# C_2015065EN.01001401.xml

| 23.2.2015 | EN | Official Journal of the European Union | C 65/14 |
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23.2.2015

EN

Official Journal of the European Union

C 65/14

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Judgment of the Court (Fifth Chamber) of 18 December 2014 (request for a preliminary ruling from the Consiglio di Stato — Italy) — Azienda Ospedaliero-Universitaria di Careggi-Firenze v Data Medical Service Srl

(Case C-568/13) (1)

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((Reference for a preliminary ruling - Public service contracts - Directive 92/50/EEC - Articles 1(c) and 37 - Directive 2004/18/EC - First subparagraph of Article 1(8) and Article 55 - Concepts of ‘service provider’ and ‘economic operator’ - Public university hospital - Entity with legal personality and business and organisational autonomy - Principally non-profit-making activity - Institutional purpose of offering health services - Possibility of offering similar services on the market - Admission to participate in a tendering procedure for the award of a public contract))

(2015/C 065/19)

Language of the case: Italian

Referring court

Referring court

Consiglio di Stato

Parties to the main proceedings

Parties to the main proceedings

Applicant: Azienda Ospedaliero-Universitaria di Careggi-Firenze

Applicant:

Defendant: Data Medical Service Srl

Defendant:

Operative part of the judgment

Operative part of the judgment

| 1) | Article 1(c) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts precludes national legislation which excludes a public hospital, such as that at issue in the main proceedings, from participation in tendering procedures for the award of public contracts as a result of its status as a public economic entity, if and in so far as that entity is authorised to operate on the market in accordance with its institutional and statutory objectives; |
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1)

Article 1(c) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts precludes national legislation which excludes a public hospital, such as that at issue in the main proceedings, from participation in tendering procedures for the award of public contracts as a result of its status as a public economic entity, if and in so far as that entity is authorised to operate on the market in accordance with its institutional and statutory objectives;

| 2) | The provisions of Directive 92/50, and in particular the general principles of freedom of competition, non-discrimination and proportionality which underlie that directive, must be interpreted as not precluding national legislation which allows a public hospital, such as that at issue in the main proceedings, participating in a tendering procedure to submit a tender which cannot be matched by any competitors as a result of the public funding which it receives. However, in the course of the examination of the abnormally low character of a tender on the basis of Article 37 of that directive, the contracting authority may take into consideration the existence of public funding which such an entity receives in the light of the option to reject that tender. |
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2)

The provisions of Directive 92/50, and in particular the general principles of freedom of competition, non-discrimination and proportionality which underlie that directive, must be interpreted as not precluding national legislation which allows a public hospital, such as that at issue in the main proceedings, participating in a tendering procedure to submit a tender which cannot be matched by any competitors as a result of the public funding which it receives. However, in the course of the examination of the abnormally low character of a tender on the basis of Article 37 of that directive, the contracting authority may take into consideration the existence of public funding which such an entity receives in the light of the option to reject that tender.

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(1)  OJ C 52, 22.2.2014.

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