# C_2012319EN.01000402.xml

| 20.10.2012 | EN | Official Journal of the European Union | C 319/4 |
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20.10.2012

EN

Official Journal of the European Union

C 319/4

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Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per le Marche (Italy), lodged on 16 August 2012 — Comune di Ancona v Regione Marche

(Case C-388/12)

2012/C 319/06

Language of the case: Italian

Referring court

Referring court

Tribunale Amministrativo Regionale per le Marche

Parties to the main proceedings

Parties to the main proceedings

Applicant: Comune di Ancona

Applicant:

Defendant: Regione Marche

Defendant:

Questions referred

Questions referred

| 1. | Must Article 30(4) of Regulation (EC) No 1260/1999 (1) be interpreted as meaning that it is not possible to undertake an assessment of whether the assignment results in substantial income for the contracting authority and undue advantages for the concession-holder without first establishing whether the project has undergone substantial modification?
  If the answer to Question 1 is in the affirmative:






  (a) | Does that provision refer only to physical modifications — in the sense that the structure set in place is not as specified in relation to the project approved for funding — or does it also include modifications in regard to function and, in the latter case, has there been substantial modification if the structure is used ‘also’ — but not predominantly — for activities other than those envisaged in the notice or in the application to participate in the notice? |
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1.

Must Article 30(4) of Regulation (EC) No 1260/1999 (1) be interpreted as meaning that it is not possible to undertake an assessment of whether the assignment results in substantial income for the contracting authority and undue advantages for the concession-holder without first establishing whether the project has undergone substantial modification?

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If the answer to Question 1 is in the affirmative:

(a)

Does that provision refer only to physical modifications — in the sense that the structure set in place is not as specified in relation to the project approved for funding — or does it also include modifications in regard to function and, in the latter case, has there been substantial modification if the structure is used ‘also’ — but not predominantly — for activities other than those envisaged in the notice or in the application to participate in the notice?

If the answer to Question 1 is in the negative:

| (b) | Does that provision, with reference to those cases in which the public funding is used to carry out works the management of which is likely to be financially significant, apply only at the stage when the project is being carried out, or does the requirement to comply with the rules on a competitive tendering procedure also continue to apply when the project management is assigned? |
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(b)

Does that provision, with reference to those cases in which the public funding is used to carry out works the management of which is likely to be financially significant, apply only at the stage when the project is being carried out, or does the requirement to comply with the rules on a competitive tendering procedure also continue to apply when the project management is assigned?

| 2. | Must Article 30(4) of Regulation (EC) No 1260/1999 be interpreted as meaning that the process of establishing whether contracting out the management to third parties actually gives rise to substantial net income or positions of undue advantage for a firm or public body constitutes a stage which, logically and legally, follows on after the preliminary question (that is to say, the question whether a competitive tendering procedure must be held), or must account also be taken, in determining the existence of the obligation to hold a competitive tendering procedure, of the actual rules governing the contractual relationship? |
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2.

Must Article 30(4) of Regulation (EC) No 1260/1999 be interpreted as meaning that the process of establishing whether contracting out the management to third parties actually gives rise to substantial net income or positions of undue advantage for a firm or public body constitutes a stage which, logically and legally, follows on after the preliminary question (that is to say, the question whether a competitive tendering procedure must be held), or must account also be taken, in determining the existence of the obligation to hold a competitive tendering procedure, of the actual rules governing the contractual relationship?

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(1)  Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds (OJ 1999 L 161, p. 1).

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