# C_2013086EN.01001101.xml

| 23.3.2013 | EN | Official Journal of the European Union | C 86/11 |
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23.3.2013

EN

Official Journal of the European Union

C 86/11

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Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 15 January 2013 — Ministero dell’Interno v Fastweb S.p.a.

(Case C-19/13)

2013/C 86/18

Language of the case: Italian

Referring court

Referring court

Consiglio di Stato

Parties to the main proceedings

Parties to the main proceedings

Applicant: Ministero dell’Interno

Applicant:

Defendant: Fastweb S.p.a.

Defendant:

Questions referred

Questions referred

| 1. | Must Article 2d(4) of Directive 2007/66/EC (1) be construed as meaning that if, before awarding the contract directly to a specific economic operator, selected without prior publication of a contract notice, an awarding authority published the notice for voluntary ex ante transparency in the Official Journal of the European Union and waited at least 10 days before concluding the contract, the national court is — always and in any event — precluded from declaring the contract to be ineffective, even if it is established that there has been an infringement of the provisions permitting, subject to certain conditions, the award of a contract without a competitive tendering procedure? |
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1.

Must Article 2d(4) of Directive 2007/66/EC (1) be construed as meaning that if, before awarding the contract directly to a specific economic operator, selected without prior publication of a contract notice, an awarding authority published the notice for voluntary ex ante transparency in the Official Journal of the European Union and waited at least 10 days before concluding the contract, the national court is — always and in any event — precluded from declaring the contract to be ineffective, even if it is established that there has been an infringement of the provisions permitting, subject to certain conditions, the award of a contract without a competitive tendering procedure?

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Official Journal of the European Union

| 2. | Is Article 2d(4) of Directive 2007/66/EC — if interpreted as making it impossible to declare a contract ineffective, in accordance with national law (Article 122 of the Code of administrative procedure), even though the national court has established an infringement of the provisions permitting, subject to certain conditions, the award of a contract without a competitive tendering procedure — compatible with the principles of equality of the parties, of non-discrimination and of protecting competition, and also of guaranteeing the right to an effective remedy enshrined in Article 47 of the Charter of Fundamental Rights of the European Union? |
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2.

Is Article 2d(4) of Directive 2007/66/EC — if interpreted as making it impossible to declare a contract ineffective, in accordance with national law (Article 122 of the Code of administrative procedure), even though the national court has established an infringement of the provisions permitting, subject to certain conditions, the award of a contract without a competitive tendering procedure — compatible with the principles of equality of the parties, of non-discrimination and of protecting competition, and also of guaranteeing the right to an effective remedy enshrined in Article 47 of the Charter of Fundamental Rights of the European Union?

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(1)  Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (OJ 2007 L 335, p. 31).

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