# C_2011347EN.01002001.xml

| 26.11.2011 | EN | Official Journal of the European Union | C 347/20 |
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26.11.2011

EN

Official Journal of the European Union

C 347/20

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Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 30 September 2011 — Vivaio dei Molini Azienda Agricola Porro Savoldi ss v Autorità per la Vigilanza sui Contratti Pubblici di lavori, servizi e forniture

(Case C-502/11)

2011/C 347/30

Language of the case: Italian

Referring court

Referring court

Consiglio di Stato

Parties to the main proceedings

Parties to the main proceedings

Appellant: Vivaio dei Molini Azienda Agricola Porro Savoldi ss

Appellant:

Respondent: Autorità per la Vigilanza sui Contratti Pubblici di lavori, servizi e forniture

Respondent:

Questions referred

Questions referred

| 1. | Does Community law and, in particular, Article 6 of Directive 93/37/EEC (1) (subsequently, Article 4 of Directive 2004/18/EC (2)) preclude, in principle, a provision of national law (such as Article 10(1)(a) of Law No 109/1994 (subsequently, Article 34(1)(a) of Legislative Decree No 163/2006), which reserves the right to participate in public tendering procedures to undertakings which are engaged in a commercial activity, thereby excluding certain operators (such as civil-law partnerships) which do not ordinarily and predominantly engage in that type of activity; or is that prohibition reasonable and non-discriminatory in the light of the special rules governing civil-law partnerships and their special asset structure? |
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1.

Does Community law and, in particular, Article 6 of Directive 93/37/EEC (1) (subsequently, Article 4 of Directive 2004/18/EC (2)) preclude, in principle, a provision of national law (such as Article 10(1)(a) of Law No 109/1994 (subsequently, Article 34(1)(a) of Legislative Decree No 163/2006), which reserves the right to participate in public tendering procedures to undertakings which are engaged in a commercial activity, thereby excluding certain operators (such as civil-law partnerships) which do not ordinarily and predominantly engage in that type of activity; or is that prohibition reasonable and non-discriminatory in the light of the special rules governing civil-law partnerships and their special asset structure?

1

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In the event that the first question is answered in the negative, the following question is also referred to the Court of Justice for a preliminary ruling:

| 2. | Does Community law and, in particular, Article 6 of Directive 93/37/EEC (subsequently, Article 4 of Directive 2004/18/EC) and the principle of the freedom of entities admitted to participate in tendering procedures to adopt a particular legal form, allow the national legislature to place limits on the legal capacity of a contractor (or, according to the definition given in Directive 2004/18/EC, an economic operator), in the light of the special features of the rules of national law governing such contractors, prohibiting them from participating in public tendering procedures, or is such a restriction in breach of the principles of reasonableness and non-discrimination? |
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2.

Does Community law and, in particular, Article 6 of Directive 93/37/EEC (subsequently, Article 4 of Directive 2004/18/EC) and the principle of the freedom of entities admitted to participate in tendering procedures to adopt a particular legal form, allow the national legislature to place limits on the legal capacity of a contractor (or, according to the definition given in Directive 2004/18/EC, an economic operator), in the light of the special features of the rules of national law governing such contractors, prohibiting them from participating in public tendering procedures, or is such a restriction in breach of the principles of reasonableness and non-discrimination?

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(1)  OJ L 199, p. 54.

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(2)  OJ L 134, p. 114.

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