# 62020CJ0719

JUDGMENT OF THE COURT (Fourth Chamber)

12 May 2022 (
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(Reference for a preliminary ruling – Public procurement – Waste management – In-house award – Directive 2014/24/EU – Articles 12 and 72 – Loss of the conditions of ‘similar control’ following a concentration of undertakings – Possibility for the successor operator to continue to provide the service)

In Case C‐719/20,

REQUEST for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Council of State, Italy), made by decision of 18 November 2020, received at the Court on 30 December 2020, in the proceedings

Comune di Lerici

Comune di Lerici

v

Provincia di La Spezia,

Provincia di La Spezia,

other parties:

IREN SpA,

IREN SpA,

ACAM Ambiente SpA,

ACAM Ambiente SpA,

THE COURT (Fourth Chamber),

composed of C. Lycourgos (Rapporteur), President of the Chamber, S. Rodin, J.‐C. Bonichot, L.S. Rossi and O. Spineanu-Matei, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

| – | the Comune di Lerici, by A. Fantappié and M. Clarich, avvocati, |
| --- | --- |

–

the Comune di Lerici, by A. Fantappié and M. Clarich, avvocati,

| – | the Provincia di La Spezia, by P. Piciocchi, avvocato, |
| --- | --- |

–

the Provincia di La Spezia, by P. Piciocchi, avvocato,

| – | ACAM Ambiente SpA and IREN SpA, by D. Anselmi, avvocatessa, and A. Lolli, avvocato, |
| --- | --- |

–

ACAM Ambiente SpA and IREN SpA, by D. Anselmi, avvocatessa, and A. Lolli, avvocato,

| – | the Italian Government, by G. Palmieri, acting as Agent, and by S.L. Vitale, avvocato dello Stato, |
| --- | --- |

–

the Italian Government, by G. Palmieri, acting as Agent, and by S.L. Vitale, avvocato dello Stato,

| – | the Austrian Government, by J. Schmoll, acting as Agent, |
| --- | --- |

–

the Austrian Government, by J. Schmoll, acting as Agent,

| – | the European Commission, by G. Wils, G. Gattinara and P. Ondrůšek, acting as Agents, |
| --- | --- |

–

the European Commission, by G. Wils, G. Gattinara and P. Ondrůšek, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

Judgment

| 1 | This request for a preliminary ruling concerns the interpretation of Article 12 of 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). |
| --- | --- |

1

This request for a preliminary ruling concerns the interpretation of Article 12 of 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).

| 2 | The request was made in the course of proceedings between the Comune di Lerici (Municipality of Lerici, Italy) and the Provincia di La Spezia (Province of La Spezia, Italy) regarding the approval, by the latter, of a plan awarding ACAM Ambiente SpA the management of the municipal waste service until 2028. |
| --- | --- |

2

The request was made in the course of proceedings between the Comune di Lerici (Municipality of Lerici, Italy) and the Provincia di La Spezia (Province of La Spezia, Italy) regarding the approval, by the latter, of a plan awarding ACAM Ambiente SpA the management of the municipal waste service until 2028.

Legal framework

Legal framework

European Union law

European Union law

| 3 | Article 12 of Directive 2014/24 provides:
  ‘1.   A public contract awarded by a contracting authority to a legal person governed by private or public law shall fall outside the scope of this Directive where all of the following conditions are fulfilled:





  (a) | the contracting authority exercises over the legal person concerned a control which is similar to that which it exercises over its own departments; |
| --- | --- | --- |

3

Article 12 of Directive 2014/24 provides:

‘1.   A public contract awarded by a contracting authority to a legal person governed by private or public law shall fall outside the scope of this Directive where all of the following conditions are fulfilled:

(a)

the contracting authority exercises over the legal person concerned a control which is similar to that which it exercises over its own departments;

| (b) | more than 80% of the activities of the controlled legal person are carried out in the performance of tasks entrusted to it by the controlling contracting authority or by other legal persons controlled by that contracting authority; and |
| --- | --- |

(b)

more than 80% of the activities of the controlled legal person are carried out in the performance of tasks entrusted to it by the controlling contracting authority or by other legal persons controlled by that contracting authority; and

| (c) | there is no direct private capital participation in the controlled legal person with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence on the controlled legal person. |
| --- | --- |

(c)

there is no direct private capital participation in the controlled legal person with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence on the controlled legal person.

A contracting authority shall be deemed to exercise over a legal person a control similar to that which it exercises over its own departments within the meaning of point (a) of the first subparagraph where it exercises a decisive influence over both strategic objectives and significant decisions of the controlled legal person. Such control may also be exercised by another legal person, which is itself controlled in the same way by the contracting authority.

2.   Paragraph 1 also applies where a controlled legal person which is a contracting authority awards a contract to its controlling contracting authority, or to another legal person controlled by the same contracting authority, provided that there is no direct private capital participation in the legal person being awarded the public contract with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence on the controlled legal person.

3.   A contracting authority, which does not exercise over a legal person governed by private or public law control within the meaning of paragraph 1, may nevertheless award a public contract to that legal person without applying this Directive where all of the following conditions are fulfilled.

| (a) | the contracting authority exercises jointly with other contracting authorities a control over that legal person which is similar to that which they exercise over their own departments; |
| --- | --- |

(a)

the contracting authority exercises jointly with other contracting authorities a control over that legal person which is similar to that which they exercise over their own departments;

| (b) | more than 80% of the activities of that legal person are carried out in the performance of tasks entrusted to it by the controlling contracting authorities or by other legal persons controlled by the same contracting authorities; and |
| --- | --- |

(b)

more than 80% of the activities of that legal person are carried out in the performance of tasks entrusted to it by the controlling contracting authorities or by other legal persons controlled by the same contracting authorities; and

| (c) | there is no direct private capital participation in the controlled legal person with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence on the controlled legal person.
  For the purposes of point (a) of the first subparagraph, contracting authorities exercise joint control over a legal person where all of the following conditions are fulfilled:





  (i) | the decision-making bodies of the controlled legal person are composed of representatives of all participating contracting authorities. Individual representatives may represent several or all of the participating contracting authorities; |
| --- | --- | --- |

(c)

there is no direct private capital participation in the controlled legal person with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence on the controlled legal person.

For the purposes of point (a) of the first subparagraph, contracting authorities exercise joint control over a legal person where all of the following conditions are fulfilled:

(i)

the decision-making bodies of the controlled legal person are composed of representatives of all participating contracting authorities. Individual representatives may represent several or all of the participating contracting authorities;

| (ii) | those contracting authorities are able to jointly exert decisive influence over the strategic objectives and significant decisions of the controlled legal person; and |
| --- | --- |

(ii)

those contracting authorities are able to jointly exert decisive influence over the strategic objectives and significant decisions of the controlled legal person; and

| (iii) | the controlled legal person does not pursue any interests which are contrary to those of the controlling contracting authorities. |
| --- | --- |

(iii)

the controlled legal person does not pursue any interests which are contrary to those of the controlling contracting authorities.

4.   A contract concluded exclusively between two or more contracting authorities shall fall outside the scope of this Directive where all of the following conditions are fulfilled:

| (a) | the contract establishes or implements a cooperation between the participating contracting authorities with the aim of ensuring that public services they have to perform are provided with a view to achieving objectives they have in common; |
| --- | --- |

(a)

the contract establishes or implements a cooperation between the participating contracting authorities with the aim of ensuring that public services they have to perform are provided with a view to achieving objectives they have in common;

| (b) | the implementation of that cooperation is governed solely by considerations relating to the public interest; and |
| --- | --- |

(b)

the implementation of that cooperation is governed solely by considerations relating to the public interest; and

| (c) | the participating contracting authorities perform on the open market less than 20% of the activities concerned by the cooperation. |
| --- | --- |

(c)

the participating contracting authorities perform on the open market less than 20% of the activities concerned by the cooperation.

5.   For the determination of the percentage of activities referred to in point (b) of the first subparagraph of paragraph 1, point (b) of the first subparagraph of paragraph 3 and point (c) of paragraph 4, the average total turnover, or an appropriate alternative activity-based measure such as costs incurred by the relevant legal person or contracting authority with respect to services, supplies and works for the three years preceding the contract award shall be taken into consideration.

Where, because of the date on which the relevant legal person or contracting authority was created or commenced activities or because of a reorganisation of its activities, the turnover, or alternative activity based measure such as costs, are either not available for the preceding three years or no longer relevant, it shall be sufficient to show that the measurement of activity is credible, particularly by means of business projections.’

| 4 | In accordance with Article 18(1) of that directive:
  ‘Contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.
  The design of the procurement shall not be made with the intention of excluding it from the scope of this Directive or of artificially narrowing competition. Competition shall be considered to be artificially narrowed where the design of the procurement is made with the intention of unduly favouring or disadvantaging certain economic operators.’ |
| --- | --- |

4

In accordance with Article 18(1) of that directive:

‘Contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.

The design of the procurement shall not be made with the intention of excluding it from the scope of this Directive or of artificially narrowing competition. Competition shall be considered to be artificially narrowed where the design of the procurement is made with the intention of unduly favouring or disadvantaging certain economic operators.’

| 5 | Article 67(4) of that directive provides:
  ‘Award criteria shall not have the effect of conferring an unrestricted freedom of choice on the contracting authority. They shall ensure the possibility of effective competition and shall be accompanied by specifications that allow the information provided by the tenderers to be effectively verified in order to assess how well the tenders meet the award criteria. In case of doubt, contracting authorities shall verify effectively the accuracy of the information and proof provided by the tenderers.’ |
| --- | --- |

5

Article 67(4) of that directive provides:

‘Award criteria shall not have the effect of conferring an unrestricted freedom of choice on the contracting authority. They shall ensure the possibility of effective competition and shall be accompanied by specifications that allow the information provided by the tenderers to be effectively verified in order to assess how well the tenders meet the award criteria. In case of doubt, contracting authorities shall verify effectively the accuracy of the information and proof provided by the tenderers.’

| 6 | Article 72 of that directive states:
  ‘1.   Contracts and framework agreements may be modified without a new procurement procedure in accordance with this Directive in any of the following cases:
  ...





  (d) | where a new contractor replaces the one to which the contracting authority had initially awarded the contract as a consequence of either: |
| --- | --- | --- |

6

Article 72 of that directive states:

‘1.   Contracts and framework agreements may be modified without a new procurement procedure in accordance with this Directive in any of the following cases:

...

(d)

where a new contractor replaces the one to which the contracting authority had initially awarded the contract as a consequence of either:

...

| (ii) | universal or partial succession into the position of the initial contractor, following corporate restructuring, including takeover, merger, acquisition or insolvency, of another economic operator that fulfils the criteria for qualitative selection initially established provided that this does not entail other substantial modifications to the contract and is not aimed at circumventing the application of this Directive; or |
| --- | --- |

(ii)

universal or partial succession into the position of the initial contractor, following corporate restructuring, including takeover, merger, acquisition or insolvency, of another economic operator that fulfils the criteria for qualitative selection initially established provided that this does not entail other substantial modifications to the contract and is not aimed at circumventing the application of this Directive; or

...

4.   A modification of a contract or a framework agreement during its term shall be considered to be substantial within the meaning of point (e) of paragraph 1, where it renders the contract or the framework agreement materially different in character from the one initially concluded. In any event, without prejudice to paragraphs 1 and 2, a modification shall be considered to be substantial where one or more of the following conditions is met:

| (a) | the modification introduces conditions which, had they been part of the initial procurement procedure, would have allowed for the admission of other candidates than those initially selected or for the acceptance of a tender other than that originally accepted or would have attracted additional participants in the procurement procedure; |
| --- | --- |

(a)

the modification introduces conditions which, had they been part of the initial procurement procedure, would have allowed for the admission of other candidates than those initially selected or for the acceptance of a tender other than that originally accepted or would have attracted additional participants in the procurement procedure;

...’

| 7 | Article 90(1) of Directive 2014/24 is worded as follows:
  ‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 18 April 2016. They shall forthwith communicate to the Commission the text of those measures.’ |
| --- | --- |

7

Article 90(1) of Directive 2014/24 is worded as follows:

‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 18 April 2016. They shall forthwith communicate to the Commission the text of those measures.’

Italian law

Italian law

| 8 | Article 1(611) and (612) of legge n. 190 – Disposizioni per la formazione del bilancio annuale e pluriannuale dello Stato (legge di stabilità 2015) (Law No 190 on provisions for the preparation of the annual and multi-annual State budget (Stability Law 2015)) of 23 December 2014 (GURI No 300 of 29 December 2014 – Ordinary Supplement No 99, p. 1), provides:
  ‘611.   Without prejudice to the provisions laid down in Article 3(27) to (29) of Law No 244 of 24 December 2007, as amended, and Article 1(569) of Law No 147 of 27 December 2013, as amended, in order to ensure the coordination of public finances, the reduction of expenditure, sound administration and the protection of competition and the market, the regions, the autonomous provinces of Trento and Bolzano, the local authorities, the chambers of commerce, industry, crafts and agriculture, the universities and public higher education establishments and the port authorities, from 1 January 2015, shall embark on a process of streamlining companies and shares held directly or indirectly in companies, in order to reduce the number of such companies and shareholdings before 31 December 2015, by taking into account in particular the following criteria:
  ...





  (d) | concentration of companies providing local public services of economic interest; |
| --- | --- | --- |

8

Article 1(611) and (612) of legge n. 190 – Disposizioni per la formazione del bilancio annuale e pluriannuale dello Stato (legge di stabilità 2015) (Law No 190 on provisions for the preparation of the annual and multi-annual State budget (Stability Law 2015)) of 23 December 2014 (GURI No 300 of 29 December 2014 – Ordinary Supplement No 99, p. 1), provides:

‘611.   Without prejudice to the provisions laid down in Article 3(27) to (29) of Law No 244 of 24 December 2007, as amended, and Article 1(569) of Law No 147 of 27 December 2013, as amended, in order to ensure the coordination of public finances, the reduction of expenditure, sound administration and the protection of competition and the market, the regions, the autonomous provinces of Trento and Bolzano, the local authorities, the chambers of commerce, industry, crafts and agriculture, the universities and public higher education establishments and the port authorities, from 1 January 2015, shall embark on a process of streamlining companies and shares held directly or indirectly in companies, in order to reduce the number of such companies and shareholdings before 31 December 2015, by taking into account in particular the following criteria:

...

(d)

concentration of companies providing local public services of economic interest;

...

612.   The presidents of the regions and the autonomous provinces of Trento and Bolzano, the presidents of the provinces, the mayors and other governing bodies of the administrations specified in paragraph 611, in their respective areas of competence, shall define and approve, before 31 March 2015, an operational plan for streamlining companies and shares held directly or indirectly in companies, the methods of and time limits for implementation and the detailed presentation of the savings to be made. That plan, together with a specific technical report, shall be forwarded to the competent regional audit chamber of the Court of Auditors and published on the institutional website of the administration concerned. Before 31 March 2016, the bodies listed in the first sentence shall draw up a report on the results obtained, which shall be forwarded to the competent regional audit chamber of the Court of Auditors and published on the institutional website of the administration concerned. The publication of the plan and report constitutes mandatory disclosure under Decree No 33 of 14 March 2013’.

| 9 | In accordance with Article 3bis(2bis) of decreto-legge n. 138 – Ulteriori misure urgenti per la stabilizzazione finanziaria e per lo sviluppo (Decree-Law No 138 establishing other urgent measures for financial stability and development) of 13 August 2011 (GURI No 216 of 16 September 2011, p. 89; ‘Decree-Law No 138/2011’):
  ‘Any economic operator who universally or partially succeeds the initial concession holder following transparent corporate transactions, including mergers and acquisitions, without prejudice to fulfilment of the original qualitative criteria, shall continue to operate the services until the agreed date ...’ |
| --- | --- |

9

In accordance with Article 3bis(2bis) of decreto-legge n. 138 – Ulteriori misure urgenti per la stabilizzazione finanziaria e per lo sviluppo (Decree-Law No 138 establishing other urgent measures for financial stability and development) of 13 August 2011 (GURI No 216 of 16 September 2011, p. 89; ‘Decree-Law No 138/2011’):

bis

bis

‘Any economic operator who universally or partially succeeds the initial concession holder following transparent corporate transactions, including mergers and acquisitions, without prejudice to fulfilment of the original qualitative criteria, shall continue to operate the services until the agreed date ...’

| 10 | Article 7(5) of decreto legislativo n. 175 – Testo unico in materia di società a partecipazione pubblica (Legislative Decree No 175 – Consolidated law on publicly owned companies) of 19 August 2016 (GURI No 210 of 8 September 2016, p. 1) provides:
  ‘Where the instrument of incorporation requires the participation of private shareholders, the latter shall be selected by means of a public procurement procedure, in accordance with Article 5(9) of Legislative Decree No 50 of 2016’. |
| --- | --- |

10

Article 7(5) of decreto legislativo n. 175 – Testo unico in materia di società a partecipazione pubblica (Legislative Decree No 175 – Consolidated law on publicly owned companies) of 19 August 2016 (GURI No 210 of 8 September 2016, p. 1) provides:

‘Where the instrument of incorporation requires the participation of private shareholders, the latter shall be selected by means of a public procurement procedure, in accordance with Article 5(9) of Legislative Decree No 50 of 2016’.

The dispute in the main proceedings and the question referred for a preliminary ruling

The dispute in the main proceedings and the question referred for a preliminary ruling

| 11 | On 15 June 2005, by a decision expressly described as an ‘in-house award’, the Municipality of Lerici awarded ACAM the contract for the management of the integrated waste cycle in that municipality until 31 December 2028, that management being, more specifically, entrusted to its subsidiary, ACAM Ambiente. On that date, ACAM was a limited company the share capital of which was distributed exclusively among several municipalities, including the Municipality of Lerici. |
| --- | --- |

11

On 15 June 2005, by a decision expressly described as an ‘in-house award’, the Municipality of Lerici awarded ACAM the contract for the management of the integrated waste cycle in that municipality until 31 December 2028, that management being, more specifically, entrusted to its subsidiary, ACAM Ambiente. On that date, ACAM was a limited company the share capital of which was distributed exclusively among several municipalities, including the Municipality of Lerici.

| 12 | On 12 July 2013, ACAM was forced to enter into a restructuring agreement with its creditors. In the context of that agreement, ACAM sought, among other publicly owned companies managing public services operating in the Italian market, a suitable company with a view to carrying out a concentration. Following the public call for tenders launched for that purpose, ACAM chose to carry out a concentration with IREN SpA, which operates throughout Italy, is under public control and is listed on the stock market. |
| --- | --- |

12

On 12 July 2013, ACAM was forced to enter into a restructuring agreement with its creditors. In the context of that agreement, ACAM sought, among other publicly owned companies managing public services operating in the Italian market, a suitable company with a view to carrying out a concentration. Following the public call for tenders launched for that purpose, ACAM chose to carry out a concentration with IREN SpA, which operates throughout Italy, is under public control and is listed on the stock market.

| 13 | Under a special investment agreement, concluded on 29 December 2017, the local authorities with shareholdings in ACAM sold their shares in ACAM to IREN and acquired an equivalent portion of IREN’s shares by subscribing to a capital increase reserved for them. Through ACAM’s subsidiaries, which had become its own subsidiaries, IREN continued to manage the services initially entrusted to those subsidiaries. |
| --- | --- |

13

Under a special investment agreement, concluded on 29 December 2017, the local authorities with shareholdings in ACAM sold their shares in ACAM to IREN and acquired an equivalent portion of IREN’s shares by subscribing to a capital increase reserved for them. Through ACAM’s subsidiaries, which had become its own subsidiaries, IREN continued to manage the services initially entrusted to those subsidiaries.

| 14 | After expressing its intention, on 21 February 2017, not to approve the concentration between ACAM and IREN, the Municipality of Lerici decided, on 19 January 2018, to accept the investment agreement only in respect of the transfer of its ACAM shares to IREN and it actually transferred them to IREN on 11 April 2018. |
| --- | --- |

14

After expressing its intention, on 21 February 2017, not to approve the concentration between ACAM and IREN, the Municipality of Lerici decided, on 19 January 2018, to accept the investment agreement only in respect of the transfer of its ACAM shares to IREN and it actually transferred them to IREN on 11 April 2018.

| 15 | By decision of 6 August 2018, the Province of La Spezia, which was now competent for the management of the integrated municipal waste service for the municipalities in its territorial remit, which includes the Municipality of Lerici, approved the updating of the area plan for the integrated management of municipal waste in the province, in that it designated ACAM Ambiente as the operator of the service for that municipality until 31 December 2028, by virtue of an in-house award. |
| --- | --- |

15

By decision of 6 August 2018, the Province of La Spezia, which was now competent for the management of the integrated municipal waste service for the municipalities in its territorial remit, which includes the Municipality of Lerici, approved the updating of the area plan for the integrated management of municipal waste in the province, in that it designated ACAM Ambiente as the operator of the service for that municipality until 31 December 2028, by virtue of an in-house award.

| 16 | The Municipality of Lerici brought an action against that decision, taking the view that the conditions for the in-house exception were no longer met. By judgment 847/2019, the Tribunale amministrativo regionale per la Liguria (Regional Administrative Court, Liguria, Italy) dismissed that action. |
| --- | --- |

16

The Municipality of Lerici brought an action against that decision, taking the view that the conditions for the in-house exception were no longer met. By judgment 847/2019, the Tribunale amministrativo regionale per la Liguria (Regional Administrative Court, Liguria, Italy) dismissed that action.

| 17 | The Municipality of Lerici brought an appeal against that judgment before the Consiglio di Stato (Council of State, Italy). |
| --- | --- |

17

The Municipality of Lerici brought an appeal against that judgment before the Consiglio di Stato (Council of State, Italy).

| 18 | In the first place, it points out that, while that municipality was competent to award the contract at issue to ACAM in 2005, that competence has now been transferred to the provinces, which are currently responsible for the integrated management of municipal waste services for the benefit of all municipalities within their territorial remit. |
| --- | --- |

18

In the first place, it points out that, while that municipality was competent to award the contract at issue to ACAM in 2005, that competence has now been transferred to the provinces, which are currently responsible for the integrated management of municipal waste services for the benefit of all municipalities within their territorial remit.

| 19 | In the second place, that court notes that the concentration at issue in the main proceedings was concluded on the basis of Article 1(611) and (612) of Law No 190 of 23 December 2014, the objective of which is to curb public expenditure by limiting the shares in companies held by public bodies. Moreover, that operation was justified in view of the fact that ACAM had concluded a debt restructuring agreement. In such a situation, Article 3bis(2bis) of Decree-Law No 138/2011 provides for the continuation, until the agreed deadlines, of the operation of the services which had been entrusted to the initial contractor, by the economic operator succeeding it. |
| --- | --- |

19

In the second place, that court notes that the concentration at issue in the main proceedings was concluded on the basis of Article 1(611) and (612) of Law No 190 of 23 December 2014, the objective of which is to curb public expenditure by limiting the shares in companies held by public bodies. Moreover, that operation was justified in view of the fact that ACAM had concluded a debt restructuring agreement. In such a situation, Article 3bis(2bis) of Decree-Law No 138/2011 provides for the continuation, until the agreed deadlines, of the operation of the services which had been entrusted to the initial contractor, by the economic operator succeeding it.

bis

bis

| 20 | In the third place, the referring court considers that there are doubts as to the compatibility of that legislation with Article 12 of Directive 2014/24 in relation to the in-house exception in the context of the award of public contracts. |
| --- | --- |

20

In the third place, the referring court considers that there are doubts as to the compatibility of that legislation with Article 12 of Directive 2014/24 in relation to the in-house exception in the context of the award of public contracts.

| 21 | The concentration carried out in the present case has resulted in the municipal waste management service for the Municipality of Lerici – which had initially been awarded to ACAM, without a call for tenders, over which it is not disputed that that municipality exercised jointly with other municipalities, similar control to that exercised over its own departments, within the meaning of the case-law of the Court of Justice – now being awarded to IREN and, through it, to its subsidiary ACAM Ambiente, without the Municipality of Lerici retaining such control over either of those companies. Not only was the shareholding in IREN acquired by that municipality completely negligible, since that municipality sold that shareholding, any link between the municipality and IREN has disappeared. |
| --- | --- |

21

The concentration carried out in the present case has resulted in the municipal waste management service for the Municipality of Lerici – which had initially been awarded to ACAM, without a call for tenders, over which it is not disputed that that municipality exercised jointly with other municipalities, similar control to that exercised over its own departments, within the meaning of the case-law of the Court of Justice – now being awarded to IREN and, through it, to its subsidiary ACAM Ambiente, without the Municipality of Lerici retaining such control over either of those companies. Not only was the shareholding in IREN acquired by that municipality completely negligible, since that municipality sold that shareholding, any link between the municipality and IREN has disappeared.

| 22 | The Province of La Spezia decided to award the service intended for the Municipality of Lerici directly, without a call for tenders. It is therefore necessary to determine whether that direct award complies with the rules of EU law on public procurement. |
| --- | --- |

22

The Province of La Spezia decided to award the service intended for the Municipality of Lerici directly, without a call for tenders. It is therefore necessary to determine whether that direct award complies with the rules of EU law on public procurement.

| 23 | According to the referring court, it is necessary, more specifically, to examine whether the fact that ACAM’s decision to merge with IREN was preceded by a public call for tenders must be taken into account in that context. |
| --- | --- |

23

According to the referring court, it is necessary, more specifically, to examine whether the fact that ACAM’s decision to merge with IREN was preceded by a public call for tenders must be taken into account in that context.

| 24 | In that regard, that court considers that the ultimate objective of the relevant rules of EU law is to promote competition and that that result is achieved, in the context of the award of public services, when several operators compete, or are in a position to do so, in order to obtain the contract in question, regardless of the legal classification of the instrument enabling that objective to be achieved. In those circumstances, that court is inclined to consider that it is irrelevant that a given service is awarded by means of a tendering procedure relating specifically to the award of that service, or by means of a tendering procedure for the acquisition of shares in the company providing those services, since competition is ensured in both cases. |
| --- | --- |

24

In that regard, that court considers that the ultimate objective of the relevant rules of EU law is to promote competition and that that result is achieved, in the context of the award of public services, when several operators compete, or are in a position to do so, in order to obtain the contract in question, regardless of the legal classification of the instrument enabling that objective to be achieved. In those circumstances, that court is inclined to consider that it is irrelevant that a given service is awarded by means of a tendering procedure relating specifically to the award of that service, or by means of a tendering procedure for the acquisition of shares in the company providing those services, since competition is ensured in both cases.

| 25 | In those circumstances, the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
  ‘Does Article 12 of Directive [2014/24] ... preclude national legislation which imposes a concentration of companies providing local public services of economic interest, as a result of which the economic operator succeeding the initial concession holder following transparent corporate transactions, including mergers and acquisitions, continues to operate the services until the agreed date, if:





  (a) | the initial concession holder is a company awarded the contract in-house on the basis of similar control where several other public authorities are shareholders in that company; |
| --- | --- | --- |

25

In those circumstances, the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Does Article 12 of Directive [2014/24] ... preclude national legislation which imposes a concentration of companies providing local public services of economic interest, as a result of which the economic operator succeeding the initial concession holder following transparent corporate transactions, including mergers and acquisitions, continues to operate the services until the agreed date, if:

(a)

the initial concession holder is a company awarded the contract in-house on the basis of similar control where several other public authorities are shareholders in that company;

| (b) | the new economic operator has been selected by means of a public call for tenders; |
| --- | --- |

(b)

the new economic operator has been selected by means of a public call for tenders;

| (c) | as a result of the concentration, the requirements for similar control where several other public authorities are shareholders in that company no longer apply in relation to some of the local authorities which originally awarded the service in question[?]’ |
| --- | --- |

(c)

as a result of the concentration, the requirements for similar control where several other public authorities are shareholders in that company no longer apply in relation to some of the local authorities which originally awarded the service in question[?]’

The question referred for a preliminary ruling

The question referred for a preliminary ruling

Admissibility of the question referred

Admissibility of the question referred

| 26 | In accordance with Article 94 of the Rules of Procedure of the Court of Justice, every request for a preliminary ruling must contain ‘a summary of the subject matter of the dispute and the relevant findings of fact as determined by the referring court or tribunal, or, at least, an account of the facts on which the questions are based’, ‘the tenor of any national provisions applicable in the case and, where appropriate, the relevant national case-law’, and ‘a statement of the reasons which prompted the referring court or tribunal to inquire about the interpretation or validity of certain provisions of European Union law, and the relationship between those provisions and the national legislation applicable to the main proceedings’. |
| --- | --- |

26

In accordance with Article 94 of the Rules of Procedure of the Court of Justice, every request for a preliminary ruling must contain ‘a summary of the subject matter of the dispute and the relevant findings of fact as determined by the referring court or tribunal, or, at least, an account of the facts on which the questions are based’, ‘the tenor of any national provisions applicable in the case and, where appropriate, the relevant national case-law’, and ‘a statement of the reasons which prompted the referring court or tribunal to inquire about the interpretation or validity of certain provisions of European Union law, and the relationship between those provisions and the national legislation applicable to the main proceedings’.

| 27 | In the present case, contrary to the submissions of the Austrian Government, the order for reference contains a description of the factual and legislative context of the dispute in the main proceedings which is sufficient to satisfy the requirements of Article 94 of the Rules of Procedure of the Court of Justice. |
| --- | --- |

27

In the present case, contrary to the submissions of the Austrian Government, the order for reference contains a description of the factual and legislative context of the dispute in the main proceedings which is sufficient to satisfy the requirements of Article 94 of the Rules of Procedure of the Court of Justice.

| 28 | Thus, first, the order for reference reproduces the content of the national provisions applicable to the dispute in the main proceedings. Secondly, the description by the referring court of the decisions of 15 June 2005 and 6 August 2018 and of the call for tenders launched by ACAM is sufficient to understand the reasons for the choice of the EU provisions the interpretation of which it seeks, as well as the link it establishes between those provisions and the national legislation applicable to the dispute before it. |
| --- | --- |

28

Thus, first, the order for reference reproduces the content of the national provisions applicable to the dispute in the main proceedings. Secondly, the description by the referring court of the decisions of 15 June 2005 and 6 August 2018 and of the call for tenders launched by ACAM is sufficient to understand the reasons for the choice of the EU provisions the interpretation of which it seeks, as well as the link it establishes between those provisions and the national legislation applicable to the dispute before it.

| 29 | It follows that the question referred to the Court is admissible. |
| --- | --- |

29

It follows that the question referred to the Court is admissible.

Substance

Substance

| 30 | By its question, the referring court asks, in essence, whether Directive 2014/24 must be interpreted as precluding national legislation or practice under which the performance of a public contract, awarded initially, without a call for tenders, to an in-house entity over which the contracting authority exercised, jointly, control similar to that which it exercises over its own departments, is automatically continued by the economic operator which acquired that entity, following a tendering procedure, where that contracting authority does not have such control over that economic operator. |
| --- | --- |

30

By its question, the referring court asks, in essence, whether Directive 2014/24 must be interpreted as precluding national legislation or practice under which the performance of a public contract, awarded initially, without a call for tenders, to an in-house entity over which the contracting authority exercised, jointly, control similar to that which it exercises over its own departments, is automatically continued by the economic operator which acquired that entity, following a tendering procedure, where that contracting authority does not have such control over that economic operator.

| 31 | As a preliminary point, it is apparent, first, from the order for reference that, in 2005, the Municipality of Lerici awarded the contract for the management of its waste services until 2028 to ACAM, the operational management of that service being entrusted to its subsidiary, ACAM Ambiente. On the date that contract was awarded, ACAM’s capital was held exclusively by a number of municipalities, including the Municipality of Lerici. |
| --- | --- |

31

As a preliminary point, it is apparent, first, from the order for reference that, in 2005, the Municipality of Lerici awarded the contract for the management of its waste services until 2028 to ACAM, the operational management of that service being entrusted to its subsidiary, ACAM Ambiente. On the date that contract was awarded, ACAM’s capital was held exclusively by a number of municipalities, including the Municipality of Lerici.

| 32 | According to the referring court, the contract thus awarded to ACAM constituted a public service contract and could be awarded, without a call for tenders, on the ground, inter alia, that the Municipality of Lerici exercised, with the other local authority shareholders, joint control over ACAM similar to that which those municipalities exercised over their own departments, within the meaning of the case-law of the Court (see, to that effect, judgment of 13 November 2008, Coditel Brabant, C‐324/07, EU:C:2008:621, paragraph 50). The question referred for a preliminary ruling must be answered on the basis of that premiss. |
| --- | --- |

32

According to the referring court, the contract thus awarded to ACAM constituted a public service contract and could be awarded, without a call for tenders, on the ground, inter alia, that the Municipality of Lerici exercised, with the other local authority shareholders, joint control over ACAM similar to that which those municipalities exercised over their own departments, within the meaning of the case-law of the Court (see, to that effect, judgment of 13 November 2008, Coditel Brabant, C‐324/07, EU:C:2008:621, paragraph 50). The question referred for a preliminary ruling must be answered on the basis of that premiss.

| 33 | In that regard, it must be borne in mind that Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1), which was applicable when the contract between the Municipality of Lerici and ACAM was entered into, did not require a contracting authority to initiate a tendering procedure for the award of a public contract where it exercised over the contractor similar control to that exercised over its own departments and where that distinct entity carried out the essential part of its activities with the contracting authority or authorities which owned it. In the case of an in-house award of that kind, the contracting authority is deemed to use its own resources since, even if the contractor is legally distinct from the contracting authority, it may, in practice, be treated in the same way as the internal departments of the contracting authority (see, to that effect, judgments of 11 January 2005, Stadt Halle and RPL Lochau, C‐26/03, EU:C:2005:5, paragraph 49, and of 18 June 2020, Porin kaupunki, C‐328/19, EU:C:2020:483, paragraph 66). |
| --- | --- |

33

In that regard, it must be borne in mind that Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1), which was applicable when the contract between the Municipality of Lerici and ACAM was entered into, did not require a contracting authority to initiate a tendering procedure for the award of a public contract where it exercised over the contractor similar control to that exercised over its own departments and where that distinct entity carried out the essential part of its activities with the contracting authority or authorities which owned it. In the case of an in-house award of that kind, the contracting authority is deemed to use its own resources since, even if the contractor is legally distinct from the contracting authority, it may, in practice, be treated in the same way as the internal departments of the contracting authority (see, to that effect, judgments of 11 January 2005, Stadt Halle and RPL Lochau, C‐26/03, EU:C:2005:5, paragraph 49, and of 18 June 2020, Porin kaupunki, C‐328/19, EU:C:2020:483, paragraph 66).

| 34 | Moreover, in the case of recourse to an entity which is jointly owned by a number of public authorities, the Court has held that ‘similar control’, within the meaning of the preceding paragraph, could be exercised jointly by those authorities (see, to that effect, judgment of 13 November 2008, Coditel Brabant, C‐324/07, EU:C:2008:621, paragraph 50, and of 8 May 2014, Datenlotsen Informationssysteme, C‐15/13, EU:C:2014:303, paragraph 27). |
| --- | --- |

34

Moreover, in the case of recourse to an entity which is jointly owned by a number of public authorities, the Court has held that ‘similar control’, within the meaning of the preceding paragraph, could be exercised jointly by those authorities (see, to that effect, judgment of 13 November 2008, Coditel Brabant, C‐324/07, EU:C:2008:621, paragraph 50, and of 8 May 2014, Datenlotsen Informationssysteme, C‐15/13, EU:C:2014:303, paragraph 27).

| 35 | Secondly, it is also apparent from the order for reference that, after having concluded a restructuring agreement with its creditors in 2013, ACAM decided to launch a public call for tenders in order to select an economic operator with which to merge. That procedure resulted in the selection of IREN which acquired all of the shares in ACAM held by the local authority shareholders. Those shareholders acquired a corresponding portion of IREN’s shares in the course of a capital increase of that company reserved for them, the Municipality of Lerici deciding, for its part, to accept the agreement referred to above only in so far as it concerned the transfer of its shares in ACAM. |
| --- | --- |

35

Secondly, it is also apparent from the order for reference that, after having concluded a restructuring agreement with its creditors in 2013, ACAM decided to launch a public call for tenders in order to select an economic operator with which to merge. That procedure resulted in the selection of IREN which acquired all of the shares in ACAM held by the local authority shareholders. Those shareholders acquired a corresponding portion of IREN’s shares in the course of a capital increase of that company reserved for them, the Municipality of Lerici deciding, for its part, to accept the agreement referred to above only in so far as it concerned the transfer of its shares in ACAM.

| 36 | In accordance with Article 3bis(2bis) of Decree-Law No 138/2011, ACAM Ambiente, now wholly owned by IREN, continued to provide the waste management service for the municipalities which were formerly shareholders of ACAM, including the Municipality of Lerici. |
| --- | --- |

36

In accordance with Article 3bis(2bis) of Decree-Law No 138/2011, ACAM Ambiente, now wholly owned by IREN, continued to provide the waste management service for the municipalities which were formerly shareholders of ACAM, including the Municipality of Lerici.

bis

bis

| 37 | Having made those preliminary observations, it should be noted that, where, as in the present case, a public contract has been awarded, without being put out to competitive tender, to a public capital company in accordance with the case-law referred to in paragraphs 33 and 34 of the present judgment, the acquisition of that company by another economic operator, during the period for which that contract was valid, is likely to constitute the alteration of a fundamental condition of the contract, requiring the contract to be put out for competitive tender (see, to that effect, judgments of 6 April 2006, ANAV, C‐410/04, EU:C:2006:237, paragraphs 30 to 32, and of 10 September 2009, Sea, C‐573/07, EU:C:2009:532, paragraph 53). |
| --- | --- |

37

Having made those preliminary observations, it should be noted that, where, as in the present case, a public contract has been awarded, without being put out to competitive tender, to a public capital company in accordance with the case-law referred to in paragraphs 33 and 34 of the present judgment, the acquisition of that company by another economic operator, during the period for which that contract was valid, is likely to constitute the alteration of a fundamental condition of the contract, requiring the contract to be put out for competitive tender (see, to that effect, judgments of 6 April 2006, ANAV, C‐410/04, EU:C:2006:237, paragraphs 30 to 32, and of 10 September 2009, Sea, C‐573/07, EU:C:2009:532, paragraph 53).

| 38 | Such an amendment may lead to the contractor no longer being able in practice to be treated in the same way as the internal departments of the contracting authority, within the meaning of paragraph 34 of this judgment and, therefore, to the performance of the public contract concerned no longer being able to continue without a call for tenders since that contracting authority can no longer be deemed to be using its own resources. |
| --- | --- |

38

Such an amendment may lead to the contractor no longer being able in practice to be treated in the same way as the internal departments of the contracting authority, within the meaning of paragraph 34 of this judgment and, therefore, to the performance of the public contract concerned no longer being able to continue without a call for tenders since that contracting authority can no longer be deemed to be using its own resources.

| 39 | In the present case, since the acquisition of ACAM by IREN took place in 2017, namely after the expiry of the period prescribed for the transposition by the Member States of Directive 2014/24, as laid down in Article 90(1) thereof, it is in the light of the provisions of that directive that it must be examined whether such an amendment required the contract to be put out for competitive tender (see, to that effect, judgment of 2 September 2021, Sisal and Others, C‐721/19 and C‐722/19, EU:C:2021:672, paragraph 28 and the case-law cited). |
| --- | --- |

39

In the present case, since the acquisition of ACAM by IREN took place in 2017, namely after the expiry of the period prescribed for the transposition by the Member States of Directive 2014/24, as laid down in Article 90(1) thereof, it is in the light of the provisions of that directive that it must be examined whether such an amendment required the contract to be put out for competitive tender (see, to that effect, judgment of 2 September 2021, Sisal and Others, C‐721/19 and C‐722/19, EU:C:2021:672, paragraph 28 and the case-law cited).

| 40 | In that regard, first, Article 72(1)(d)(ii) of Directive 2014/24 provides that a public contract may be modified, without carrying out a new procurement procedure in accordance with the requirements of that directive, where the initial contractor is replaced by a new contractor as a consequence of, inter alia, the acquisition of the former by the latter, provided that the latter fulfils the criteria for qualitative selection initially established and provided that this does not entail other substantial modifications to the contract and is not aimed at circumventing the application of that directive. |
| --- | --- |

40

In that regard, first, Article 72(1)(d)(ii) of Directive 2014/24 provides that a public contract may be modified, without carrying out a new procurement procedure in accordance with the requirements of that directive, where the initial contractor is replaced by a new contractor as a consequence of, inter alia, the acquisition of the former by the latter, provided that the latter fulfils the criteria for qualitative selection initially established and provided that this does not entail other substantial modifications to the contract and is not aimed at circumventing the application of that directive.

| 41 | It is therefore apparent from the wording of Article 72(1) that its scope is limited to cases in which the successor to the initial contractor continues to perform a public contract which was the subject of an initial procurement procedure complying with the requirements laid down by Directive 2014/24, which include compliance with the principles of non-discrimination, equal treatment and effective competition between economic operators, as notably recalled and given concrete expression in Article 18(1) and Article 67(4) of that directive. |
| --- | --- |

41

It is therefore apparent from the wording of Article 72(1) that its scope is limited to cases in which the successor to the initial contractor continues to perform a public contract which was the subject of an initial procurement procedure complying with the requirements laid down by Directive 2014/24, which include compliance with the principles of non-discrimination, equal treatment and effective competition between economic operators, as notably recalled and given concrete expression in Article 18(1) and Article 67(4) of that directive.

| 42 | That interpretation is supported by Article 72(4) of that directive, under which a modification of a contract must be considered to be substantial where it introduces conditions which, had they been part of the initial procurement procedure, would have allowed for the admission of other candidates than those initially selected or for the acceptance of a tender other than that originally accepted or would have attracted additional participants in the procurement procedure, and by the objective pursued by the directives in this area of attaining the widest possible opening up of public contracts to competition to the benefit not only of economic operators but also of contracting authorities (judgment of 27 November 2019, Tedeschi and Consorzio Stabile Istant Service, C‐402/18, EU:C:2019:1023, paragraph 39). |
| --- | --- |

42

That interpretation is supported by Article 72(4) of that directive, under which a modification of a contract must be considered to be substantial where it introduces conditions which, had they been part of the initial procurement procedure, would have allowed for the admission of other candidates than those initially selected or for the acceptance of a tender other than that originally accepted or would have attracted additional participants in the procurement procedure, and by the objective pursued by the directives in this area of attaining the widest possible opening up of public contracts to competition to the benefit not only of economic operators but also of contracting authorities (judgment of 27 November 2019, Tedeschi and Consorzio Stabile Istant Service, C‐402/18, EU:C:2019:1023, paragraph 39).

| 43 | Therefore, a change in the contractor, such as that at issue in the main proceedings, cannot fall within the scope of Article 72 of Directive 2014/24, contrary to the submissions of the Austrian Government, since the public contract at issue in the main proceedings was awarded initially to an in-house entity without a call for tenders. |
| --- | --- |

43

Therefore, a change in the contractor, such as that at issue in the main proceedings, cannot fall within the scope of Article 72 of Directive 2014/24, contrary to the submissions of the Austrian Government, since the public contract at issue in the main proceedings was awarded initially to an in-house entity without a call for tenders.

| 44 | Secondly, it should be noted that Article 12(1) to (3) of Directive 2014/24 incorporates, inter alia, the principles referred to in paragraphs 33 and 34 of the present judgment, while specifying the circumstances in which in-house awards fall outside the scope of that directive. |
| --- | --- |

44

Secondly, it should be noted that Article 12(1) to (3) of Directive 2014/24 incorporates, inter alia, the principles referred to in paragraphs 33 and 34 of the present judgment, while specifying the circumstances in which in-house awards fall outside the scope of that directive.

| 45 | More specifically, under Article 12(3) of Directive 2014/24, a public contract may be awarded without applying the award procedures laid down by that directive provided that the contracting authority exercises, jointly with other contracting authorities, a control over the contractor which is similar to that which they exercise over their own departments, that more than 80% of the activities of that contractor are carried out in the performance of the tasks entrusted to it by those contracting authorities or by other legal persons controlled by them and, finally, that there is no direct private capital participation in that contractor, with the exception of non-controlling and non-blocking forms of private capital participation required by the legislation of the Member State concerned, in conformity with the Treaties, which do not exert a decisive influence on the contractor. |
| --- | --- |

45

More specifically, under Article 12(3) of Directive 2014/24, a public contract may be awarded without applying the award procedures laid down by that directive provided that the contracting authority exercises, jointly with other contracting authorities, a control over the contractor which is similar to that which they exercise over their own departments, that more than 80% of the activities of that contractor are carried out in the performance of the tasks entrusted to it by those contracting authorities or by other legal persons controlled by them and, finally, that there is no direct private capital participation in that contractor, with the exception of non-controlling and non-blocking forms of private capital participation required by the legislation of the Member State concerned, in conformity with the Treaties, which do not exert a decisive influence on the contractor.

| 46 | Furthermore, it follows from the last subparagraph of Article 12(3) that the existence of joint control, within the meaning of that provision, presupposes, inter alia, that all the contracting authorities are represented in the decision-making bodies of the controlled entity and are able jointly to exert decisive influence over the strategic objectives and significant decisions of that entity. |
| --- | --- |

46

Furthermore, it follows from the last subparagraph of Article 12(3) that the existence of joint control, within the meaning of that provision, presupposes, inter alia, that all the contracting authorities are represented in the decision-making bodies of the controlled entity and are able jointly to exert decisive influence over the strategic objectives and significant decisions of that entity.

| 47 | It is apparent from the file submitted to the Court, first, that, on the date of the decision forming the subject matter of the action before the referring court, the Municipality of Lerici held no shares in IREN which is, moreover, largely open to private equity. Secondly, it does not appear to be represented in the decision-making bodies of that company or to be able to influence, even jointly with the other municipalities which held shares in ACAM, the strategic objectives or significant decisions of IREN. |
| --- | --- |

47

It is apparent from the file submitted to the Court, first, that, on the date of the decision forming the subject matter of the action before the referring court, the Municipality of Lerici held no shares in IREN which is, moreover, largely open to private equity. Secondly, it does not appear to be represented in the decision-making bodies of that company or to be able to influence, even jointly with the other municipalities which held shares in ACAM, the strategic objectives or significant decisions of IREN.

| 48 | It follows that the conditions laid down in Article 12(3) of Directive 2014/24, which enable the view to be taken that the award of a public contract falls outside the scope of the procurement procedures laid down by that directive, do not appear to be satisfied, which, however, is a matter for the referring court to establish. |
| --- | --- |

48

It follows that the conditions laid down in Article 12(3) of Directive 2014/24, which enable the view to be taken that the award of a public contract falls outside the scope of the procurement procedures laid down by that directive, do not appear to be satisfied, which, however, is a matter for the referring court to establish.

| 49 | Nor does it appear from the file submitted to the Court that IREN has a relationship with the Municipality of Lerici such that the conditions laid down in Article 12(1) or (2) of that directive enabling such a contract to be classified as an ‘in-house operation’ may be satisfied. |
| --- | --- |

49

Nor does it appear from the file submitted to the Court that IREN has a relationship with the Municipality of Lerici such that the conditions laid down in Article 12(1) or (2) of that directive enabling such a contract to be classified as an ‘in-house operation’ may be satisfied.

| 50 | Subject to the checks to be carried out by the referring court, IREN’s continued performance of the public contract in the main proceedings must therefore be regarded as stemming from an amendment of a fundamental condition of the contract requiring the contract to be put out for competitive tender, since Directive 2014/24 authorises IREN to continue to perform the contract only after it has been designated as the successful tenderer for that contract, following a procurement procedure which complies with the requirements of that directive. |
| --- | --- |

50

Subject to the checks to be carried out by the referring court, IREN’s continued performance of the public contract in the main proceedings must therefore be regarded as stemming from an amendment of a fundamental condition of the contract requiring the contract to be put out for competitive tender, since Directive 2014/24 authorises IREN to continue to perform the contract only after it has been designated as the successful tenderer for that contract, following a procurement procedure which complies with the requirements of that directive.

| 51 | The fact that IREN was selected by ACAM and, therefore, by the municipalities with a shareholding in that company, following a public tendering procedure, does not alter that conclusion. |
| --- | --- |

51

The fact that IREN was selected by ACAM and, therefore, by the municipalities with a shareholding in that company, following a public tendering procedure, does not alter that conclusion.

| 52 | It is sufficient to note that, as stated in paragraph 47 of the present judgment, on the date of the decision forming the subject matter of the action before the referring court, the Municipality of Lerici held no shares, even indirectly, in IREN. |
| --- | --- |

52

It is sufficient to note that, as stated in paragraph 47 of the present judgment, on the date of the decision forming the subject matter of the action before the referring court, the Municipality of Lerici held no shares, even indirectly, in IREN.

| 53 | In the context of the performance of the public contract at issue in the main proceedings, IREN cannot therefore be treated as a mixed capital company owned both by the contracting authority, albeit indirectly, and by an entity which has been selected by the latter, following a transparent procedure which is open to competition, in accordance with the judgment of 15 October 2009, Acoset (C‐196/08, EU:C:2009:628). |
| --- | --- |

53

In the context of the performance of the public contract at issue in the main proceedings, IREN cannot therefore be treated as a mixed capital company owned both by the contracting authority, albeit indirectly, and by an entity which has been selected by the latter, following a transparent procedure which is open to competition, in accordance with the judgment of 15 October 2009, Acoset (C‐196/08, EU:C:2009:628).

| 54 | Therefore, it is not necessary to examine the characteristics of the public tendering procedure by which IREN was selected to determine that that procedure cannot, in any event, in the case of the public contract at issue in the main proceedings, equate to a procurement procedure which complies with the requirements laid down by Directive 2014/24 since, both before the concentration with ACAM and after the other municipalities acquired a stake in its capital, IREN is an entity which is not part of the Municipality of Lerici. |
| --- | --- |

54

Therefore, it is not necessary to examine the characteristics of the public tendering procedure by which IREN was selected to determine that that procedure cannot, in any event, in the case of the public contract at issue in the main proceedings, equate to a procurement procedure which complies with the requirements laid down by Directive 2014/24 since, both before the concentration with ACAM and after the other municipalities acquired a stake in its capital, IREN is an entity which is not part of the Municipality of Lerici.

| 55 | In the light of the foregoing, it must be concluded that Directive 2014/24 precludes the continued performance of a public contract that was awarded in house, without it being put out for competitive tender, where the contracting authority no longer holds any shares, even indirectly, in the contractor and no longer has any control over it. |
| --- | --- |

55

In the light of the foregoing, it must be concluded that Directive 2014/24 precludes the continued performance of a public contract that was awarded in house, without it being put out for competitive tender, where the contracting authority no longer holds any shares, even indirectly, in the contractor and no longer has any control over it.

| 56 | It is also important to add that such a conclusion must also be drawn in a situation where, as the order for reference might suggest, the public contract at issue in the main proceedings must be regarded as having been re-awarded by the Province of La Spezia. |
| --- | --- |

56

It is also important to add that such a conclusion must also be drawn in a situation where, as the order for reference might suggest, the public contract at issue in the main proceedings must be regarded as having been re-awarded by the Province of La Spezia.

| 57 | It is apparent from the order for reference that, on 6 August 2018, that province, which had become competent for the management of the waste service for the municipalities within its territorial remit, approved the updating of the area plan for the integrated management of municipal waste in the province, in so far as it awarded ACAM Ambiente the management of the waste service for the Municipality of Lerici until 2028. |
| --- | --- |

57

It is apparent from the order for reference that, on 6 August 2018, that province, which had become competent for the management of the waste service for the municipalities within its territorial remit, approved the updating of the area plan for the integrated management of municipal waste in the province, in so far as it awarded ACAM Ambiente the management of the waste service for the Municipality of Lerici until 2028.

| 58 | Even if the decision of 6 August 2018 were to be assessed as awarding the management of such a waste service to ACAM Ambiente, a subsidiary wholly owned by IREN, the fact remains that such a direct award would not meet the requirements imposed by Directive 2014/24 either. |
| --- | --- |

58

Even if the decision of 6 August 2018 were to be assessed as awarding the management of such a waste service to ACAM Ambiente, a subsidiary wholly owned by IREN, the fact remains that such a direct award would not meet the requirements imposed by Directive 2014/24 either.

| 59 | First, it is not apparent from the file submitted to the Court that the Province of La Spezia and ACAM Ambiente are in one of the situations listed in Article 12 of that directive. It should be noted, in particular, that that province does not appear to hold any shares in the capital of IREN and, therefore, in that of ACAM Ambiente, nor does it have any power of control over those entities. |
| --- | --- |

59

First, it is not apparent from the file submitted to the Court that the Province of La Spezia and ACAM Ambiente are in one of the situations listed in Article 12 of that directive. It should be noted, in particular, that that province does not appear to hold any shares in the capital of IREN and, therefore, in that of ACAM Ambiente, nor does it have any power of control over those entities.

| 60 | It follows that, subject to the checks to be carried out by the referring court, Article 12 of Directive 2014/24 does not appear to be capable of justifying the award of a public service contract to ACAM Ambiente by the Province of La Spezia, without a call for tenders. |
| --- | --- |

60

It follows that, subject to the checks to be carried out by the referring court, Article 12 of Directive 2014/24 does not appear to be capable of justifying the award of a public service contract to ACAM Ambiente by the Province of La Spezia, without a call for tenders.

| 61 | Secondly, having regard to the information in the file submitted to the Court, it also appears that such an award cannot be treated as the award of a public contract to a semi-public company under the conditions set out in paragraph 53 of the present judgment. Thus, it is sufficient to recall that, as noted in paragraph 59 of the present judgment, the Province of La Spezia does not appear to hold any shares in IREN and, therefore, in ACAM Ambiente. |
| --- | --- |

61

Secondly, having regard to the information in the file submitted to the Court, it also appears that such an award cannot be treated as the award of a public contract to a semi-public company under the conditions set out in paragraph 53 of the present judgment. Thus, it is sufficient to recall that, as noted in paragraph 59 of the present judgment, the Province of La Spezia does not appear to hold any shares in IREN and, therefore, in ACAM Ambiente.

| 62 | It follows from all the foregoing considerations that Directive 2014/24 must be interpreted as precluding national legislation or practice under which the performance of a public contract, awarded initially, without a call for tenders, to an in-house entity over which the contracting authority exercised, jointly, control similar to that which it exercises over its own departments, is automatically continued by the economic operator which acquired that entity, following a tendering procedure, where that contracting authority does not have such control over that operator and does not hold any shares in its capital. |
| --- | --- |

62

It follows from all the foregoing considerations that Directive 2014/24 must be interpreted as precluding national legislation or practice under which the performance of a public contract, awarded initially, without a call for tenders, to an in-house entity over which the contracting authority exercised, jointly, control similar to that which it exercises over its own departments, is automatically continued by the economic operator which acquired that entity, following a tendering procedure, where that contracting authority does not have such control over that operator and does not hold any shares in its capital.

Costs

Costs

| 63 | Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. |
| --- | --- |

63

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

| | On those grounds, the Court (Fourth Chamber) hereby rules: |
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On those grounds, the Court (Fourth Chamber) hereby rules:

| | 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 must be interpreted as precluding national legislation or practice under which the performance of a public contract, awarded initially, without a call for tenders, to an in-house entity over which the contracting authority exercised, jointly, control similar to that which it exercises over its own departments, is automatically continued by the economic operator which acquired that entity, following a tendering procedure, where that contracting authority does not have such control over that operator and does not hold any shares in its capital. |
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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 must be interpreted as precluding national legislation or practice under which the performance of a public contract, awarded initially, without a call for tenders, to an in-house entity over which the contracting authority exercised, jointly, control similar to that which it exercises over its own departments, is automatically continued by the economic operator which acquired that entity, following a tendering procedure, where that contracting authority does not have such control over that operator and does not hold any shares in its capital.

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 must be interpreted as precluding national legislation or practice under which the performance of a public contract, awarded initially, without a call for tenders, to an in-house entity over which the contracting authority exercised, jointly, control similar to that which it exercises over its own departments, is automatically continued by the economic operator which acquired that entity, following a tendering procedure, where that contracting authority does not have such control over that operator and does not hold any shares in its capital.

| | [Signatures] |
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[Signatures]

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(
  *1
  )	Language of the case: Italian.

*1