# C_2004190EN.01001101.xml

| 24.7.2004 | EN | Official Journal of the European Union | C 190/11 |
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24.7.2004

EN

Official Journal of the European Union

C 190/11

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Reference for a preliminary ruling by the Tribunale Amministrativo Regionale del Lazio, Division Ia, by order of that court of 22 April 2004 in the case of Consorzio G.f.M. v Ministry of Defence and ‘La Cascina’ s.c.r.l. and Zilch s.r.l

(Case C-228/04)

(2004/C 190/18)

Reference has been made to the Court of Justice of the European Communities by order of Division Ia of the Tribunale Amministrativo Regionale del Lazio (Regional Administrative Court, Lazio) of 22 April 2004, received at the Court Registry on 2 June 2004, for a preliminary ruling in the case of Consorzio G.f.M. v Ministry of Defence and ‘La Cascina’ s.c.r.l. and Zilch s.r.l, on the following questions:

| 1) | Must subparagraphs (e) and (f) of Council Directive 92/50/EEC (1)of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, as regards only the abovementioned provisions, be interpreted as meaning that, where the Community legislature employs the expression ‘has not fulfilled obligations relating to the payment of social security contributions in accordance with the legal provisions of the country in which he is established or with those of the country of the contracting authority’ or ‘has not fulfilled obligations relating to the payment of taxes in accordance with the legal provisions of the country of the contracting authority’, the legislature intended to refer - solely and exclusively - to a situation in which the person concerned has - when the period prescribed for submitting applications to participate in a public tendering procedure expires (or in any event before the award of the contract, as indicated under point III.4 above) - fulfilled those obligations by paying in full and in time? |
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1)

Must subparagraphs (e) and (f) of Council Directive 92/50/EEC (1)of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, as regards only the abovementioned provisions, be interpreted as meaning that, where the Community legislature employs the expression ‘has not fulfilled obligations relating to the payment of social security contributions in accordance with the legal provisions of the country in which he is established or with those of the country of the contracting authority’ or ‘has not fulfilled obligations relating to the payment of taxes in accordance with the legal provisions of the country of the contracting authority’, the legislature intended to refer - solely and exclusively - to a situation in which the person concerned has - when the period prescribed for submitting applications to participate in a public tendering procedure expires (or in any event before the award of the contract, as indicated under point III.4 above) - fulfilled those obligations by paying in full and in time?

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| 2) | Consequently, must the Italian national implementing measure (Article 12 (d) and (e) of Legislative Decree No 157 of 17 March 1995) – in so far as, unlike the Community provision cited above, it allows the exclusion from tendering procedures of persons who ‘are not in compliance in respect of obligations relating to the payment of social security contributions for employees, in accordance with Italian legislation or the legislation of the State in which they are established’ or who ‘are not in compliance in respect of obligations relating to the payment of taxes, in accordance with Italian legislation or the legislation of the State in which they are established’ - be interpreted with reference solely to the failure - verifiable at the date mentioned above (the expiry of the period prescribed for submitting applications to participate or immediately before the award, even provisional, of the contract) - to fulfil those obligations, without any importance being attached to subsequent ‘regularisation’ of their position? |
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2)

Consequently, must the Italian national implementing measure (Article 12 (d) and (e) of Legislative Decree No 157 of 17 March 1995) – in so far as, unlike the Community provision cited above, it allows the exclusion from tendering procedures of persons who ‘are not in compliance in respect of obligations relating to the payment of social security contributions for employees, in accordance with Italian legislation or the legislation of the State in which they are established’ or who ‘are not in compliance in respect of obligations relating to the payment of taxes, in accordance with Italian legislation or the legislation of the State in which they are established’ - be interpreted with reference solely to the failure - verifiable at the date mentioned above (the expiry of the period prescribed for submitting applications to participate or immediately before the award, even provisional, of the contract) - to fulfil those obligations, without any importance being attached to subsequent ‘regularisation’ of their position?

| 3) | Or, conversely (if, in the light of the indications set out in question 2 above, the national measure is held not to be in harmony with the rationale and function of the Community provision), may the national legislature be regarded, in the light of the limitations to which it is subject for the purpose of giving effect to the Community rules contained in the Directive at issue, as being entitled to introduce the option of allowing the admission to a tendering procedure of persons who, although not ‘in compliance’ when the period prescribed for participation in the procedure expires, nevertheless show that they can regularise their position (and have taken positive steps to do so) before the award of the contract? |
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3)

Or, conversely (if, in the light of the indications set out in question 2 above, the national measure is held not to be in harmony with the rationale and function of the Community provision), may the national legislature be regarded, in the light of the limitations to which it is subject for the purpose of giving effect to the Community rules contained in the Directive at issue, as being entitled to introduce the option of allowing the admission to a tendering procedure of persons who, although not ‘in compliance’ when the period prescribed for participation in the procedure expires, nevertheless show that they can regularise their position (and have taken positive steps to do so) before the award of the contract?

| 4) | And, if the interpretation referred to in question 3 above is held to be workable - thus permitting the introduction of more flexible rules than would be allowed on a stricter interpretation of the ‘fulfilment’ of obligations referred to by the Community legislature - do such rules conflict with fundamental Community principles, such as the principle of equal treatment for all citizens of the Union, or – with regard only to public tendering procedures – that of equal conditions for all persons who have applied for admission to such procedures? |
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4)

And, if the interpretation referred to in question 3 above is held to be workable - thus permitting the introduction of more flexible rules than would be allowed on a stricter interpretation of the ‘fulfilment’ of obligations referred to by the Community legislature - do such rules conflict with fundamental Community principles, such as the principle of equal treatment for all citizens of the Union, or – with regard only to public tendering procedures – that of equal conditions for all persons who have applied for admission to such procedures?

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(1)  OJ L 209 of 24.7.1992, p. 1.

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