# C_2018436EN.01001901.xml

| 3.12.2018 | EN | Official Journal of the European Union | C 436/19 |
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3.12.2018

EN

Official Journal of the European Union

C 436/19

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Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 6 August 2018 — Pegaso Srl Servizi Fiduciari and Others v Poste Tutela SpA

(Case C-521/18)

(2018/C 436/24)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicants: Pegaso Srl Servizi Fiduciari, Sistemi di Sicurezza Srl, YW

Defendant: Poste Tutela SpA

Questions referred

| 1. | Should the company Poste Italiane s.p.a., on the basis of characteristics set out above, be classified as a ‘body governed by public law’ within the meaning of Article 3(1)(d) of Legislative Decree No 50 of 2016 and of the relevant EU directives (2014/23/EU (1), 2014/24/EU (2) and 2014/25/EU (3))? |
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1.

Should the company Poste Italiane s.p.a., on the basis of characteristics set out above, be classified as a ‘body governed by public law’ within the meaning of Article 3(1)(d) of Legislative Decree No 50 of 2016 and of the relevant EU directives (2014/23/EU (1), 2014/24/EU (2) and 2014/25/EU (3))?

| 2. | Should that classification be extended to include the wholly owned subsidiary company Poste Tutela s.p.a — whose merger with Poste Italiane s.p.a is already under way — bearing in mind what is stated in recital 46 of Directive 2014/23/EU concerning controlled legal persons? (see also, in this respect, judgment of the Court of Justice of the European Union (Fourth Chamber) of 5 October 2017, Case [C-567/15]: competitive tendering requirement for companies controlled by public authorities; judgment No 6211 of the Council of State, Chamber VI, of 24 November 2011.) |
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2.

Should that classification be extended to include the wholly owned subsidiary company Poste Tutela s.p.a — whose merger with Poste Italiane s.p.a is already under way — bearing in mind what is stated in recital 46 of Directive 2014/23/EU concerning controlled legal persons? (see also, in this respect, judgment of the Court of Justice of the European Union (Fourth Chamber) of 5 October 2017, Case [C-567/15]: competitive tendering requirement for companies controlled by public authorities; judgment No 6211 of the Council of State, Chamber VI, of 24 November 2011.)

| 3. | Are those companies, as contracting entities, required to conduct competitive tendering procedures only when awarding contracts in connection with activities carried out in the special sectors, pursuant to Directive 2014/25/EU — such contracting entities having to be deemed bodies governed by public law under the rules laid down in Part II of the Public Procurement Code — whilst, on the other hand, having unfettered freedom and being subject only to private-sector rules for contracts not connected to such sectors, bearing in mind the principles set out in recital 21 and Article 16 of Directive 2014/23/EU? |
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3.

Are those companies, as contracting entities, required to conduct competitive tendering procedures only when awarding contracts in connection with activities carried out in the special sectors, pursuant to Directive 2014/25/EU — such contracting entities having to be deemed bodies governed by public law under the rules laid down in Part II of the Public Procurement Code — whilst, on the other hand, having unfettered freedom and being subject only to private-sector rules for contracts not connected to such sectors, bearing in mind the principles set out in recital 21 and Article 16 of Directive 2014/23/EU?

| 4. | On the other hand, with regard to contracts considered not to be directly connected with the specific activities covered by the special sectors, are those companies, where they satisfy the requirements for being classified as bodies governed by public law, subject to the general Directive 2014/24/EU (and therefore to the rules governing competitive tendering procedures), even when performing primarily entrepreneurial activities under competitive market conditions, having developed from when they were originally established? |
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4.

On the other hand, with regard to contracts considered not to be directly connected with the specific activities covered by the special sectors, are those companies, where they satisfy the requirements for being classified as bodies governed by public law, subject to the general Directive 2014/24/EU (and therefore to the rules governing competitive tendering procedures), even when performing primarily entrepreneurial activities under competitive market conditions, having developed from when they were originally established?

| 5. | In any event, in the case of offices in which activities connected to the universal service and activities unrelated to it are both performed, may the concept of functionality, in connection with a service which is specifically in the public interest, be said to be inapplicable as regards contracts relating to ordinary and extraordinary maintenance, cleaning, furnishing, caretaking and storage services for such offices? |
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5.

In any event, in the case of offices in which activities connected to the universal service and activities unrelated to it are both performed, may the concept of functionality, in connection with a service which is specifically in the public interest, be said to be inapplicable as regards contracts relating to ordinary and extraordinary maintenance, cleaning, furnishing, caretaking and storage services for such offices?

| 6. | Finally, were the arguments of Poste Italiane s.p.a. to be endorsed, should the fact that a decision to organise a competitive tendering procedure has been taken without there being any obligation to conduct such a procedure — which is not subject to all the guarantees of transparency and equal treatment, as governed by the Public Procurement Code — and the fact that the decision is duly published without any further notice in that regard in the Official Journal of the Italian Republic and the Official Journal of the European Union, be regarded as incompatible with the established principle that the legitimate expectations of tenderers must be protected? |
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6.

Finally, were the arguments of Poste Italiane s.p.a. to be endorsed, should the fact that a decision to organise a competitive tendering procedure has been taken without there being any obligation to conduct such a procedure — which is not subject to all the guarantees of transparency and equal treatment, as governed by the Public Procurement Code — and the fact that the decision is duly published without any further notice in that regard in the Official Journal of the Italian Republic and the Official Journal of the European Union, be regarded as incompatible with the established principle that the legitimate expectations of tenderers must be protected?

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(1)  Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p. 1).

(2)  Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65).

(3)  Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ 2014 L 94, p. 243).

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