# C_2006281EN.01002202.xml

| 18.11.2006 | EN | Official Journal of the European Union | C 281/22 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/22

---

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 30 August 2006 — Frigerio Luigi & C. S.n.c. v Comune di Triuggio

(Case C-357/06)

(2006/C 281/36)

Language of the case: Italian

Referring court

The Tribunale Amministrativo Regionale per la Lombardia

Parties to the main proceedings

Applicant: Frigerio Luigi & C. S.n.c.

Applicant:

Defendant: Comune di Triuggio

Defendant:

Questions referred

| 1. | Does Article 4(1) of Directive 2004/18/EC (1), or the analogous Article 26(2) of Directive 92/50/EEC (2) (in the event that the latter is regarded as the legislative point of reference), according to which candidates and tenderers who, on the basis of the legislation of the Member State in which they are established, are authorised to provide the service at issue may not be rejected solely because, under the provisions in force in the Member State in which the contract is to be awarded, they would be required to be natural persons or legal persons, lay down a fundamental principle of Community law such as to override the formal limitation laid down by Article 113(5) of Legislative Decree No 267/2000 and by Articles 2(6) and 15(1) of Regional Lombardy Law No 26 of 12 December 2003, and is it therefore capable of compelling compliance in such a way as to allow persons not having the status of joint stock companies to participate in tendering procedures? |
| --- | --- |

1.

Does Article 4(1) of Directive 2004/18/EC (1), or the analogous Article 26(2) of Directive 92/50/EEC (2) (in the event that the latter is regarded as the legislative point of reference), according to which candidates and tenderers who, on the basis of the legislation of the Member State in which they are established, are authorised to provide the service at issue may not be rejected solely because, under the provisions in force in the Member State in which the contract is to be awarded, they would be required to be natural persons or legal persons, lay down a fundamental principle of Community law such as to override the formal limitation laid down by Article 113(5) of Legislative Decree No 267/2000 and by Articles 2(6) and 15(1) of Regional Lombardy Law No 26 of 12 December 2003, and is it therefore capable of compelling compliance in such a way as to allow persons not having the status of joint stock companies to participate in tendering procedures?

1

2

| 2. | In the event that the Court does not consider the above rules to be the expression of a fundamental principle of Community law, does Article 4(1) of Directive 2004/18/EC or the analogous Article 26(2) of Directive 92/50 (in the event that the latter is regarded as the legislative point of reference) constitute, rather, an implicit corollary or a ‘derivative principle’ of the principle of competition, viewed in conjunction with those concerning administrative transparency and non-discrimination on grounds of nationality, and does it therefore, as such, have immediate binding effect and take precedence over any possibly conflicting domestic provisions laid down by Member States to govern public works contracts falling outside the scope of the direct applicability of Community law? |
| --- | --- |

2.

In the event that the Court does not consider the above rules to be the expression of a fundamental principle of Community law, does Article 4(1) of Directive 2004/18/EC or the analogous Article 26(2) of Directive 92/50 (in the event that the latter is regarded as the legislative point of reference) constitute, rather, an implicit corollary or a ‘derivative principle’ of the principle of competition, viewed in conjunction with those concerning administrative transparency and non-discrimination on grounds of nationality, and does it therefore, as such, have immediate binding effect and take precedence over any possibly conflicting domestic provisions laid down by Member States to govern public works contracts falling outside the scope of the direct applicability of Community law?

| 3. | Are Article 113(5) of Legislative Decree No 267/2000 and Articles 2(6) and 15(1) of the Regional Lombardy Law of 12 December 2003 compatible with the Community principles set out in Article 39 (free movement of workers within the Community), Article 43 (freedom of establishment), Articles 48 and 81 (agreements restricting competition) of the Treaty establishing the European Community, and therefore, in the event of a conflict being identified, must the abovementioned national provisions be disapplied as conflicting with Community provisions that have direct binding effect and take precedence over domestic provisions? |
| --- | --- |

3.

Are Article 113(5) of Legislative Decree No 267/2000 and Articles 2(6) and 15(1) of the Regional Lombardy Law of 12 December 2003 compatible with the Community principles set out in Article 39 (free movement of workers within the Community), Article 43 (freedom of establishment), Articles 48 and 81 (agreements restricting competition) of the Treaty establishing the European Community, and therefore, in the event of a conflict being identified, must the abovementioned national provisions be disapplied as conflicting with Community provisions that have direct binding effect and take precedence over domestic provisions?

| 4. | Are Article 113(5) of Legislative Decree No 267/2000 and Articles 2(6) and 15(1) of the Regional Lombardy Law of 12 December 2003 compatible with Article 9(1) of Directive 75/442/EEC or the analogous Article 7(2) of Directive 2006/12/EC of 5 April 2006 (in the event that the latter is regarded as the legislative point of reference), which provide, respectively, that ‘any establishment or undertaking which carries out the operations specified in Annex II A must obtain a permit from the competent authority referred to in Article 6.’ and ‘[t]he plans referred to in paragraph 1 may, for example, cover: (a) the natural or legal persons empowered to carry out waste management’? |
| --- | --- |

4.

Are Article 113(5) of Legislative Decree No 267/2000 and Articles 2(6) and 15(1) of the Regional Lombardy Law of 12 December 2003 compatible with Article 9(1) of Directive 75/442/EEC or the analogous Article 7(2) of Directive 2006/12/EC of 5 April 2006 (in the event that the latter is regarded as the legislative point of reference), which provide, respectively, that ‘any establishment or undertaking which carries out the operations specified in Annex II A must obtain a permit from the competent authority referred to in Article 6.’ and ‘[t]he plans referred to in paragraph 1 may, for example, cover: (a) the natural or legal persons empowered to carry out waste management’?

---

(1)  OJ L 134, p. 114.

1

(2)  OJ L 209, p. 1.

2

---