# 62017CJ0216

JUDGMENT OF THE COURT (Eighth Chamber)

19 December 2018 (
  *1
  )

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(Reference for a preliminary ruling — Directive 2004/18/EC — Article 1(5) — Article 32(2) — Award of public works contracts, public supply contracts and public service contracts — Framework agreements — Clause extending the framework agreement to other contracting authorities — Principles of transparency and equal treatment of economic operators — No determination of the quantity covered by subsequent public procurement contracts or determination by reference to the usual requirements of the contracting authorities that are not signatories to the framework agreement — Prohibition)

In Case C‐216/17,

REQUEST for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Council of State, Italy), made by decision of 9 March 2017, received at the Court on 24 April 2017, in the proceedings

Autorità Garante della Concorrenza e del Mercato — Antitrust,

Autorità Garante della Concorrenza e del Mercato — Antitrust,

Coopservice Soc. coop. arl

Coopservice Soc. coop. arl

v

Azienda Socio-Sanitaria Territoriale della Vallecamonica — Sebino (ASST),

Azienda Socio-Sanitaria Territoriale della Vallecamonica — Sebino (ASST),

Azienda Socio-Sanitaria Territoriale del Garda (ASST),

Azienda Socio-Sanitaria Territoriale del Garda (ASST),

Azienda Socio-Sanitaria Territoriale della Valcamonica (ASST),

Azienda Socio-Sanitaria Territoriale della Valcamonica (ASST),

intervener:

Markas Srl,

Markas Srl,

ATI - Zanetti Arturo & C. Srl e in proprio,

ATI - Zanetti Arturo & C. Srl e in proprio,

Regione Lombardia,

Regione Lombardia,

THE COURT (Eighth Chamber),

composed of J. Malenovský, acting as President of the Chamber, M. Safjan and D. Šváby (Rapporteur), Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: R. Șereș, Administrator,

having regard to the written procedure and further to the hearing on 12 July 2018,

after considering the observations submitted on behalf of

| – | Coopservice Soc. coop. arl, by P. S. Pugliano, avvocato, |
| --- | --- |

–

Coopservice Soc. coop. arl, by P. S. Pugliano, avvocato,

| – | Markas Srl, by F.G. Scoca, P. Adami and I. Tranquilli, avvocati, |
| --- | --- |

–

Markas Srl, by F.G. Scoca, P. Adami and I. Tranquilli, avvocati,

| – | the Italian Government, by G. Palmieri, acting as Agent, and by B. Tidore and P. Palmieri, avvocati dello Stato, |
| --- | --- |

–

the Italian Government, by G. Palmieri, acting as Agent, and by B. Tidore and P. Palmieri, avvocati dello Stato,

| – | the Czech Government, by M. Smolek, J. Vláčil and T. Müller, acting as Agents, |
| --- | --- |

–

the Czech Government, by M. Smolek, J. Vláčil and T. Müller, acting as Agents,

| – | the Austrian Government, by M. Fruhmann, acting as Agent, |
| --- | --- |

–

the Austrian Government, by M. Fruhmann, acting as Agent,

| – | the Finnish Government, by S. Hartikainen, acting as Agent, |
| --- | --- |

–

the Finnish Government, by S. Hartikainen, acting as Agent,

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

–

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

after hearing the Opinion of the Advocate General at the sitting on 3 October 2018,

gives the following

Judgment

Judgment

| 1 | This request for a preliminary ruling concerns the interpretation of Article 1(5) and Article 32 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, and corrigendum OJ 2004 L 351, p. 44) and Article 33 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 (OJ 2014 L 94, p. 65). |
| --- | --- |

1

This request for a preliminary ruling concerns the interpretation of Article 1(5) and Article 32 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, and corrigendum OJ 2004 L 351, p. 44) and Article 33 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 (OJ 2014 L 94, p. 65).

| 2 | The request has been made in the context of two actions, which were joined by the referring court, between, in the case of the first action, the Autorità Garante della Concorrenza e del Mercato (Competition and Markets Authority, Italy; ‘the AGCM’) and, in the case of the second action, Coopservice Soc. coop. arl, the appellants in the main proceedings, and the Azienda Socio-Sanitaria Territoriale della Vallecamonica — Sebino (Regional Health and Social Care Authority of Valcamonica — Sebino, Italy; ‘the ASST of Valcamonica’), with regard to the latter’s decision to accede to the contract for environmental sanitation, collection and waste services (‘the initial contract’) concluded during 2012 by the Azienda Socio-Sanitaria Territoriale del Garda (Regional Health and Social Care Authority of Lake Garda, Italy; ‘the ASST of Lake Garda’) and ATI - Zanetti Arturo & C. Srl, an ad hoc association of undertakings comprising Markas Srl and Zanetti Arturo (‘ATI Markas’). |
| --- | --- |

2

The request has been made in the context of two actions, which were joined by the referring court, between, in the case of the first action, the Autorità Garante della Concorrenza e del Mercato (Competition and Markets Authority, Italy; ‘the AGCM’) and, in the case of the second action, Coopservice Soc. coop. arl, the appellants in the main proceedings, and the Azienda Socio-Sanitaria Territoriale della Vallecamonica — Sebino (Regional Health and Social Care Authority of Valcamonica — Sebino, Italy; ‘the ASST of Valcamonica’), with regard to the latter’s decision to accede to the contract for environmental sanitation, collection and waste services (‘the initial contract’) concluded during 2012 by the Azienda Socio-Sanitaria Territoriale del Garda (Regional Health and Social Care Authority of Lake Garda, Italy; ‘the ASST of Lake Garda’) and ATI - Zanetti Arturo & C. Srl, an ad hoc association of undertakings comprising Markas Srl and Zanetti Arturo (‘ATI Markas’).

Legal context

Legal context

Directive 2004/18

Directive 2004/18

| 3 | Recitals 11 and 15 of Directive 2004/18 state:





  ‘(11) | [An EU] definition of framework agreements, together with specific rules on framework agreements concluded for contracts falling within the scope of this Directive, should be provided. Under these rules, when a contracting authority enters into a framework agreement in accordance with the provisions of this Directive relating, in particular, to advertising, time limits and conditions for the submission of tenders, it may enter into contracts based on such a framework agreement during its term of validity either by applying the terms set forth in the framework agreement or, if all terms have not been fixed in advance in the framework agreement, by reopening competition between the parties to the framework agreement in relation to those terms. The reopening of competition should comply with certain rules the aim of which is to guarantee the required flexibility and to guarantee respect for the general principles, in particular the principle of equal treatment. For the same reasons, the term of the framework agreements should not exceed four years, except in cases duly justified by the contracting authorities. |
| --- | --- | --- |

3

Recitals 11 and 15 of Directive 2004/18 state:

‘(11)

[An EU] definition of framework agreements, together with specific rules on framework agreements concluded for contracts falling within the scope of this Directive, should be provided. Under these rules, when a contracting authority enters into a framework agreement in accordance with the provisions of this Directive relating, in particular, to advertising, time limits and conditions for the submission of tenders, it may enter into contracts based on such a framework agreement during its term of validity either by applying the terms set forth in the framework agreement or, if all terms have not been fixed in advance in the framework agreement, by reopening competition between the parties to the framework agreement in relation to those terms. The reopening of competition should comply with certain rules the aim of which is to guarantee the required flexibility and to guarantee respect for the general principles, in particular the principle of equal treatment. For the same reasons, the term of the framework agreements should not exceed four years, except in cases duly justified by the contracting authorities.

...

| (15) | Certain centralised purchasing techniques have been developed in Member States. Several contracting authorities are responsible for making acquisitions or awarding public contracts/framework agreements for other contracting authorities. In view of the large volumes purchased, those techniques help increase competition and streamline public purchasing. Provision should therefore be made for a Community definition of central purchasing bodies dedicated to contracting authorities. A definition should also be given of the conditions under which, in accordance with the principles of non-discrimination and equal treatment, contracting authorities purchasing works, supplies and/or services through a central purchasing body may be deemed to have complied with this Directive.’ |
| --- | --- |

(15)

Certain centralised purchasing techniques have been developed in Member States. Several contracting authorities are responsible for making acquisitions or awarding public contracts/framework agreements for other contracting authorities. In view of the large volumes purchased, those techniques help increase competition and streamline public purchasing. Provision should therefore be made for a Community definition of central purchasing bodies dedicated to contracting authorities. A definition should also be given of the conditions under which, in accordance with the principles of non-discrimination and equal treatment, contracting authorities purchasing works, supplies and/or services through a central purchasing body may be deemed to have complied with this Directive.’

| 4 | Under the heading ‘Definitions’, Article 1(5) of that directive provides:
  ‘A “framework agreement” is an agreement between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the terms governing contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantity envisaged.’ |
| --- | --- |

4

Under the heading ‘Definitions’, Article 1(5) of that directive provides:

‘A “framework agreement” is an agreement between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the terms governing contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantity envisaged.’

| 5 | Article 2 of Directive 2004/18, which is headed ‘Principles of awarding contracts’, states:
  ‘Contracting authorities shall treat economic operators equally and non-discriminatorily and shall act in a transparent way.’ |
| --- | --- |

5

Article 2 of Directive 2004/18, which is headed ‘Principles of awarding contracts’, states:

‘Contracting authorities shall treat economic operators equally and non-discriminatorily and shall act in a transparent way.’

| 6 | Article 9 of that same directive, headed ‘Methods for calculating the estimated value of public contracts, framework agreements and dynamic purchasing systems’, provides:
  ‘1.   The calculation of the estimated value of a public contract shall be based on the total amount payable, net of VAT, as estimated by the contracting authority. This calculation shall take account of the estimated total amount, including any form of option and any renewals of the contract.
  ...
  3.   No works project or proposed purchase of a certain quantity of supplies and/or services may be subdivided to prevent its coming within the scope of this Directive.
  ...
  7.   In the case of public supply or service contracts which are regular in nature or which are intended to be renewed within a given period, the calculation of the estimated contract value shall be based on the following:





  (a) | either the total actual value of the successive contracts of the same type awarded during the preceding 12 months or financial year adjusted, if possible, to take account of the changes in quantity or value which would occur in the course of the 12 months following the initial contract; |
| --- | --- | --- |

6

Article 9 of that same directive, headed ‘Methods for calculating the estimated value of public contracts, framework agreements and dynamic purchasing systems’, provides:

‘1.   The calculation of the estimated value of a public contract shall be based on the total amount payable, net of VAT, as estimated by the contracting authority. This calculation shall take account of the estimated total amount, including any form of option and any renewals of the contract.

...

3.   No works project or proposed purchase of a certain quantity of supplies and/or services may be subdivided to prevent its coming within the scope of this Directive.

...

7.   In the case of public supply or service contracts which are regular in nature or which are intended to be renewed within a given period, the calculation of the estimated contract value shall be based on the following:

(a)

either the total actual value of the successive contracts of the same type awarded during the preceding 12 months or financial year adjusted, if possible, to take account of the changes in quantity or value which would occur in the course of the 12 months following the initial contract;

| (b) | or the total estimated value of the successive contracts awarded during the 12 months following the first delivery, or during the financial year if that is longer than 12 months. |
| --- | --- |

(b)

or the total estimated value of the successive contracts awarded during the 12 months following the first delivery, or during the financial year if that is longer than 12 months.

The choice of method used to calculate the estimated value of a public contract may not be made with the intention of excluding it from the scope of this Directive.

...

9.   With regard to framework agreements and dynamic purchasing systems, the value to be taken into consideration shall be the maximum estimated value net of VAT of all the contracts envisaged for the total term of the framework agreement or the dynamic purchasing system.’

| 7 | Article 32 of Directive 2004/18, which concerns ‘framework agreements’, provides:
  ‘1.   Member States may provide that contracting authorities may conclude framework agreements.
  2.   For the purpose of concluding a framework agreement, contracting authorities shall follow the rules of procedure referred to in this Directive for all phases up to the award of contracts based on that framework agreement. The parties to the framework agreement shall be chosen by applying the award criteria set in accordance with Article 53.
  Contracts based on a framework agreement shall be awarded in accordance with the procedures laid down in paragraphs 3 and 4. Those procedures may be applied only between the contracting authorities and the economic operators originally party to the framework agreement.
  When awarding contracts based on a framework agreement, the parties may under no circumstances make substantial amendments to the terms laid down in that framework agreement, in particular in the case referred to in paragraph 3.
  The term of a framework agreement may not exceed four years, save in exceptional cases duly justified in particular by the subject of the framework agreement.
  Contracting authorities may not use framework agreements improperly or in such a way as to prevent, restrict or distort competition.
  3.   Where a framework agreement is concluded with a single economic operator, contracts based on that agreement shall be awarded within the limits of the terms laid down in the framework agreement.
  For the award of those contracts, contracting authorities may consult the operator party to the framework agreement in writing, requesting it to supplement its tender as necessary.
  4.   Where a framework agreement is concluded with several economic operators, the latter must be at least three in number, insofar as there is a sufficient number of economic operators to satisfy the selection criteria and/or of admissible tenders which meet the award criteria.
  Contracts based on framework agreements concluded with several economic operators may be awarded either:





  – | by application of the terms laid down in the framework agreement without reopening competition, or |
| --- | --- | --- |

7

Article 32 of Directive 2004/18, which concerns ‘framework agreements’, provides:

‘1.   Member States may provide that contracting authorities may conclude framework agreements.

2.   For the purpose of concluding a framework agreement, contracting authorities shall follow the rules of procedure referred to in this Directive for all phases up to the award of contracts based on that framework agreement. The parties to the framework agreement shall be chosen by applying the award criteria set in accordance with Article 53.

Contracts based on a framework agreement shall be awarded in accordance with the procedures laid down in paragraphs 3 and 4. Those procedures may be applied only between the contracting authorities and the economic operators originally party to the framework agreement.

When awarding contracts based on a framework agreement, the parties may under no circumstances make substantial amendments to the terms laid down in that framework agreement, in particular in the case referred to in paragraph 3.

The term of a framework agreement may not exceed four years, save in exceptional cases duly justified in particular by the subject of the framework agreement.

Contracting authorities may not use framework agreements improperly or in such a way as to prevent, restrict or distort competition.

3.   Where a framework agreement is concluded with a single economic operator, contracts based on that agreement shall be awarded within the limits of the terms laid down in the framework agreement.

For the award of those contracts, contracting authorities may consult the operator party to the framework agreement in writing, requesting it to supplement its tender as necessary.

4.   Where a framework agreement is concluded with several economic operators, the latter must be at least three in number, insofar as there is a sufficient number of economic operators to satisfy the selection criteria and/or of admissible tenders which meet the award criteria.

Contracts based on framework agreements concluded with several economic operators may be awarded either:

–

by application of the terms laid down in the framework agreement without reopening competition, or

| – | where not all the terms are laid down in the framework agreement, when the parties are again in competition on the basis of the same and, if necessary, more precisely formulated terms, and, where appropriate, other terms referred to in the specifications of the framework agreement, in accordance with the following procedure: |
| --- | --- |

–

where not all the terms are laid down in the framework agreement, when the parties are again in competition on the basis of the same and, if necessary, more precisely formulated terms, and, where appropriate, other terms referred to in the specifications of the framework agreement, in accordance with the following procedure:

...’

| 8 | Article 35 of that directive, headed ‘Notices’, provides in paragraph 4:
  ‘Contracting authorities which have awarded a public contract or concluded a framework agreement shall send a notice of the results of the award procedure no later than 48 days after the award of the contract or the conclusion of the framework agreement.
  In the case of framework agreements concluded in accordance with Article 32 the contracting authorities are not bound to send a notice of the results of the award procedure for each contract based on that agreement.
  ...’ |
| --- | --- |

8

Article 35 of that directive, headed ‘Notices’, provides in paragraph 4:

‘Contracting authorities which have awarded a public contract or concluded a framework agreement shall send a notice of the results of the award procedure no later than 48 days after the award of the contract or the conclusion of the framework agreement.

In the case of framework agreements concluded in accordance with Article 32 the contracting authorities are not bound to send a notice of the results of the award procedure for each contract based on that agreement.

...’

| 9 | Annex VII A to that directive, concerning ‘information which must be included in public contract notices’, states:
  ‘...
  Contract Notices
  ...





  3. | ...





  (c) | Where appropriate, indicate whether a framework agreement is involved; |
| --- | --- | --- | --- |

9

Annex VII A to that directive, concerning ‘information which must be included in public contract notices’, states:

‘...

Contract Notices

...

3.

...

(c)

Where appropriate, indicate whether a framework agreement is involved;

...

| 6. | ...





  (c) | Public service contracts:





  – | category and description of service. Nomenclature reference number(s). Quantity of services to be provided. Indicate in particular options concerning supplementary purchases and, if known, the provisional timetable for recourse to these options as well as the number of renewals, if any. In the case of renewable contracts over a given period, an estimate of the time frame, if known, for subsequent public contracts for purchase of intended services,
  in the event of a framework agreement, indication also of the planned duration of the framework agreement, the estimated total value of the services for the entire duration of the framework agreement and, as far as possible, the value and the frequency of the contracts to be awarded, |
| --- | --- | --- | --- |

6.

...

(c)

Public service contracts:

–

category and description of service. Nomenclature reference number(s). Quantity of services to be provided. Indicate in particular options concerning supplementary purchases and, if known, the provisional timetable for recourse to these options as well as the number of renewals, if any. In the case of renewable contracts over a given period, an estimate of the time frame, if known, for subsequent public contracts for purchase of intended services,

in the event of a framework agreement, indication also of the planned duration of the framework agreement, the estimated total value of the services for the entire duration of the framework agreement and, as far as possible, the value and the frequency of the contracts to be awarded,

| – | ... |
| --- | --- |

–

...

| 18. | Where there is a framework agreement: the number and, where appropriate, proposed maximum number of economic operators who will be members of it, the duration of the framework agreement provided for, stating, if appropriate, the reasons for any duration exceeding four years. |
| --- | --- |

18.

Where there is a framework agreement: the number and, where appropriate, proposed maximum number of economic operators who will be members of it, the duration of the framework agreement provided for, stating, if appropriate, the reasons for any duration exceeding four years.

...’

Italian law

Italian law

National law

National law

| 10 | The last part of paragraph 449 of Article 1 of legge n. 296 (Law No 296) of 27 December 2006 (ordinary supplement No 244 published in GURI No 299 of 27 December 2006) provides:
  ‘National health service bodies shall, in all circumstances, be required to obtain supplies through agreements concluded by the competent regional authorities, or, where no regional agreements are in force, through framework agreements concluded by the central purchasing body of the [Italian public administration].’ |
| --- | --- |

10

The last part of paragraph 449 of Article 1 of legge n. 296 (Law No 296) of 27 December 2006 (ordinary supplement No 244 published in GURI No 299 of 27 December 2006) provides:

‘National health service bodies shall, in all circumstances, be required to obtain supplies through agreements concluded by the competent regional authorities, or, where no regional agreements are in force, through framework agreements concluded by the central purchasing body of the [Italian public administration].’

| 11 | The decreto legislativo n. 163 (Legislative Decree No 163) of 12 April 2006 (ordinary supplement No 107 to GURI No 100 of 2 May 2006), which was in force at the time of the facts at issue in the main proceedings, had the objective, inter alia, of transposing Directive 2004/18. |
| --- | --- |

11

The decreto legislativo n. 163 (Legislative Decree No 163) of 12 April 2006 (ordinary supplement No 107 to GURI No 100 of 2 May 2006), which was in force at the time of the facts at issue in the main proceedings, had the objective, inter alia, of transposing Directive 2004/18.

| 12 | Article 3(13) of that decree states:
  ‘A “framework agreement” is an agreement between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the terms governing contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantity envisaged.’ |
| --- | --- |

12

Article 3(13) of that decree states:

‘A “framework agreement” is an agreement between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the terms governing contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantity envisaged.’

| 13 | The functioning of a framework agreement concluded with a single economic operator was described in Article 59 of that decree. Paragraphs 2 to 4 of that provision set out verbatim the first to third subparagraphs of Article 32(2) and Article 32(3) of Directive 2004/18. However, it omitted to transpose the fourth and fifth subparagraphs of Article 32(2) of that directive, which, respectively, have the objectives of limiting the term of a framework agreement to four years, except for in duly justified exceptional cases, and prohibiting contracting authorities from using framework agreements improperly or in such a way as to prevent, restrict or distort competition. |
| --- | --- |

13

The functioning of a framework agreement concluded with a single economic operator was described in Article 59 of that decree. Paragraphs 2 to 4 of that provision set out verbatim the first to third subparagraphs of Article 32(2) and Article 32(3) of Directive 2004/18. However, it omitted to transpose the fourth and fifth subparagraphs of Article 32(2) of that directive, which, respectively, have the objectives of limiting the term of a framework agreement to four years, except for in duly justified exceptional cases, and prohibiting contracting authorities from using framework agreements improperly or in such a way as to prevent, restrict or distort competition.

| 14 | Article 1(12) of the decreto-legge 6 luglio 2012 n. 95, convertito con modificazioni dalla legge 7 agosto 2012, n. 135 (Decree Law No 95 of 6 July 2012 (ordinary supplement No 141 to GURI No 156 of 6 July 2012), amended and converted into law by Law No 135 of 7 August 2012, ordinary supplement No 173 to GURI No 189 of 14 August 2012), allows the terms of a public procurement contract to be amended during performance in order to improve the contract terms established by the initial tendering procedure. |
| --- | --- |

14

Article 1(12) of the decreto-legge 6 luglio 2012 n. 95, convertito con modificazioni dalla legge 7 agosto 2012, n. 135 (Decree Law No 95 of 6 July 2012 (ordinary supplement No 141 to GURI No 156 of 6 July 2012), amended and converted into law by Law No 135 of 7 August 2012, ordinary supplement No 173 to GURI No 189 of 14 August 2012), allows the terms of a public procurement contract to be amended during performance in order to improve the contract terms established by the initial tendering procedure.

| 15 | Under Article 15(13)(b) of that decree law, a contract for the supply of goods or services that has become too onerous, in the light of the terms established by law, can be rescinded with a view to concluding, without the need for a new tendering procedure, a new contract the terms of which are consistent with those contained in ongoing contracts with other undertakings. |
| --- | --- |

15

Under Article 15(13)(b) of that decree law, a contract for the supply of goods or services that has become too onerous, in the light of the terms established by law, can be rescinded with a view to concluding, without the need for a new tendering procedure, a new contract the terms of which are consistent with those contained in ongoing contracts with other undertakings.

Regional law

Regional law

| 16 | In Lombardy (Italy), Article 3(7) of the legge regionale n. 14 (Regional Law No 14) of 19 May 1997 obliges all regional authorities to use centralised procurement methods, including the regional purchasing body. |
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16

In Lombardy (Italy), Article 3(7) of the legge regionale n. 14 (Regional Law No 14) of 19 May 1997 obliges all regional authorities to use centralised procurement methods, including the regional purchasing body.

| 17 | Regional Council Decision No 2633 of 6 December 2011 reiterates the obligation on ASSTs to place group orders and use central purchasing bodies. |
| --- | --- |

17

Regional Council Decision No 2633 of 6 December 2011 reiterates the obligation on ASSTs to place group orders and use central purchasing bodies.

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

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

| 18 | The origin of the dispute in the main proceedings is Decree No 1158/2015, which was issued on 30 December 2015 by the Director-General of the ASST of Valcamonica for the purposes of acceding to the initial contract, without a new public tendering procedure, in respect of the period from 1 February 2016 to 15 February 2021. |
| --- | --- |

18

The origin of the dispute in the main proceedings is Decree No 1158/2015, which was issued on 30 December 2015 by the Director-General of the ASST of Valcamonica for the purposes of acceding to the initial contract, without a new public tendering procedure, in respect of the period from 1 February 2016 to 15 February 2021.

| 19 | For that purpose, the Director-General of the ASST of Valcamonica requested an extension of the public contract initially awarded to ATI Markas by Decree No 828/2011 issued on 4 November 2011 by the Director-General of the ASST of Lake Garda (‘Decree No 828/2011’). |
| --- | --- |

19

For that purpose, the Director-General of the ASST of Valcamonica requested an extension of the public contract initially awarded to ATI Markas by Decree No 828/2011 issued on 4 November 2011 by the Director-General of the ASST of Lake Garda (‘Decree No 828/2011’).

| 20 | That decree allocated to ATI Markas certain environmental sanitation, collection and waste services for a period of 108 months, which is 9 years, from 16 February 2012 to 15 February 2021. Paragraph 5 of the tender specifications relating to that public contract included a clause headed ‘Extension of the contract’ (‘the extension clause’), which allowed one or more of the bodies referred to in that clause to request that the successful bidder extend the contract to cover them ‘subject to conditions identical to those of the relevant procurement contract’. That clause, which referred, inter alia, to the ASST of Valcamonica, specified that the successful bidder was not obliged to accept the request for extension. Further, on the basis of that clause, an ‘independent contractual relationship’ arose, which covered the remaining part of the contract period set out in the initial contract. |
| --- | --- |

20

That decree allocated to ATI Markas certain environmental sanitation, collection and waste services for a period of 108 months, which is 9 years, from 16 February 2012 to 15 February 2021. Paragraph 5 of the tender specifications relating to that public contract included a clause headed ‘Extension of the contract’ (‘the extension clause’), which allowed one or more of the bodies referred to in that clause to request that the successful bidder extend the contract to cover them ‘subject to conditions identical to those of the relevant procurement contract’. That clause, which referred, inter alia, to the ASST of Valcamonica, specified that the successful bidder was not obliged to accept the request for extension. Further, on the basis of that clause, an ‘independent contractual relationship’ arose, which covered the remaining part of the contract period set out in the initial contract.

| 21 | Coopservice, which had until then provided cleaning services for the premises of the ASST of Valcamonica, and AGCM each brought a claim before the Tribunale amministrativo regionale della Lombardia (Regional Administrative Court, Lombardy, Italy) seeking, inter alia, annulment of Decree No 1158/2015, Decree No 828/2011 and the extension clause on the ground that those measures would allow a new services contract to be awarded in breach of both national and EU competition law and, in particular, of the obligation to organise a tendering procedure. |
| --- | --- |

21

Coopservice, which had until then provided cleaning services for the premises of the ASST of Valcamonica, and AGCM each brought a claim before the Tribunale amministrativo regionale della Lombardia (Regional Administrative Court, Lombardy, Italy) seeking, inter alia, annulment of Decree No 1158/2015, Decree No 828/2011 and the extension clause on the ground that those measures would allow a new services contract to be awarded in breach of both national and EU competition law and, in particular, of the obligation to organise a tendering procedure.

| 22 | By judgment of 7 November 2016, the Tribunale amministrativo regionale della Lombardia (Regional Administrative Court, Lombardy) dismissed those two actions on the ground that a framework agreement may be concluded between a given economic operator and a single contracting authority acting on its own behalf and on behalf of other contracting authorities which, although mentioned in the agreement, are not parties to it directly. In addition, it held that it is not necessary that a framework agreement mention, expressly and at the outset, the quantity of services that may be required by the contracting authorities that may have recourse to the extension clause, as that quantity can be deduced by reference to their usual requirements. |
| --- | --- |

22

By judgment of 7 November 2016, the Tribunale amministrativo regionale della Lombardia (Regional Administrative Court, Lombardy) dismissed those two actions on the ground that a framework agreement may be concluded between a given economic operator and a single contracting authority acting on its own behalf and on behalf of other contracting authorities which, although mentioned in the agreement, are not parties to it directly. In addition, it held that it is not necessary that a framework agreement mention, expressly and at the outset, the quantity of services that may be required by the contracting authorities that may have recourse to the extension clause, as that quantity can be deduced by reference to their usual requirements.

| 23 | Coopservice and the AGCM then brought an appeal against that judgment before the referring court, the Consiglio di Stato (Council of State, Italy). |
| --- | --- |

23

Coopservice and the AGCM then brought an appeal against that judgment before the referring court, the Consiglio di Stato (Council of State, Italy).

| 24 | Before that court, Markas, which intervened in support of the ASST of Valcamonica, claims that its accession to the initial contract complied with Article 33 of Directive 2014/24 and requests that a reference for a preliminary ruling be made to the Court of Justice for an interpretation of that provision. |
| --- | --- |

24

Before that court, Markas, which intervened in support of the ASST of Valcamonica, claims that its accession to the initial contract complied with Article 33 of Directive 2014/24 and requests that a reference for a preliminary ruling be made to the Court of Justice for an interpretation of that provision.

| 25 | In that regard, the referring court arrived at three sets of findings. |
| --- | --- |

25

In that regard, the referring court arrived at three sets of findings.

| 26 | In the first place, it takes the view that Article 32 of Directive 2004/18 applies to the case in the main proceedings. However, given that, first, that directive was repealed with effect from 18 April 2016 by Directive 2014/24 and, second, the provisions of the latter that are relevant to the outcome of the dispute in the main proceedings are the same as those in Directive 2004/18, the referring court concludes that it is appropriate to adopt a combined interpretation of Directives 2004/18 and 2014/24. |
| --- | --- |

26

In the first place, it takes the view that Article 32 of Directive 2004/18 applies to the case in the main proceedings. However, given that, first, that directive was repealed with effect from 18 April 2016 by Directive 2014/24 and, second, the provisions of the latter that are relevant to the outcome of the dispute in the main proceedings are the same as those in Directive 2004/18, the referring court concludes that it is appropriate to adopt a combined interpretation of Directives 2004/18 and 2014/24.

| 27 | In the second place, the referring court takes the view that it is correct, in principle, to classify the initial contract as a ‘framework agreement’ within the meaning of Directives 2004/18 and 2014/24. |
| --- | --- |

27

In the second place, the referring court takes the view that it is correct, in principle, to classify the initial contract as a ‘framework agreement’ within the meaning of Directives 2004/18 and 2014/24.

| 28 | In the third place, the referring court finds that a ‘framework agreement’ within the meaning of Article 1(5) and Article 32 of Directive 2004/18 has two main characteristics. First, the call for tenders is supposed to be launched beforehand, at the time when the successful bidder is named, and should therefore not be necessary for the purpose of concluding each of the contracts awarded under the framework agreement with the economic operator who was successful at the end of the public tendering procedure that led to the conclusion of that framework agreement (‘the subsequent contracts’). Second, having regard to the adverbial phrase ‘where appropriate’ in Article 1(5) of Directive 2004/18, a framework agreement need not necessarily set out the quantities that it will cover. |
| --- | --- |

28

In the third place, the referring court finds that a ‘framework agreement’ within the meaning of Article 1(5) and Article 32 of Directive 2004/18 has two main characteristics. First, the call for tenders is supposed to be launched beforehand, at the time when the successful bidder is named, and should therefore not be necessary for the purpose of concluding each of the contracts awarded under the framework agreement with the economic operator who was successful at the end of the public tendering procedure that led to the conclusion of that framework agreement (‘the subsequent contracts’). Second, having regard to the adverbial phrase ‘where appropriate’ in Article 1(5) of Directive 2004/18, a framework agreement need not necessarily set out the quantities that it will cover.

| 29 | According to the referring court, although the position of the Tribunale amministrativo regionale della Lombardia (Regional Administrative Court, Lombardy) may be justified in the light of the objective of promoting the group purchasing procedures endorsed by the Italian legislature, such a position does not, in any event, comply with EU law. Further, that court notes the lack of relevant case-law from the Court of Justice on this matter. |
| --- | --- |

29

According to the referring court, although the position of the Tribunale amministrativo regionale della Lombardia (Regional Administrative Court, Lombardy) may be justified in the light of the objective of promoting the group purchasing procedures endorsed by the Italian legislature, such a position does not, in any event, comply with EU law. Further, that court notes the lack of relevant case-law from the Court of Justice on this matter.

| 30 | In that regard, the Consiglio di Stato (Council of State) takes the view that the interpretation given to the adverbial phrase ‘where appropriate’ by the Tribunale amministrativo regionale della Lombardia (Regional Administrative Court, Lombardy) is too broad. From the referring court’s point of view, the extension clause should be limited in two ways. Its standpoint, as reflected in a number of its judgments, is that, on a subjective level, that clause should identify the contracting authorities that can have recourse to it, while, on an objective level, it should set out the economic value of any extension, including a maximum amount. Any interpretation to the contrary would render it lawful for an unlimited series of contracts to be awarded directly, which would infringe the basic principles of EU law, under which public contracts are to be awarded through public tendering procedures, and would therefore undermine competition. |
| --- | --- |

30

In that regard, the Consiglio di Stato (Council of State) takes the view that the interpretation given to the adverbial phrase ‘where appropriate’ by the Tribunale amministrativo regionale della Lombardia (Regional Administrative Court, Lombardy) is too broad. From the referring court’s point of view, the extension clause should be limited in two ways. Its standpoint, as reflected in a number of its judgments, is that, on a subjective level, that clause should identify the contracting authorities that can have recourse to it, while, on an objective level, it should set out the economic value of any extension, including a maximum amount. Any interpretation to the contrary would render it lawful for an unlimited series of contracts to be awarded directly, which would infringe the basic principles of EU law, under which public contracts are to be awarded through public tendering procedures, and would therefore undermine competition.

| 31 | The referring court is therefore inclined to give that adverbial phrase a restrictive interpretation, in accordance with which the framework agreement determines, ‘where appropriate’, the quantity of the services that it will cover. That detail should be omitted only where the services themselves are clearly and unequivocally determined or determinable, bearing in mind the factual or legal situation which the parties to the framework agreement are aware of, even if they have not expressly included it in the agreement itself. |
| --- | --- |

31

The referring court is therefore inclined to give that adverbial phrase a restrictive interpretation, in accordance with which the framework agreement determines, ‘where appropriate’, the quantity of the services that it will cover. That detail should be omitted only where the services themselves are clearly and unequivocally determined or determinable, bearing in mind the factual or legal situation which the parties to the framework agreement are aware of, even if they have not expressly included it in the agreement itself.

| 32 | In reply to a request for clarification sent by the Court to the referring court, in accordance with Article 101 of the Rules of Procedure, in order to ascertain the reasons why that court classified the contract concluded between the original contracting authority and ATI Markas as a framework agreement within the meaning of Article 1(5) and Article 32 of Directive 2004/18, despite the fact that that public contract was for a term of nine years, the referring court explained in a decision of 20 February 2018 that it was obliged, as an administrative court, to comply with the principle that the parties delimit the subject matter of the proceedings and that a court could raise matters of its own motion only where an administrative measure is vitiated by defects that are so serious as to justify its annulment. According to the referring court, ‘it is manifestly appropriate ... to conclude that a term longer than the maximum term provided by law does not constitute a defect of such seriousness as to justify the annulment of the measure, which the court could therefore, theoretically, raise of its own motion.’ In addition, the referring court notes that, in the light of its particular purpose, which is to guarantee the proper functioning of several hospitals, the initial contract could be covered by the derogation set out in the fourth subparagraph of Article 32(2) of Directive 2004/18. |
| --- | --- |

32

In reply to a request for clarification sent by the Court to the referring court, in accordance with Article 101 of the Rules of Procedure, in order to ascertain the reasons why that court classified the contract concluded between the original contracting authority and ATI Markas as a framework agreement within the meaning of Article 1(5) and Article 32 of Directive 2004/18, despite the fact that that public contract was for a term of nine years, the referring court explained in a decision of 20 February 2018 that it was obliged, as an administrative court, to comply with the principle that the parties delimit the subject matter of the proceedings and that a court could raise matters of its own motion only where an administrative measure is vitiated by defects that are so serious as to justify its annulment. According to the referring court, ‘it is manifestly appropriate ... to conclude that a term longer than the maximum term provided by law does not constitute a defect of such seriousness as to justify the annulment of the measure, which the court could therefore, theoretically, raise of its own motion.’ In addition, the referring court notes that, in the light of its particular purpose, which is to guarantee the proper functioning of several hospitals, the initial contract could be covered by the derogation set out in the fourth subparagraph of Article 32(2) of Directive 2004/18.

| 33 | In those circumstances, the Consiglio di Stato (Council of State) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:





  ‘(1) | Must Article [1](5) and Article 32 of Directive 2004/18 and Article 33 of Directive 2014/24 repealing Directive 2004/18 be interpreted as allowing the conclusion of a framework agreement in which:





  – | a contracting authority acts on its own behalf and on behalf of other contracting authorities specifically indicated, which are not, however, direct parties to the framework agreement; |
| --- | --- | --- | --- |

33

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

‘(1)

Must Article [1](5) and Article 32 of Directive 2004/18 and Article 33 of Directive 2014/24 repealing Directive 2004/18 be interpreted as allowing the conclusion of a framework agreement in which:

–

a contracting authority acts on its own behalf and on behalf of other contracting authorities specifically indicated, which are not, however, direct parties to the framework agreement;

| – | the quantity of services that may be required by the non-signatory contracting authorities when they enter into the subsequent contracts envisaged in the framework agreement itself is not determined? |
| --- | --- |

–

the quantity of services that may be required by the non-signatory contracting authorities when they enter into the subsequent contracts envisaged in the framework agreement itself is not determined?

| (2) | If the answer to question (1) should be in the negative, must Article [1](5) and Article 32 of Directive 2004/18 and Article 33 of Directive 2014/24 be interpreted as allowing the conclusion of a framework agreement in which:





  – | a contracting authority acts on its own behalf and on behalf of other contracting authorities specifically indicated, which are not, however, direct parties to the framework agreement; |
| --- | --- | --- |

(2)

If the answer to question (1) should be in the negative, must Article [1](5) and Article 32 of Directive 2004/18 and Article 33 of Directive 2014/24 be interpreted as allowing the conclusion of a framework agreement in which:

–

a contracting authority acts on its own behalf and on behalf of other contracting authorities specifically indicated, which are not, however, direct parties to the framework agreement;

| – | the quantity of services that may be required by the non-signatory contracting authorities when they enter into the subsequent contracts envisaged in the framework agreement itself is determined by reference to their usual requirements?’ |
| --- | --- |

–

the quantity of services that may be required by the non-signatory contracting authorities when they enter into the subsequent contracts envisaged in the framework agreement itself is determined by reference to their usual requirements?’

Admissibility of the request for a preliminary ruling

Admissibility of the request for a preliminary ruling

| 34 | It is apparent from the request for a preliminary ruling that the reasoning of the referring court is based on the premiss that the initial contract should be classified as a ‘framework agreement’ within the meaning of Article 1(5) and Article 32 of Directive 2004/18. |
| --- | --- |

34

It is apparent from the request for a preliminary ruling that the reasoning of the referring court is based on the premiss that the initial contract should be classified as a ‘framework agreement’ within the meaning of Article 1(5) and Article 32 of Directive 2004/18.

| 35 | However, Coopservice and the European Commission question the validity of that premiss. They submit that the initial contract infringes the fourth subparagraph of Article 32(2) of Directive 2004/18, under which the term of a framework agreement cannot exceed four years, save ‘in exceptional cases duly justified in particular by the subject of the framework agreement’. No explanation has been put forward to justify why the four-year maximum period has not been complied with. They argue that it follows that that agreement cannot be classified as a ‘framework agreement’ within the meaning of Directive 2004/18 and, consequently, that the request for a preliminary ruling should be declared inadmissible. |
| --- | --- |

35

However, Coopservice and the European Commission question the validity of that premiss. They submit that the initial contract infringes the fourth subparagraph of Article 32(2) of Directive 2004/18, under which the term of a framework agreement cannot exceed four years, save ‘in exceptional cases duly justified in particular by the subject of the framework agreement’. No explanation has been put forward to justify why the four-year maximum period has not been complied with. They argue that it follows that that agreement cannot be classified as a ‘framework agreement’ within the meaning of Directive 2004/18 and, consequently, that the request for a preliminary ruling should be declared inadmissible.

| 36 | By failing to set out the reasons why the initial contract, which had a term of nine years, could be covered by the derogation set out in the fourth subparagraph of Article 32(2) of Directive 2004/18, the referring court has neither defined the factual and legislative context of the questions that it has referred to the Court nor explained the factual circumstances on which those questions are based, contrary to the requirements of Article 94 of the Rules of Procedure of the Court. |
| --- | --- |

36

By failing to set out the reasons why the initial contract, which had a term of nine years, could be covered by the derogation set out in the fourth subparagraph of Article 32(2) of Directive 2004/18, the referring court has neither defined the factual and legislative context of the questions that it has referred to the Court nor explained the factual circumstances on which those questions are based, contrary to the requirements of Article 94 of the Rules of Procedure of the Court.

| 37 | In that regard, it should be noted that it is apparent from the Court’s case-law that, in the context of the cooperation between the latter and national courts, instituted by Article 267 TFEU, the need to provide an interpretation of EU law which can be of use to the referring court means that it is necessary for that court to define the factual and legislative context of the questions referred or, at the very least, to explain the factual circumstances on which those questions are based. The Court of Justice is empowered to rule on the interpretation or validity of EU provisions only on the basis of the facts which the national court puts before it (see, recently, in the context of freedom of establishment, order of 31 May 2018, Bán, C‐24/18, not published, EU:C:2018:376, paragraph 14 and the case-law cited). |
| --- | --- |

37

In that regard, it should be noted that it is apparent from the Court’s case-law that, in the context of the cooperation between the latter and national courts, instituted by Article 267 TFEU, the need to provide an interpretation of EU law which can be of use to the referring court means that it is necessary for that court to define the factual and legislative context of the questions referred or, at the very least, to explain the factual circumstances on which those questions are based. The Court of Justice is empowered to rule on the interpretation or validity of EU provisions only on the basis of the facts which the national court puts before it (see, recently, in the context of freedom of establishment, order of 31 May 2018, Bán, C‐24/18, not published, EU:C:2018:376, paragraph 14 and the case-law cited).

| 38 | That being said, in accordance with the Court’s settled case-law, the procedure provided for by Article 267 TFEU is an instrument of cooperation between the Court of Justice and national courts, by means of which the former provides the latter with the points of interpretation of EU law necessary in order for them to decide the disputes before them (see, in particular, to that effect, judgments of 16 July 1992, Meilicke, C‐83/91, EU:C:1992:332, paragraph 22, and of 20 December 2017, Global Starnet, C‐322/16, EU:C:2017:985, paragraph 24). |
| --- | --- |

38

That being said, in accordance with the Court’s settled case-law, the procedure provided for by Article 267 TFEU is an instrument of cooperation between the Court of Justice and national courts, by means of which the former provides the latter with the points of interpretation of EU law necessary in order for them to decide the disputes before them (see, in particular, to that effect, judgments of 16 July 1992, Meilicke, C‐83/91, EU:C:1992:332, paragraph 22, and of 20 December 2017, Global Starnet, C‐322/16, EU:C:2017:985, paragraph 24).

| 39 | In the context of that cooperation, questions relating to EU law enjoy a presumption of relevance, which means that the Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, to that effect, judgments of 5 December 2006, Cipolla and Others, C‐94/04 and C‐202/04, EU:C:2006:758, paragraph 25, and of 11 May 2017, Archus and Gama, C‐131/16, EU:C:2017:358, paragraph 42). |
| --- | --- |

39

In the context of that cooperation, questions relating to EU law enjoy a presumption of relevance, which means that the Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, to that effect, judgments of 5 December 2006, Cipolla and Others, C‐94/04 and C‐202/04, EU:C:2006:758, paragraph 25, and of 11 May 2017, Archus and Gama, C‐131/16, EU:C:2017:358, paragraph 42).

| 40 | Moreover, EU law does not require national courts to raise of their own motion an issue concerning the breach of provisions of EU law where examination of that issue would oblige them to abandon the passive role assigned to them by going beyond the ambit of the dispute defined by the parties themselves and relying on facts and circumstances other than those on which the party with an interest in application of those provisions bases his claim (see, to that effect, judgment of 14 December 1995, van Schijndel and van Veen, C‐430/93 and C‐431/93, EU:C:1995:441, paragraphs 21 and 22). |
| --- | --- |

40

Moreover, EU law does not require national courts to raise of their own motion an issue concerning the breach of provisions of EU law where examination of that issue would oblige them to abandon the passive role assigned to them by going beyond the ambit of the dispute defined by the parties themselves and relying on facts and circumstances other than those on which the party with an interest in application of those provisions bases his claim (see, to that effect, judgment of 14 December 1995, van Schijndel and van Veen, C‐430/93 and C‐431/93, EU:C:1995:441, paragraphs 21 and 22).

| 41 | However, it is for the referring court to examine whether, as the Advocate General points out in point 77 of his Opinion, it is not possible for it to assess the compatibility of the term laid down in the initial contract with the fourth subparagraph of Article 32(2) of Directive 2004/18, since the parties to the main proceedings appear to have relied on paragraph 6(c), headed ‘Public service contracts’, under the heading ‘Contract Notices’ in Annex VII A to that directive. The latter provision mentions, amongst the information that must always be included in public service contract notices, the estimated total value of the services for the entire duration of the framework agreement. |
| --- | --- |

41

However, it is for the referring court to examine whether, as the Advocate General points out in point 77 of his Opinion, it is not possible for it to assess the compatibility of the term laid down in the initial contract with the fourth subparagraph of Article 32(2) of Directive 2004/18, since the parties to the main proceedings appear to have relied on paragraph 6(c), headed ‘Public service contracts’, under the heading ‘Contract Notices’ in Annex VII A to that directive. The latter provision mentions, amongst the information that must always be included in public service contract notices, the estimated total value of the services for the entire duration of the framework agreement.

| 42 | Moreover, it has not been established that a public contract, such as the initial contract, cannot be classified as a ‘framework agreement’ within the meaning of Article 1(5) and the fourth subparagraph of Article 32(2) of Directive 2004/18 simply on the basis that its term was greater than four years and the contracting authority has failed duly to justify why the term exceeds that limit. In a situation such as that in the main proceedings, it cannot be ruled out, in particular, that a contact such as the initial contract constitutes a valid framework agreement within the meaning of the latter provision during the first four years of its application and expires at the end of that period. |
| --- | --- |

42

Moreover, it has not been established that a public contract, such as the initial contract, cannot be classified as a ‘framework agreement’ within the meaning of Article 1(5) and the fourth subparagraph of Article 32(2) of Directive 2004/18 simply on the basis that its term was greater than four years and the contracting authority has failed duly to justify why the term exceeds that limit. In a situation such as that in the main proceedings, it cannot be ruled out, in particular, that a contact such as the initial contract constitutes a valid framework agreement within the meaning of the latter provision during the first four years of its application and expires at the end of that period.

| 43 | Consequently, the request for a preliminary ruling is admissible. |
| --- | --- |

43

Consequently, the request for a preliminary ruling is admissible.

Consideration of the questions referred

Consideration of the questions referred

| 44 | In the questions that it puts before the Court, the referring court cites at the same time Directives 2004/18 and 2014/24. |
| --- | --- |

44

In the questions that it puts before the Court, the referring court cites at the same time Directives 2004/18 and 2014/24.

| 45 | In that regard, it should be recalled, as a preliminary point, that, in accordance with the Court’s settled case-law, the applicable directive is, as a rule, the one in force when the contracting authority chose the type of procedure to be followed and decides definitively whether it is necessary for a prior call for tenders to be issued for the award of a public contract. Conversely, a directive is not applicable if the period prescribed for its transposition expired after that point in time (see, to that effect, judgments of 10 July 2014, Impresa Pizzarotti, C‐213/13, EU:C:2014:2067, paragraph 31, and of 7 April 2016, Partner Apelski Dariusz, C‐324/14, EU:C:2016:214, paragraph 83). |
| --- | --- |

45

In that regard, it should be recalled, as a preliminary point, that, in accordance with the Court’s settled case-law, the applicable directive is, as a rule, the one in force when the contracting authority chose the type of procedure to be followed and decides definitively whether it is necessary for a prior call for tenders to be issued for the award of a public contract. Conversely, a directive is not applicable if the period prescribed for its transposition expired after that point in time (see, to that effect, judgments of 10 July 2014, Impresa Pizzarotti, C‐213/13, EU:C:2014:2067, paragraph 31, and of 7 April 2016, Partner Apelski Dariusz, C‐324/14, EU:C:2016:214, paragraph 83).

| 46 | In the case in the main proceedings, the initial contract took the form of Decree No 828/2011, adopted on 4 November 2011, whereas Directive 2014/24 repealed Directive 2004/18 with effect only from 18 April 2016. |
| --- | --- |

46

In the case in the main proceedings, the initial contract took the form of Decree No 828/2011, adopted on 4 November 2011, whereas Directive 2014/24 repealed Directive 2004/18 with effect only from 18 April 2016.

| 47 | Consequently, at the material time in the main proceedings, Directive 2004/18 was still applicable, which means that it is necessary to interpret the request for a preliminary ruling as seeking to obtain an interpretation of that directive rather than Directive 2014/24 (see, by analogy, order of 10 November 2016, Spinosa Costruzioni Generali and Melfi, C‐162/16, not published, EU:C:2016:870, paragraph 21). |
| --- | --- |

47

Consequently, at the material time in the main proceedings, Directive 2004/18 was still applicable, which means that it is necessary to interpret the request for a preliminary ruling as seeking to obtain an interpretation of that directive rather than Directive 2014/24 (see, by analogy, order of 10 November 2016, Spinosa Costruzioni Generali and Melfi, C‐162/16, not published, EU:C:2016:870, paragraph 21).

| 48 | Therefore, it seems that, by its two questions, which it is appropriate to examined together, the referring court asks, in essence, whether Article 1(5) and Article 32 of Directive 2004/18 must be interpreted as allowing the conclusion of a framework agreement in which, first, a contracting authority acts on its own behalf and on behalf of other contracting authorities specifically indicated, which are not, however, direct parties to the framework agreement and, second, the quantity of services that may be required by the non-signatory contracting authorities when they conclude the subsequent contracts envisaged in the framework agreement itself is not determined or is determined by reference to their usual requirements. |
| --- | --- |

48

Therefore, it seems that, by its two questions, which it is appropriate to examined together, the referring court asks, in essence, whether Article 1(5) and Article 32 of Directive 2004/18 must be interpreted as allowing the conclusion of a framework agreement in which, first, a contracting authority acts on its own behalf and on behalf of other contracting authorities specifically indicated, which are not, however, direct parties to the framework agreement and, second, the quantity of services that may be required by the non-signatory contracting authorities when they conclude the subsequent contracts envisaged in the framework agreement itself is not determined or is determined by reference to their usual requirements.

Whether a contracting authority has the power to act on its own behalf and on behalf of other contracting authorities specifically indicated, which are not, however, direct parties to the framework agreement

Whether a contracting authority has the power to act on its own behalf and on behalf of other contracting authorities specifically indicated, which are not, however, direct parties to the framework agreement

| 49 | Under the second subparagraph of Article 32(2) of Directive 2004/18, contracts based on a framework agreement are to be awarded in accordance with the procedures that may be applied only between the contracting authorities and the economic operators originally party to that agreement. |
| --- | --- |

49

Under the second subparagraph of Article 32(2) of Directive 2004/18, contracts based on a framework agreement are to be awarded in accordance with the procedures that may be applied only between the contracting authorities and the economic operators originally party to that agreement.

| 50 | As the wording of that provision in isolation does not allow it to be determined whether the requirement to be an original party to the framework agreement applies to both contracting authorities and economic operators or solely to the latter, it is necessary to take into account not only the terms of that provision, but also its context and the objectives pursued by the legislation of which it is a part (see, to that effect, judgment of 17 November 1983, Merck, 292/82, EU:C:1983:335, paragraph 12). |
| --- | --- |

50

As the wording of that provision in isolation does not allow it to be determined whether the requirement to be an original party to the framework agreement applies to both contracting authorities and economic operators or solely to the latter, it is necessary to take into account not only the terms of that provision, but also its context and the objectives pursued by the legislation of which it is a part (see, to that effect, judgment of 17 November 1983, Merck, 292/82, EU:C:1983:335, paragraph 12).

| 51 | In that regard, it is appropriate, first, to note that the second subparagraph of Article 32(4) of Directive 2004/18, read in the light of recital 11 of that directive, provides that, where a framework agreement has been concluded with several successful bidders, subsequent contracts are to be concluded after competition has been reopened between the parties to the framework agreement in relation to the terms that have not been fixed. Further, paragraph 18, under the heading ‘Contract Notices’, in Annex VII A to that directive obliges the contracting authority that is an original party to the framework agreement to indicate the ‘the number and, where appropriate, proposed maximum number of economic operators who will be members of it ...’. |
| --- | --- |

51

In that regard, it is appropriate, first, to note that the second subparagraph of Article 32(4) of Directive 2004/18, read in the light of recital 11 of that directive, provides that, where a framework agreement has been concluded with several successful bidders, subsequent contracts are to be concluded after competition has been reopened between the parties to the framework agreement in relation to the terms that have not been fixed. Further, paragraph 18, under the heading ‘Contract Notices’, in Annex VII A to that directive obliges the contracting authority that is an original party to the framework agreement to indicate the ‘the number and, where appropriate, proposed maximum number of economic operators who will be members of it ...’.

| 52 | It follows from those provisions that the requirement to be an original party to the framework agreement applies only to economic operators, as it is out of the question that contracting authorities would be required to compete amongst themselves. |
| --- | --- |

52

It follows from those provisions that the requirement to be an original party to the framework agreement applies only to economic operators, as it is out of the question that contracting authorities would be required to compete amongst themselves.

| 53 | In addition, such an interpretation helps to ensure that practical effect is given to Article 1(5) and Article 32 of Directive 2004/18, the objective of which is, inter alia, to streamline public purchasing by encouraging, through framework agreements, collective public purchasing in order to achieve economies of scale. |
| --- | --- |

53

In addition, such an interpretation helps to ensure that practical effect is given to Article 1(5) and Article 32 of Directive 2004/18, the objective of which is, inter alia, to streamline public purchasing by encouraging, through framework agreements, collective public purchasing in order to achieve economies of scale.

| 54 | Further, that interpretation is borne out, as the Advocate General noted in point 62 of his Opinion, by the wording of the second subparagraph of Article 32(2) of Directive 2014/24, in accordance with which the procedures for the awarding of contracts based on a framework agreement may be applied only between, on the one hand, those contracting authorities specifically identified for this purpose in the invitation to tender or in the invitation to confirm interest and, on the other hand, those economic operators party to the framework agreement as concluded. |
| --- | --- |

54

Further, that interpretation is borne out, as the Advocate General noted in point 62 of his Opinion, by the wording of the second subparagraph of Article 32(2) of Directive 2014/24, in accordance with which the procedures for the awarding of contracts based on a framework agreement may be applied only between, on the one hand, those contracting authorities specifically identified for this purpose in the invitation to tender or in the invitation to confirm interest and, on the other hand, those economic operators party to the framework agreement as concluded.

| 55 | It follows from the findings above that the purpose of the second subparagraph of Article 32(2) of Directive 2004/18 is to allow a contracting authority to give other contracting authorities access to a framework agreement that it is proposing to conclude with the economic operators who will be original parties thereto. |
| --- | --- |

55

It follows from the findings above that the purpose of the second subparagraph of Article 32(2) of Directive 2004/18 is to allow a contracting authority to give other contracting authorities access to a framework agreement that it is proposing to conclude with the economic operators who will be original parties thereto.

| 56 | It is not, therefore, a requirement of the second subparagraph of Article 32(2) of Directive 2004/18 that a ‘secondary’ contracting authority, such as the ASST of Valcamonica in the main proceedings, be a signatory to the framework agreement in order for it to be able to award a subsequent contract at a later date. It is sufficient that such a contracting authority appear as a potential beneficiary of that framework agreement from the date on which it is concluded by being clearly identified in the tender documents with an explicit reference that makes both the ‘secondary’ contracting authority itself and any interested operator aware of that possibility. That reference can appear either in the framework agreement itself or in another document, such as an extension clause in the tender specifications, as long as the requirements as to advertising and legal certainty and, consequently, those relating to transparency are complied with. |
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56

It is not, therefore, a requirement of the second subparagraph of Article 32(2) of Directive 2004/18 that a ‘secondary’ contracting authority, such as the ASST of Valcamonica in the main proceedings, be a signatory to the framework agreement in order for it to be able to award a subsequent contract at a later date. It is sufficient that such a contracting authority appear as a potential beneficiary of that framework agreement from the date on which it is concluded by being clearly identified in the tender documents with an explicit reference that makes both the ‘secondary’ contracting authority itself and any interested operator aware of that possibility. That reference can appear either in the framework agreement itself or in another document, such as an extension clause in the tender specifications, as long as the requirements as to advertising and legal certainty and, consequently, those relating to transparency are complied with.

Whether it is possible for contracting authorities that are not signatories to a framework agreement to refrain from determining the quantity of services that may be required when they conclude subsequent contracts or to determine that quantity by reference to their usual requirements

Whether it is possible for contracting authorities that are not signatories to a framework agreement to refrain from determining the quantity of services that may be required when they conclude subsequent contracts or to determine that quantity by reference to their usual requirements

| 57 | It is apparent from Article 1(5) of Directive 2004/18 that the purpose of a framework agreement is to establish the terms governing contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantities envisaged. |
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57

It is apparent from Article 1(5) of Directive 2004/18 that the purpose of a framework agreement is to establish the terms governing contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantities envisaged.

| 58 | Indeed, it could be inferred from the adverbial phrase ‘where appropriate’ that an indication of the quantity of the services which the framework agreement covers is merely optional. |
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58

Indeed, it could be inferred from the adverbial phrase ‘where appropriate’ that an indication of the quantity of the services which the framework agreement covers is merely optional.

| 59 | That interpretation cannot, however, be accepted. |
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59

That interpretation cannot, however, be accepted.

| 60 | First, it follows from some of the other provisions of Directive 2004/18 that a framework agreement must, at the outset, determine the maximum volume of supplies or services that may form the subject of subsequent contracts. In particular, Article 9(9) of that directive, which sets out, inter alia, the methods for calculating the estimated value of framework agreements, provides that the value to be taken into consideration is the maximum estimated value net of VAT of all the contracts envisaged for the total term of that agreement. Paragraph 6(c), headed ‘Public service contracts’, under the heading ‘Contract Notices’ in Annex VII A to Directive 2004/18 also requires that the contract notice relating to such an agreement specify the estimated total value of the services for the entire duration of the framework agreement and, as far as possible, the value and the frequency of the contracts to be awarded. As the Commission submits, in essence, and as the Advocate General noted in point 78 of his Opinion, although the contracting authority that is an original party to the framework agreement is subject only to a requirement to use best endeavours with regard to the value and frequency of each of the subsequent contracts to be awarded, it is nevertheless imperative that that authority state the total quantity which the subsequent contracts may comprise. |
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60

First, it follows from some of the other provisions of Directive 2004/18 that a framework agreement must, at the outset, determine the maximum volume of supplies or services that may form the subject of subsequent contracts. In particular, Article 9(9) of that directive, which sets out, inter alia, the methods for calculating the estimated value of framework agreements, provides that the value to be taken into consideration is the maximum estimated value net of VAT of all the contracts envisaged for the total term of that agreement. Paragraph 6(c), headed ‘Public service contracts’, under the heading ‘Contract Notices’ in Annex VII A to Directive 2004/18 also requires that the contract notice relating to such an agreement specify the estimated total value of the services for the entire duration of the framework agreement and, as far as possible, the value and the frequency of the contracts to be awarded. As the Commission submits, in essence, and as the Advocate General noted in point 78 of his Opinion, although the contracting authority that is an original party to the framework agreement is subject only to a requirement to use best endeavours with regard to the value and frequency of each of the subsequent contracts to be awarded, it is nevertheless imperative that that authority state the total quantity which the subsequent contracts may comprise.

| 61 | Second, under Article 32(3) of Directive 2004/18, where a framework agreement is concluded with a single economic operator, contracts based on that agreement must be awarded within the limits of the terms laid down in the agreement. It follows that the contracting authority that is an original party to the framework agreement can make commitments on its own behalf or on behalf of the potential contracting authorities that are specifically indicated in that agreement only up to a certain quantity and once that limit has been reached the agreement will no longer have any effect. |
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61

Second, under Article 32(3) of Directive 2004/18, where a framework agreement is concluded with a single economic operator, contracts based on that agreement must be awarded within the limits of the terms laid down in the agreement. It follows that the contracting authority that is an original party to the framework agreement can make commitments on its own behalf or on behalf of the potential contracting authorities that are specifically indicated in that agreement only up to a certain quantity and once that limit has been reached the agreement will no longer have any effect.

| 62 | Third, that interpretation ensures that the fundamental principles governing the awarding of public contracts, which apply to the conclusion of framework agreements in accordance with the first subparagraph of Article 32(2) of Directive 2004/18, are observed. Generally, a framework agreement falls within the concept of public procurement to the extent that it turns into a whole the various specific contracts that it governs (see, to that effect, judgments of 4 May 1995, Commission v Greece, C‐79/94, EU:C:1995:120, paragraph 15; of 29 November 2007, Commission v Italy, C‐119/06, not published, EU:C:2007:729, paragraph 43; and of 11 December 2014, Azienda sanitaria locale n. 5 Spezzino and Others, C‐113/13, EU:C:2014:2440, paragraph 36). |
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62

Third, that interpretation ensures that the fundamental principles governing the awarding of public contracts, which apply to the conclusion of framework agreements in accordance with the first subparagraph of Article 32(2) of Directive 2004/18, are observed. Generally, a framework agreement falls within the concept of public procurement to the extent that it turns into a whole the various specific contracts that it governs (see, to that effect, judgments of 4 May 1995, Commission v Greece, C‐79/94, EU:C:1995:120, paragraph 15; of 29 November 2007, Commission v Italy, C‐119/06, not published, EU:C:2007:729, paragraph 43; and of 11 December 2014, Azienda sanitaria locale n. 5 Spezzino and Others, C‐113/13, EU:C:2014:2440, paragraph 36).

| 63 | Not only the principles of equal treatment and non-discrimination, but also the principle of transparency that stems from them (see, to that effect, judgment of 17 December 2015, UNIS and Beaudout Père et Fils, C‐25/14 and C‐26/14, EU:C:2015:821, paragraph 38) imply that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or tender specifications so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, second, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the contract in question (see, to that effect, judgment of 13 July 2017, INGSTEEL and Metrostav, C‐76/16, EU:C:2017:549, paragraph 34). |
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63

Not only the principles of equal treatment and non-discrimination, but also the principle of transparency that stems from them (see, to that effect, judgment of 17 December 2015, UNIS and Beaudout Père et Fils, C‐25/14 and C‐26/14, EU:C:2015:821, paragraph 38) imply that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or tender specifications so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, second, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the contract in question (see, to that effect, judgment of 13 July 2017, INGSTEEL and Metrostav, C‐76/16, EU:C:2017:549, paragraph 34).

| 64 | The principles of transparency and equal treatment of economic operators with an interest in the conclusion of a framework agreement, as established, inter alia, by Article 2 of Directive 2004/18, would be affected if the contracting authority that is an original party to the framework agreement did not set out the total quantity which such an agreement covers. |
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64

The principles of transparency and equal treatment of economic operators with an interest in the conclusion of a framework agreement, as established, inter alia, by Article 2 of Directive 2004/18, would be affected if the contracting authority that is an original party to the framework agreement did not set out the total quantity which such an agreement covers.

| 65 | The obligation of transparency is particularly important in the context of a subsequent contract, given that, in accordance with the second subparagraph of Article 35(4) of Directive 2004/18, contracting authorities are not bound to send a notice of the results of the award procedure for each contract based on the framework agreement. |
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65

The obligation of transparency is particularly important in the context of a subsequent contract, given that, in accordance with the second subparagraph of Article 35(4) of Directive 2004/18, contracting authorities are not bound to send a notice of the results of the award procedure for each contract based on the framework agreement.

| 66 | Further, if the contracting authority that was an original party to the framework agreement were not obliged to indicate at the outset the quantity and maximum amount of services that will be covered by that agreement, the conclusion of the agreement could be used to divide a contract up artificially so that it remains below the thresholds laid down by Directive 2004/18, which is prohibited by Article 9(3) of that directive. |
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66

Further, if the contracting authority that was an original party to the framework agreement were not obliged to indicate at the outset the quantity and maximum amount of services that will be covered by that agreement, the conclusion of the agreement could be used to divide a contract up artificially so that it remains below the thresholds laid down by Directive 2004/18, which is prohibited by Article 9(3) of that directive.

| 67 | Additionally, even if it could be assumed that a reference to the usual requirements of contracting authorities specifically indicated in the framework agreement may prove to be sufficiently explicit for national economic operators, it cannot be assumed that the same can necessarily be said for an economic operator established in another Member State. |
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67

Additionally, even if it could be assumed that a reference to the usual requirements of contracting authorities specifically indicated in the framework agreement may prove to be sufficiently explicit for national economic operators, it cannot be assumed that the same can necessarily be said for an economic operator established in another Member State.

| 68 | Finally, if the total quantity of services that those usual requirements represents is common knowledge, it should not be difficult to refer to it in the framework agreement itself or in another published document, such as the tender specifications, and, by doing so, ensure full observance of the principles of transparency and equal treatment. |
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68

Finally, if the total quantity of services that those usual requirements represents is common knowledge, it should not be difficult to refer to it in the framework agreement itself or in another published document, such as the tender specifications, and, by doing so, ensure full observance of the principles of transparency and equal treatment.

| 69 | Fourth, a requirement that the contracting authority that is an original party to the framework agreement indicate therein the quantity and amount of the services that that agreement will cover is a manifestation of the prohibition on using framework agreements improperly or in such a way as to prevent, restrict or distort competition, as laid down in the fifth subparagraph of Article 32(2) of Directive 2004/18. |
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69

Fourth, a requirement that the contracting authority that is an original party to the framework agreement indicate therein the quantity and amount of the services that that agreement will cover is a manifestation of the prohibition on using framework agreements improperly or in such a way as to prevent, restrict or distort competition, as laid down in the fifth subparagraph of Article 32(2) of Directive 2004/18.

| 70 | Therefore, the reply to the questions referred is that Article 1(5) and the fourth subparagraph of Article 32(2) of Directive 2014/18 must be interpreted as meaning that:





  – | a contracting authority may act on its own behalf and on behalf of other contracting authorities that are specifically indicated but are not direct parties to a framework agreement, provided that the requirements as to advertising and legal certainty and, consequently, those relating to transparency are complied with; and |
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70

Therefore, the reply to the questions referred is that Article 1(5) and the fourth subparagraph of Article 32(2) of Directive 2014/18 must be interpreted as meaning that:

–

a contracting authority may act on its own behalf and on behalf of other contracting authorities that are specifically indicated but are not direct parties to a framework agreement, provided that the requirements as to advertising and legal certainty and, consequently, those relating to transparency are complied with; and

| – | it cannot be accepted that contracting authorities that are not signatories to the framework agreement refrain from determining the quantity of services that may be required when they conclude contracts pursuant to the framework agreement or determine that quantity by reference to their usual requirements, because, if they do so, the principles of transparency and equal treatment of economic operators with an interest in the conclusion of that framework contract will be infringed. |
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–

it cannot be accepted that contracting authorities that are not signatories to the framework agreement refrain from determining the quantity of services that may be required when they conclude contracts pursuant to the framework agreement or determine that quantity by reference to their usual requirements, because, if they do so, the principles of transparency and equal treatment of economic operators with an interest in the conclusion of that framework contract will be infringed.

Costs

Costs

| 71 | 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. |
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71

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

| | Article 1(5) and the fourth subparagraph of Article 32(2) 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 must be interpreted as meaning that: |
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Article 1(5) and the fourth subparagraph of Article 32(2) 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 must be interpreted as meaning that:

Article 1(5) and the fourth subparagraph of Article 32(2) 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 must be interpreted as meaning that:

–

a contracting authority may act on its own behalf and on behalf of other contracting authorities that are specifically indicated but are not direct parties to a framework agreement, provided that the requirements as to advertising and legal certainty and, consequently, those relating to transparency are complied with; and

a contracting authority may act on its own behalf and on behalf of other contracting authorities that are specifically indicated but are not direct parties to a framework agreement, provided that the requirements as to advertising and legal certainty and, consequently, those relating to transparency are complied with; and

| – | it cannot be accepted that contracting authorities that are not signatories to the framework agreement refrain from determining the quantity of services that may be required when they conclude contracts pursuant to the framework agreement or determine that quantity by reference to their usual requirements, because, if they do so, the principles of transparency and equal treatment of economic operators with an interest in the conclusion of that framework contract will be infringed. |
| --- | --- |

–

it cannot be accepted that contracting authorities that are not signatories to the framework agreement refrain from determining the quantity of services that may be required when they conclude contracts pursuant to the framework agreement or determine that quantity by reference to their usual requirements, because, if they do so, the principles of transparency and equal treatment of economic operators with an interest in the conclusion of that framework contract will be infringed.

it cannot be accepted that contracting authorities that are not signatories to the framework agreement refrain from determining the quantity of services that may be required when they conclude contracts pursuant to the framework agreement or determine that quantity by reference to their usual requirements, because, if they do so, the principles of transparency and equal treatment of economic operators with an interest in the conclusion of that framework contract will be infringed.

| | [Signatures] |
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[Signatures]

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  *1
  )	Language of the case: Italian.

*1