policy, applicable in general. This rule is in fact the expression of a general principle that goes beyond the field of public works and also in the award in the services and supplies, despite the fact that, in the latter, there is no such specific provision. The legislature confirmed the jurisprudential approach with the adoption of Article. 34, last paragraph, of Legislative Decree No 163/2006, which currently governs all matters of public contracts, the latter legislation, however, is not applicable ratione temporis to this cause.
16. The court, however, is uncertain whether such an approach is compatible with the Community legal order and, in particular, with the art. 29 of Directive 92/50, as interpreted by the Court in February 9, 2006, Joined Cases C-226/04 and C-228/04, The Farm and a. (ECR. I-1347, paragraphs 21-23). That provision, which is the expression of the principle of 'favor participationis', namely the interest in that as many firms as possible take part in a tender, contains, according to that ruling, an exhaustive list of causes of exclusion from participation in a service contract. Those grounds do not include the situation of companies linked by a relationship of control or decisive influence.
17. The national court, however, considers that Article. 10, paragraph 1 bis of Law 109/1994 an expression of the principle of free competition, in that it seeks to penalize any collusion between firms under a tender procedure. Consequently, it would be adopted in strict conformity with the EC Treaty, in particular Articles. 81 et seq. the latter, and not really inconsistent with art. 29 of Directive 92/50.
18. In light of these considerations, the Lombardy Regional Administrative Court decided to stay proceedings and to refer the following question:
"If the art. 29 of Directive 92/50 (...), by providing seven grounds for exclusion from participation in service contracts, constitutes a "numerus clausus" hypothesis of impediments and thus preclude Article. 10, paragraph 1 bis of Law 109/94 (now replaced by. 34, last paragraph, of Legislative Decree No 163/06) to establish a ban on simultaneous participation in the tender for companies where there exists a relationship of control. " On the question
19. In order to answer that question, it should be noted that, according to the jurisprudence of the Court, the seven grounds for exclusion of a contractor from participating in a public contract under art. 29, first paragraph, of Directive 92/50 relating to their professional honesty, solvency and reliability of the person concerned, namely the professional qualities of the latter (See, to that effect, the House and Others., Paragraph 21).
20. The Court, with regard to art. 24, first paragraph, of Directive 93/37, which builds on the same grounds for exclusion under Article. 29, first paragraph, of Directive 92/50, stressed that the intention of the legislature was to consider this provision only in cases of exclusion related to the professional skills of those concerned. To the extent that it reproduces those grounds for exclusion, this list has been exhaustively considered by the Court (see, to that effect, December 16, 2008, Case C-213/07, Michaniki, not yet reported, paragraphs 42 and 43 and the case law cited).
21. The Court added that this list is not exhaustive, however, exclude the possibility for Member States to maintain or adopt, in addition to the grounds for exclusion, substantive rules, in particular, to ensure, in public procurement, the principles equal treatment of all bidders and transparency, which form the basis of the directives relating to the award of public contracts, provided, however, that respects the principle of proportionality (see, to that effect, Michaniki, cited ., paragraphs 44-48 and cases cited).
22. It is clear that a national legislative measures such as those at issue in this case is to avoid any possible form of collusion between the participants in the same procedure for the award of public contracts and to protect the equal treatment of candidates and the transparency of the procedure.
23. Can therefore be said that Article. 29, first paragraph, of Directive 92/50 does not preclude a Member State, in addition to the grounds of exclusion under that provision, other causes of exclusion intended to ensure compliance with the principles of equal treatment and transparency, provided that such measures do not go beyond what is necessary to achieve that objective.
24. It follows that compliance with Community law of national legislation in issue in this case must be examined again in light of the principle of proportionality.
25. In this regard, it should be noted that the Community rules on public procurement were adopted as part of the internal market, in which the free circulation and be eliminated restrictions on competition (see, to that effect , Judgement 21 February 2008 in Case C-412/04 Commission v Italy, ECR. I-619, paragraph 2).
26. In this context of a single internal market and effective competition, it is in the right Community assurances that the widest possible participation of bidders in a tender.
27. The order for reference that the provision in question in the proceedings, written in clear and definite, implies an absolute requirement for contracting authorities to exclude from the tendering companies that submit separate and competing, if such companies are linked by relations of control, such as those provided by national legislation at issue.
28. However, it would be counter to the effective application of Community law the systematic exclusion of companies that are linked together by the right to participate ad una medesima procedura di aggiudicazione di appalto pubblico. Una soluzione siffatta, infatti, ridurrebbe notevolmente la concorrenza a livello comunitario.
29. Pertanto, è giocoforza constatare che la normativa nazionale di cui trattasi nella causa principale, nella misura in cui estende il divieto di partecipazione ad una medesima procedura di aggiudicazione alle situazioni in cui il rapporto di controllo tra le imprese interessate rimane ininfluente sul comportamento di queste ultime nell’ambito di siffatte procedure, eccede quanto necessario per conseguire l’obiettivo di garantire l’applicazione dei principi di parità di trattamento e di trasparenza.
30. Una tale normativa, basata su una presunzione assoluta that the tenders submitted for the same contract by companies will necessarily have been influenced by one another, violates the principle of proportionality because it does not allow those companies the opportunity to demonstrate that, in their case, there are no real risk of occurrence of practices which jeopardize the transparency and distort competition among the bidders (see, to that effect, 3 March 2005, Joined Cases C-21/03 and C-34/03, Fabricom ECR . I-1559, paragraphs 33 and 35, and Michaniki, cit., paragraph 62).
31. In this regard it should be noted that clusters can have different forms and objectives, and do not necessarily exclude subsidiaries that enjoy a certain autonomy in the management of their commercial policy and their economic activities, particularly in the area of \u200b\u200bparticipation in public auctions. Moreover, as the Commission noted in its written observations, the relationship between enterprises of the same group may be governed by special provisions, such as type of contract, to ensure both the independence and confidentiality in the preparation of offers be submitted simultaneously by the companies within the same tender.
32. In this context, the task of determining whether the relationship of control at issue influenced sul contenuto delle rispettive offerte depositate dalle imprese interessate nell’ambito di una stessa procedura di aggiudicazione pubblica richiede un esame e una valutazione dei fatti che spetta alle amministrazioni aggiudicatrici effettuare. La constatazione di un’influenza siffatta, in qualunque forma, è sufficiente per escludere tali imprese dalla procedura di cui trattasi. Per contro, la semplice constatazione dell’esistenza di un rapporto di controllo tra le imprese considerate, risultante dall’assetto proprietario o dal numero dei diritti di voto che possono esercitarsi nelle assemblee ordinarie, non è sufficiente affinché l’amministrazione aggiudicatrice possa escludere automaticamente tali imprese dalla procedura di award, regardless of whether such a relationship had a real impact on their conduct in this procedure.
33. In light of the foregoing, the answer to the question referred is as follows:
- art. 29, first paragraph, of Directive 92/50 must be interpreted as not precluding a Member State, in addition to the grounds of exclusion under that provision, other causes of exclusion intended to ensure compliance with the principles of equality treatment and transparency, provided that such measures do not go beyond what is necessary to achieve that objective, and
- Community law precludes a national provision which, while pursuing the legitimate objectives of equal treatment of tenderers and of transparency in procedures for the award of public contracts, establish an absolute prohibition against companies in which there is a relationship of control or which are linked together, take part in simultaneous and competing for the same tender, without allowing them an opportunity to demonstrate that the relationship did not influence their behavior within that race.
Costs
34. For those parties in the main, these proceedings are a step before the national court, which is responsible for the decision on costs. The costs incurred by other parties to submit comments to the Court are not recoverable.
For these reasons, the Court (Fourth Chamber) hereby rules: Article
. 29, first paragraph, of June 18, 1992 Council Directive 92/50/EEC coordinating procedures for the award of public service should be interpreted as not precluding a Member State, in addition to the grounds exclusion under that provision, other causes of exclusion intended to ensure compliance with the principles of equal treatment and transparency, provided that such measures do not exceed what necessary to achieve that objective.
Community law precludes a national provision which, while pursuing the legitimate objectives of equal treatment of tenderers and of transparency in procedures for the award of public contracts, establish an absolute prohibition against companies among which there a relationship of control or which are linked together, take part in simultaneous and competing for the same tender, without allowing them an opportunity to demonstrate that the relationship did not influence their behavior in this race .
Signatures
E' contraria al diritto comunitario una norma nazionale (art. 34, comma 2, d.lgs. n. 163 del 2006) che stabilisca un divieto assoluto, a carico di imprese in situazioni di controllo o collegamento, di partecipare alla stessa gara d’appalto, senza lasciare loro la possibilità di dimostrare che il rapporto suddetto non ha influito sul loro rispettivo comportamento nell’ambito di tale gara
SENTENZA DELLA CORTE (Quarta Sezione)
19 maggio 2009
«Direttiva 92/50/CEE – Art. 29, primo comma – Appalti pubblici services - National legislation does not authorize participation in the same procedure for the award, concurrently, of companies with between them a relationship of control or decisive influence "
In Case C-538/07, concerning
preliminary ruling under Article. 234 EC by the Lombardy Regional Administrative Court by decision of 14 November 2007, received on 3 December 2007 in Case
Assitur Srl v
Chamber of Commerce, Industry and Agriculture of Milan and against
of SDA Express Courier SpA, the Italian Post SpA,
THE COURT (Fourth Chamber), composed of
. K. Lenaerts, President of the Chamber, R. Lapuerta de Silva, by D. E. Juhász (Rapporteur), G. Arestis and J. Malenovský, judges,
: sig. J. Mazák
Registrar: L. Hewlett, Principal Administrator
view the written procedure and further hearing on December 4, 2008,
considering the observations submitted
- for Assitur Srl, by. S. Quadrio,
- for the Chamber of Commerce, Industry and Agriculture of Milan, by. M. Bassani;
- the SDA Express Courier SpA, by A. Vallefuoco and V. Vallefuoco;
- the Italian Post SpA, by. A. Fratini;
- the Italian Government, by. IM Braguglia, acting as Agent, assisted by. G. Fiengo, State Advocate;
- the Commission of the European Communities, by. D. Kukovec and Mrs D. Recchia, acting as Agents,
after hearing the Advocate General at the hearing on February 10, 2009, gives the following Judgement
1. The request for a preliminary ruling concerns the interpretation of Article. 29, first paragraph, of June 18, 1992 Council Directive 92/50/EEC coordinating procedures for the award of public service contracts (OJ L 209, p. 1). and the general principles of Community law on public procurement.
2. The question was raised in proceedings between the Assitur Srl (hereinafter 'the Assitur) and the Chamber of Commerce, Industry and Agriculture of Milan, on the compatibility with the provisions and principles of the above national legislation prohibiting participation in a same procedure for the award of contract, in a separate and competing companies, among which there is a relationship in which one exercises control or significant influence over the other.
Context regulatory
Community legislation
3. Article. 29 of Directive 92/50, [now art. 45 of Directive 2005/18 - ed] out in Chapter 2 of the latter, entitled "Criteria for qualitative selection ', in its first paragraph reads as follows:
" may be excluded from any participation in a contract provider services which:
a) is in a state of bankruptcy, liquidation, receivership, composition with creditors, have suspended business activities or is in any analogous situation arising from a similar procedure provided for by applicable laws and regulations national
b) is the subject di procedimenti di dichiarazione di fallimento, di liquidazione coatta o di amministrazione controllata, di un concordato preventivo oppure di qualunque altro procedimento simile previsto dalle leggi o dai regolamenti nazionali;
c) sia stato condannato per un reato relativo alla condotta professionale di prestatore di servizi, con sentenza passata in giudicato;
d) si sia reso responsabile di gravi violazioni dei doveri professionali, provate con qualsiasi elemento documentabile dall’amministrazione [aggiudicatrice];
e) non abbia adempiuto obblighi riguardanti il pagamento dei contributi di sicurezza sociale conformemente alle disposizioni legislative del paese in cui è stabilito o di quello dell’amministrazione [aggiudicatrice];
f) has not fulfilled tax obligations in accordance with the laws of the country of the [authority];
g) is guilty of serious misrepresentation in supplying the information required under this chapter or fails to supply the information. "
4. Article. 3, No 4, second and third paragraphs of the June 14, 1993 Council Directive 93/37/EEC [now art. 63 of Directive 2005/18 - ed] the coordination of procedures for awarding public works contracts (OJ L 199, p.. 54), define the terms "associates" and "dominant influence" business. Regarding the public works concession contracts, It provides:
"Do not be regarded as third companies have been formed to obtain the concession or undertakings related to them.
"Related undertaking" means any undertaking over which the concessionaire can exert a dominant influence, directly or indirectly, or any undertaking which can exert a dominant influence [the concessionaire or which, as the concessionaire, is subject to dominant] of another undertaking by virtue of ownership, financial participation or the rules which govern it. The dominant influence is presumed when a company directly or indirectly in relation to another undertaking:
- holds a majority of the subscribed capital, or
- a majority of the votes attaching to the shares of the company, or
- can appoint more than half the members of the administrative, managerial or supervisory body. "
National legislation
5. The Directive 92/50 was transposed into Italian law by Legislative Decree 17 March 1995, No 157 (ordinary supplement to Official Gazette No 104 of May 6, 1995). This Decree does not include a ban on participation in the same procedure for the award of contract pubblico di servizi a carico di imprese tra le quali esistano rapporti di controllo o che siano tra loro collegate.
6. L’art. 10, comma 1 bis, della legge 11 febbraio 1994, n. 109, legge quadro in materia di lavori pubblici (GURI n. 41 del 19 febbraio 1994; in prosieguo: la «legge n. 109/1994»), [ora art. 34, comma 2, del decreto legislativo n. 163 del 2006 - n.d.r.] stabilisce quanto segue:
«Non possono partecipare alla medesima gara imprese che si trovino fra di loro in una delle situazioni di controllo previste dall’articolo 2359 del codice civile».
7. L’art. 2359 del codice civile italiano, intitolato «Società controllate e società collegate», è così formulato:
«Sono considerate società controllate:
1) le società in cui un’altra società dispone della maggioranza dei voti esercitabili nell’assemblea ordinaria;
2) le società in cui un’altra società dispone di voti sufficienti per esercitare un’influenza dominante nell’assemblea ordinaria;
3) le società che sono sotto influenza dominante di un’altra società in virtù di particolari vincoli contrattuali con essa.
Ai fini dell’applicazione dei numeri 1) e 2) del primo comma si computano anche i voti spettanti a società controllate, a società fiduciarie e a persona interposta; non is the voting rights on behalf of others.
are regarded as affiliated companies in which another company exercises significant influence. The influence is presumed when the ordinary can be exercised at least one-fifth or one tenth of the votes if the company's shares listed on regulated markets. "
8. The procedures for the award of public contracts in the works, services and supplies are currently governed, in their entirety, by legislative decree 12 April 2006, No 163 (Extra Ordinary Gazette No. 100 of May 2, 2006, hereinafter 'Legislative Decree No 163/2006). Article. 34, last paragraph of the decree legislation provides:
"They can not participate in the same race who are competing with each other in a relationship of control referred to in Article 2359 of the Civil Code. Contracting authorities shall also exclude competitors from the race for which ensure that its offerings are attributable to a single decision-making on the basis of unambiguous evidence. "
main proceedings and the question
9. By notice dated 30 September 2003, the Chamber of Commerce, Industry and Agriculture of Milan has launched a public auction for the award, on the basis of lowest price, the courier service for pickup and delivery correspondence and other documentation on behalf of the Chamber of Commerce and its own special CedCamera company for a period corresponding to the years 2004-2006. The basic bid amount of EUR 530 000, excluding VAT.
10. A review of the documentation submitted by the parties concerned, were the tenderers, SDA Express Courier SpA ('the SDA'), the Italian Post SpA ('the Italian Post Office) el'Assitur.
11. On November 12, 2003, Assitur requested exclusion from the tendering procedure of the SDA and the Italian Post Office, because of links between these two companies.
12. An inquiry carried out in this regard from the jury found that the entire share capital was held by the SDA Securities SpA, which in turn wholly owned by the Italian Post. However, since the decree 17 March 1995, n. 157, governing the procurement of services, does not prohibit participation in the same procedure for the award against companies with a controlling relationship between them, and that the verification had not brought to light serious and consistent evidence that would allow it to believe that the principles of competition and secrecy of the deals had been violated in this case, the contracting entity, with determination of the December 2 2003, no 712, decided to award the contract to the SDA, which had submitted the lowest bid.
13. The Assitur sought annulment of this decision before the Regional Administrative Court of Lombardy. It claimed that under Article. 10, paragraph 1 bis of Law 109/1994, in its opinion also applies to service contracts in the absence of other specific legislation, the contracting authority would have excluded from the tendering companies were together in a relationship of control under Article 2359 of Italian Civil Code.
14. The national court observes that Article. 10, paragraph 1 bis of Law 109/1994, which specifically governs the procurement of works, establishes a rebuttable presumption of knowability supply of the subsidiary by the parent. Consequently, economic operators concerned would not be considered by the legislature in a position to make deals that could establish the independence, professionalism and reliability you need, because they would be bound by a close community of interests. The provision that would prohibit such relationships with businesses so to participate concurrently in the same race and, in cases where it is found to be participating, these enterprises must be excluded from the procedure award. This court also notes that the concept of 'subsidiary' in Italian law is similar to that of "related company" as defined in Art. 3, No 4 of Directive 93/37.
15. The national court also notes that the Italian courts, a rule as that laid down in Art. 10, paragraph 1 bis of Law 109/1994 value of the rule of public policy, applicable in general. This rule is in fact the expression of a general principle that goes beyond the field of public works and also in the award in the services and supplies, despite the fact that, in the latter, there is no such specific provision. The legislature confirmed the jurisprudential approach with the adoption of Article. 34, last paragraph, of Legislative Decree No 163/2006, which currently governs all matters of public contracts, the latter legislation, however, is not applicable ratione temporis to this cause.
16. The court, however, is uncertain whether such an approach is compatible with the Community legal order and, in particular, with the art. 29 of Directive 92/50, as interpreted by the Court in February 9, 2006, Joined Cases C-226/04 and C-228/04, The Farm and a. (ECR. I-1347, paragraphs 21-23). That provision, which is the expression of the principle of 'favor participationis', namely the interest in that as many firms as possible take part in a tender, contains, according to that ruling, an exhaustive list of causes of exclusion from participation in a service contract. Those grounds do not include the situation of companies linked by a relationship of control or decisive influence.
17. The national court, however, considers that Article. 10, paragraph 1 bis of Law 109/1994 an expression of the principle of free competition, in that it seeks to penalize any collusion between firms under a tender procedure. Consequently, it would be adopted in strict conformity with the EC Treaty, in particular Articles. 81 et seq. the latter, and not really inconsistent with art. 29 of Directive 92/50.
18. In light of these considerations, the Lombardy Regional Administrative Court decided to stay proceedings and to refer the following question:
"If the art. 29 of Directive 92/50 (...), by providing seven grounds for exclusion from participation in service contracts, constitutes a "numerus clausus" hypothesis of impediments and thus preclude Article. 10, paragraph 1 bis of Law 109/94 (now replaced by. 34, last paragraph, of Legislative Decree No 163/06) to establish a ban on simultaneous participation in the tender for companies where there exists a relationship of control. " On the question
19. In order to answer that question, it should be noted that, according to the jurisprudence of the Court, the seven grounds for exclusion of a contractor from participating in a public contract under art. 29, first paragraph, of Directive 92/50 relating to their professional honesty, solvency and reliability of the person concerned, namely the professional qualities of the latter (See, to that effect, the House and Others., Paragraph 21).
20. The Court, with regard to art. 24, first paragraph, of Directive 93/37, which builds on the same grounds for exclusion under Article. 29, first paragraph, of Directive 92/50, stressed that the intention of the legislature was to consider this provision only in cases of exclusion related to the professional skills of those concerned. To the extent that it reproduces those grounds for exclusion, this list has been exhaustively considered by the Court (see, to that effect, December 16, 2008, Case C-213/07, Michaniki, not yet reported, paragraphs 42 and 43 and the case law cited).
21. The Court added that this list is not exhaustive, however, exclude the possibility for Member States to maintain or adopt, in addition to the grounds for exclusion, substantive rules, in particular, to ensure, in public procurement, the principles equal treatment of all bidders and transparency, which form the basis of the directives relating to the award of public contracts, provided, however, that respects the principle of proportionality (see, to that effect, Michaniki, cited ., paragraphs 44-48 and cases cited).
22. It is clear that a national legislative measures such as those at issue in this case is to avoid any possible form of collusion between the participants in the same procedure for the award of public contracts and to protect the equal treatment of candidates and the transparency of the procedure.
23. Can therefore be said that Article. 29, first paragraph, of Directive 92/50 does not preclude a Member State, in addition to the grounds of exclusion under that provision, other causes of exclusion intended to ensure compliance with the principles of equal treatment and transparency, provided that such measures do not go beyond what is necessary to achieve that objective.
24. It follows that compliance with Community law of national legislation in issue in this case must be examined again in light of the principle of proportionality.
25. In this regard, it should be noted that the Community rules on public procurement were adopted as part of the internal market, in which the free circulation and be eliminated restrictions on competition (see, to that effect , Judgement 21 February 2008 in Case C-412/04 Commission v Italy, ECR. I-619, paragraph 2).
26. In this context of a single internal market and effective competition, it is in the right Community assurances that the widest possible participation of bidders in a tender.
27. The order for reference that the provision in question in the proceedings, written in clear and definite, implies an absolute requirement for contracting authorities to exclude from the tendering companies that submit separate and competing, if such companies are linked by relations of control, such as those provided by national legislation at issue.
28. However, it would be counter to the effective application of Community law the systematic exclusion of companies that are linked together by the right to participate ad una medesima procedura di aggiudicazione di appalto pubblico. Una soluzione siffatta, infatti, ridurrebbe notevolmente la concorrenza a livello comunitario.
29. Pertanto, è giocoforza constatare che la normativa nazionale di cui trattasi nella causa principale, nella misura in cui estende il divieto di partecipazione ad una medesima procedura di aggiudicazione alle situazioni in cui il rapporto di controllo tra le imprese interessate rimane ininfluente sul comportamento di queste ultime nell’ambito di siffatte procedure, eccede quanto necessario per conseguire l’obiettivo di garantire l’applicazione dei principi di parità di trattamento e di trasparenza.
30. Una tale normativa, basata su una presunzione assoluta that the tenders submitted for the same contract by companies will necessarily have been influenced by one another, violates the principle of proportionality because it does not allow those companies the opportunity to demonstrate that, in their case, there are no real risk of occurrence of practices which jeopardize the transparency and distort competition among the bidders (see, to that effect, 3 March 2005, Joined Cases C-21/03 and C-34/03, Fabricom ECR . I-1559, paragraphs 33 and 35, and Michaniki, cit., paragraph 62).
31. In this regard it should be noted that clusters can have different forms and objectives, and do not necessarily exclude subsidiaries that enjoy a certain autonomy in the management of their commercial policy and their economic activities, particularly in the area of \u200b\u200bparticipation in public auctions. Moreover, as the Commission noted in its written observations, the relationship between enterprises of the same group may be governed by special provisions, such as type of contract, to ensure both the independence and confidentiality in the preparation of offers be submitted simultaneously by the companies within the same tender.
32. In this context, the task of determining whether the relationship of control at issue influenced sul contenuto delle rispettive offerte depositate dalle imprese interessate nell’ambito di una stessa procedura di aggiudicazione pubblica richiede un esame e una valutazione dei fatti che spetta alle amministrazioni aggiudicatrici effettuare. La constatazione di un’influenza siffatta, in qualunque forma, è sufficiente per escludere tali imprese dalla procedura di cui trattasi. Per contro, la semplice constatazione dell’esistenza di un rapporto di controllo tra le imprese considerate, risultante dall’assetto proprietario o dal numero dei diritti di voto che possono esercitarsi nelle assemblee ordinarie, non è sufficiente affinché l’amministrazione aggiudicatrice possa escludere automaticamente tali imprese dalla procedura di award, regardless of whether such a relationship had a real impact on their conduct in this procedure.
33. In light of the foregoing, the answer to the question referred is as follows:
- art. 29, first paragraph, of Directive 92/50 must be interpreted as not precluding a Member State, in addition to the grounds of exclusion under that provision, other causes of exclusion intended to ensure compliance with the principles of equality treatment and transparency, provided that such measures do not go beyond what is necessary to achieve that objective, and
- Community law precludes a national provision which, while pursuing the legitimate objectives of equal treatment of tenderers and of transparency in procedures for the award of public contracts, establish an absolute prohibition against companies in which there is a relationship of control or which are linked together, take part in simultaneous and competing for the same tender, without allowing them an opportunity to demonstrate that the relationship did not influence their behavior within that race.
Costs
34. For those parties in the main, these proceedings are a step before the national court, which is responsible for the decision on costs. The costs incurred by other parties to submit comments to the Court are not recoverable.
For these reasons, the Court (Fourth Chamber) hereby rules: Article
. 29, first paragraph, of June 18, 1992 Council Directive 92/50/EEC coordinating procedures for the award of public service should be interpreted as not precluding a Member State, in addition to the grounds exclusion under that provision, other causes of exclusion intended to ensure compliance with the principles of equal treatment and transparency, provided that such measures do not exceed what necessary to achieve that objective.
Community law precludes a national provision which, while pursuing the legitimate objectives of equal treatment of tenderers and of transparency in procedures for the award of public contracts, establish an absolute prohibition against companies among which there a relationship of control or which are linked together, take part in simultaneous and competing for the same tender, without allowing them an opportunity to demonstrate that the relationship did not influence their behavior in this race .
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