# C_2010051EN.01000802.xml

| 27.2.2010 | EN | Official Journal of the European Union | C 51/8 |
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27.2.2010

EN

Official Journal of the European Union

C 51/8

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Judgment of the Court (Fourth Chamber) of 23 December 2009 (reference for a preliminary ruling from the Consiglio di Stato (Italy)) — Consorzio Nazionale Interuniversitario per le Scienze del Mare (CoNISMa) v Regione Marche

(Case C-305/08) (1)

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(Public service contracts - Directive 2004/18 - Concepts of ‘contractor’, ‘supplier’ and ‘service provider’ - Concept of ‘economic operator’ - Universities and research institutes - Group (‘consorzio’) of universities and public authorities - Where the primary object under the statutes is non-profit-making - Admission to a procedure for the award of a public contract)

2010/C 51/12

Language of the case: Italian

Referring court

Referring court

Consiglio di Stato

Parties to the main proceedings

Parties to the main proceedings

Applicant: Consorzio Nazionale Interuniversitario per le Scienze del Mare (CoNISMa)

Applicant:

Defendant: Regione Marche

Defendant:

Re:

Re:

Reference for a preliminary ruling — Consiglio di Stato — Interpretation of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) — Exclusion of non-profit-making entities whose objects include research, such as universities, from a tendering procedure for the award of a public service contract for the acquisition of geophysical data

Operative part of the judgment

Operative part of the judgment

| 1. | The provisions of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, in particular those in Article 1(2)(a) and (8), first and second subparagraphs, which refer to the concept of ‘economic operator’, must be interpreted as permitting entities which are primarily non-profit-making and do not have the organisational structure of an undertaking or a regular presence on the market — such as universities and research institutes and consortia made up of universities and public authorities — to take part in a public tendering procedure for the award of a service contract. |
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1.

The provisions of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, in particular those in Article 1(2)(a) and (8), first and second subparagraphs, which refer to the concept of ‘economic operator’, must be interpreted as permitting entities which are primarily non-profit-making and do not have the organisational structure of an undertaking or a regular presence on the market — such as universities and research institutes and consortia made up of universities and public authorities — to take part in a public tendering procedure for the award of a service contract.

| 2. | Directive 2004/18 must be construed as precluding an interpretation of national legislation, such as that at issue in the main proceedings, which prohibits entities, such as universities and research institutes, which are primarily non-profit-making from taking part in a procedure for the award of a public contract, even though such entities are entitled under national law to offer the services covered by the contract in question. |
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2.

Directive 2004/18 must be construed as precluding an interpretation of national legislation, such as that at issue in the main proceedings, which prohibits entities, such as universities and research institutes, which are primarily non-profit-making from taking part in a procedure for the award of a public contract, even though such entities are entitled under national law to offer the services covered by the contract in question.

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(1)  OJ C 247, 27.09.2008.

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