# 62019CO0835

ORDER OF THE COURT (Ninth Chamber)

26 November 2020 (
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(Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Award of concession contracts – Directive 2014/23/EU – Article 2(1), first subparagraph – Article 30 – Freedom of contracting authorities to establish and organise the procedure leading to the choice of concessionaire – National legislation prohibiting the use of project financing for motorway concessions)

In Case C‐835/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Council of State, Italy), made by decision of 13 June 2019, received at the Court on 18 November 2019, in the proceedings

Autostrada Torino Ivrea Valle D’Aosta – Ativa SpA

Autostrada Torino Ivrea Valle D’Aosta – Ativa SpA

v

Presidenza del Consiglio dei Ministri,

Presidenza del Consiglio dei Ministri,

Ministero delle Infrastrutture e dei Trasporti,

Ministero delle Infrastrutture e dei Trasporti,

Ministero dell’Economia e delle Finanze,

Ministero dell’Economia e delle Finanze,

Autorità di regolazione dei trasporti,

Autorità di regolazione dei trasporti,

intervening parties:

Autorità di bacino del Po,

Autorità di bacino del Po,

Regione Piemonte,

Regione Piemonte,

THE COURT (Ninth Chamber),

composed of D. Šváby (Rapporteur), acting as President of the Chamber, S. Rodin and K. Jürimäe, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to give a decision by reasoned order, in accordance with Article 99 of the Rules of Procedure of the Court of Justice,

makes the following

Order

Order

| 1 | The request for a preliminary ruling concerns the interpretation of Article 30 of Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p. 1), read in conjunction with recital 68 of that directive. |
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1

The request for a preliminary ruling concerns the interpretation of Article 30 of Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p. 1), read in conjunction with recital 68 of that directive.

| 2 | The request has been made in proceedings between Autostrada Torino Ivrea Valle d’Aosta – Ativa SpA (‘Ativa’), on one hand, and, on the other, the Presidenza del Consiglio dei Ministri (Presidency of the Council of Ministers, Italy), the Ministero delle Infrastrutture e dei Trasporti (Ministry of Infrastructure and Transport, Italy) (‘the MIT’), the Ministero dell’Economia e delle Finanze (Ministry of Economy and Finance, Italy) and the Autorità di regolazione dei trasporti (Transport Administration Authority, Italy), relating to the MIT’s rejection of two project financing proposals submitted by Ativa. |
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2

The request has been made in proceedings between Autostrada Torino Ivrea Valle d’Aosta – Ativa SpA (‘Ativa’), on one hand, and, on the other, the Presidenza del Consiglio dei Ministri (Presidency of the Council of Ministers, Italy), the Ministero delle Infrastrutture e dei Trasporti (Ministry of Infrastructure and Transport, Italy) (‘the MIT’), the Ministero dell’Economia e delle Finanze (Ministry of Economy and Finance, Italy) and the Autorità di regolazione dei trasporti (Transport Administration Authority, Italy), relating to the MIT’s rejection of two project financing proposals submitted by Ativa.

Legal framework

Legal framework

European Union law

European Union law

| 3 | Recitals 5, 8, and 68 of Directive 2014/23 state as follows:





  ‘(5) | This Directive recognises and reaffirms the right of Member States and public authorities to decide the means of administration they judge to be most appropriate for performing works and providing services. In particular, this Directive should not in any way affect the freedom of Member States and public authorities to perform works or provide services directly to the public or to outsource such provision by delegating it to third parties. Member States or public authorities should remain free to define and specify the characteristics of the services to be provided, including any conditions regarding the quality or price of the services, in accordance with Union law, in order to pursue their public policy objectives. |
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3

Recitals 5, 8, and 68 of Directive 2014/23 state as follows:

‘(5)

This Directive recognises and reaffirms the right of Member States and public authorities to decide the means of administration they judge to be most appropriate for performing works and providing services. In particular, this Directive should not in any way affect the freedom of Member States and public authorities to perform works or provide services directly to the public or to outsource such provision by delegating it to third parties. Member States or public authorities should remain free to define and specify the characteristics of the services to be provided, including any conditions regarding the quality or price of the services, in accordance with Union law, in order to pursue their public policy objectives.

...

| (8) | For concessions equal to or above a certain value, it is appropriate to provide for a minimum coordination of national procedures for the award of such contracts based on the principles of the TFEU so as to guarantee the opening-up of concessions to competition and adequate legal certainty. Those coordinating provisions should not go beyond what is necessary in order to achieve the aforementioned objectives and to ensure a certain degree of flexibility. Member States should be allowed to complete and develop further those provisions if they find it appropriate, in particular to better ensure compliance with the principles set out above. |
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(8)

For concessions equal to or above a certain value, it is appropriate to provide for a minimum coordination of national procedures for the award of such contracts based on the principles of the TFEU so as to guarantee the opening-up of concessions to competition and adequate legal certainty. Those coordinating provisions should not go beyond what is necessary in order to achieve the aforementioned objectives and to ensure a certain degree of flexibility. Member States should be allowed to complete and develop further those provisions if they find it appropriate, in particular to better ensure compliance with the principles set out above.

...

| (68) | Concessions are usually long-term, complex arrangements where the concessionaire assumes responsibilities and risks traditionally borne by the contracting authorities and contracting entities and normally falling within their remit. For that reason, subject to compliance with this Directive and with the principles of transparency and equal treatment, contracting authorities and contracting entities should be allowed considerable flexibility to define and organise the procedure leading to the choice of concessionaire. However, in order to ensure equal treatment and transparency throughout the awarding process, it is appropriate to provide for basic guarantees as to the awarding process, including information on the nature and scope of the concession, limitation of the number of candidates, the dissemination of information to candidates and tenderers and the availability of appropriate records. It is also necessary to provide that the initial terms of the concession notice should not be deviated from, in order to prevent unfair treatment of any potential candidates.’ |
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(68)

Concessions are usually long-term, complex arrangements where the concessionaire assumes responsibilities and risks traditionally borne by the contracting authorities and contracting entities and normally falling within their remit. For that reason, subject to compliance with this Directive and with the principles of transparency and equal treatment, contracting authorities and contracting entities should be allowed considerable flexibility to define and organise the procedure leading to the choice of concessionaire. However, in order to ensure equal treatment and transparency throughout the awarding process, it is appropriate to provide for basic guarantees as to the awarding process, including information on the nature and scope of the concession, limitation of the number of candidates, the dissemination of information to candidates and tenderers and the availability of appropriate records. It is also necessary to provide that the initial terms of the concession notice should not be deviated from, in order to prevent unfair treatment of any potential candidates.’

| 4 | Article 1 of that directive, entitled ‘Subject matter and scope’, provides, in paragraph 1:
  ‘This Directive establishes rules on the procedures for procurement by contracting authorities and contracting entities by means of a concession, whose value is estimated to be not less than the threshold laid down in Article 8.’ |
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4

Article 1 of that directive, entitled ‘Subject matter and scope’, provides, in paragraph 1:

‘This Directive establishes rules on the procedures for procurement by contracting authorities and contracting entities by means of a concession, whose value is estimated to be not less than the threshold laid down in Article 8.’

| 5 | Article 2 of that directive, entitled ‘Principle of free administration by public authorities’, provides, in paragraph 1:
  ‘This Directive recognises the principle of free administration by national, regional and local authorities in conformity with national and Union law. Those authorities are free to decide how best to manage the execution of works or the provision of services, to ensure in particular a high level of quality, safety and affordability, equal treatment and the promotion of universal access and of user rights in public services.
  ...’ |
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5

Article 2 of that directive, entitled ‘Principle of free administration by public authorities’, provides, in paragraph 1:

‘This Directive recognises the principle of free administration by national, regional and local authorities in conformity with national and Union law. Those authorities are free to decide how best to manage the execution of works or the provision of services, to ensure in particular a high level of quality, safety and affordability, equal treatment and the promotion of universal access and of user rights in public services.

...’

| 6 | According to Article 3 of that directive, which is entitled ‘Principle of equal treatment, non-discrimination and transparency’:
  ‘1.   Contracting authorities and contracting entities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.
  The design of the concession award procedure, including the estimate of the value, shall not be made with the intention of excluding it from the scope of this Directive or of unduly favouring or disadvantaging certain economic operators or certain works, supplies or services.
  2.   Contracting authorities and contracting entities shall aim at ensuring the transparency of the award procedure and of the performance of the contract, while complying with Article 28.’ |
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6

According to Article 3 of that directive, which is entitled ‘Principle of equal treatment, non-discrimination and transparency’:

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

The design of the concession award procedure, including the estimate of the value, shall not be made with the intention of excluding it from the scope of this Directive or of unduly favouring or disadvantaging certain economic operators or certain works, supplies or services.

2.   Contracting authorities and contracting entities shall aim at ensuring the transparency of the award procedure and of the performance of the contract, while complying with Article 28.’

| 7 | Article 8 of that directive, entitled ‘Threshold and methods for calculating the estimated value of concessions’, provides, in paragraph 1:
  ‘This Directive shall apply to concessions the value of which is equal to or greater than EUR 5186000.’ |
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7

Article 8 of that directive, entitled ‘Threshold and methods for calculating the estimated value of concessions’, provides, in paragraph 1:

‘This Directive shall apply to concessions the value of which is equal to or greater than EUR 5186000.’

| 8 | Title II of Directive 2014/23, which sets out the general principles and procedural guarantees for the award of concessions, contains Articles 30 to 41. |
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8

Title II of Directive 2014/23, which sets out the general principles and procedural guarantees for the award of concessions, contains Articles 30 to 41.

| 9 | Under the title ‘General principles’, Article 30 of that directive provides, in paragraphs 1 and 2:
  ‘1.   The contracting authority or contracting entity shall have the freedom to organise the procedure leading to the choice of concessionaire subject to compliance with this Directive.
  2.   The design of the concession award procedure shall respect the principles laid down in Article 3. In particular during the concession award procedure, the contracting authority or contracting entity shall not provide information in a discriminatory manner which may give some candidates or tenderers an advantage over others.’ |
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9

Under the title ‘General principles’, Article 30 of that directive provides, in paragraphs 1 and 2:

‘1.   The contracting authority or contracting entity shall have the freedom to organise the procedure leading to the choice of concessionaire subject to compliance with this Directive.

2.   The design of the concession award procedure shall respect the principles laid down in Article 3. In particular during the concession award procedure, the contracting authority or contracting entity shall not provide information in a discriminatory manner which may give some candidates or tenderers an advantage over others.’

| 10 | Article 37 of that directive, entitled ‘Procedural guarantees’, states, in paragraph 6:
  ‘The contracting authority or contracting entity may hold negotiations with candidates and tenderers. The subject matter of the concession, the award criteria and the minimum requirements shall not be changed during the course of the negotiations.’ |
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10

Article 37 of that directive, entitled ‘Procedural guarantees’, states, in paragraph 6:

‘The contracting authority or contracting entity may hold negotiations with candidates and tenderers. The subject matter of the concession, the award criteria and the minimum requirements shall not be changed during the course of the negotiations.’

Italian law

Italian law

Law No 11 of 28 January 2016

Law No 11 of 28 January 2016

| 11 | Under Article 1(1)(lll) of legge n. 11 – Deleghe al Governo per l’attuazione delle direttive 2014/23/UE, 2014/24/UE e 2014/25/UE del Parlamento europeo e del Consiglio, del 26 febbraio 2014, sull’aggiudicazione dei contratti di concessione, sugli appalti pubblici e sulle procedure d’appalto degli enti erogatori nei settori dell’acqua, dell’energia, dei trasporti e dei servizi postali, nonché per il riordino della disciplina vigente in materia di contratti pubblici relativi a lavori, servizi e forniture (Law No 11, delegating to the Government the transposition of directives 2014/23/EU, 2014/24/EU and 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts, on public procurement and procurement procedures of entities operating in the water, energy, transport and postal services sectors, and recasting the provisions applicable to public works contracts, public services contracts and public supply contracts) of 28 January 2016 (GURI No 23 of 29 January 2016), the delegated legislature was required to lay down the rules governing ‘the commencement of tendering procedures for the award of new motorway concessions no later than 24 months before expiry of the existing concessions, with a review of the system for motorway concessions, concerning in particular the introduction of a prohibition on extension clauses and provisions, in accordance with the new general regime for concession contracts’. |
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11

Under Article 1(1)(lll) of legge n. 11 – Deleghe al Governo per l’attuazione delle direttive 2014/23/UE, 2014/24/UE e 2014/25/UE del Parlamento europeo e del Consiglio, del 26 febbraio 2014, sull’aggiudicazione dei contratti di concessione, sugli appalti pubblici e sulle procedure d’appalto degli enti erogatori nei settori dell’acqua, dell’energia, dei trasporti e dei servizi postali, nonché per il riordino della disciplina vigente in materia di contratti pubblici relativi a lavori, servizi e forniture (Law No 11, delegating to the Government the transposition of directives 2014/23/EU, 2014/24/EU and 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts, on public procurement and procurement procedures of entities operating in the water, energy, transport and postal services sectors, and recasting the provisions applicable to public works contracts, public services contracts and public supply contracts) of 28 January 2016 (GURI No 23 of 29 January 2016), the delegated legislature was required to lay down the rules governing ‘the commencement of tendering procedures for the award of new motorway concessions no later than 24 months before expiry of the existing concessions, with a review of the system for motorway concessions, concerning in particular the introduction of a prohibition on extension clauses and provisions, in accordance with the new general regime for concession contracts’.

| 12 | According to Article 1(1)(mmm) of that law, the delegated legislature was to establish ‘specific transitional provisions for awarding motorway concessions which have expired or are due to expire on the date on which the decree transposing the directives enters into force, in order to ensure full compliance with the principle of competitive tendering and, for concessions where the contracting authority or contracting entity exercises over the concessionaire a control which is similar to that which it exercises over its own departments, with the principles enshrined in Article 17 of [Directive 2014/23]’. |
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12

According to Article 1(1)(mmm) of that law, the delegated legislature was to establish ‘specific transitional provisions for awarding motorway concessions which have expired or are due to expire on the date on which the decree transposing the directives enters into force, in order to ensure full compliance with the principle of competitive tendering and, for concessions where the contracting authority or contracting entity exercises over the concessionaire a control which is similar to that which it exercises over its own departments, with the principles enshrined in Article 17 of [Directive 2014/23]’.

The new Public Procurement Code

The new Public Procurement Code

| 13 | It is apparent from Article 180 of decreto legislativo n. 50 – Codice dei contratti pubblici (Legislative Decree No 50 laying down a public procurement code) of 18 April 2016 (GURI No 91 of 19 April 2016) (‘the new Public Procurement Code’) that public-private partnership contracts include, inter alia, project financing. |
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13

It is apparent from Article 180 of decreto legislativo n. 50 – Codice dei contratti pubblici (Legislative Decree No 50 laying down a public procurement code) of 18 April 2016 (GURI No 91 of 19 April 2016) (‘the new Public Procurement Code’) that public-private partnership contracts include, inter alia, project financing.

| 14 | According to Article 183 of that code, entitled ‘Project financing’:
  ‘1.   In relation to public works or works in the public interest, including works concerning structures intended for leisure boating, included in the programming instruments officially adopted by the contracting authority under the legislation in force, including port plans, which can be fully or partly financed by private capital, contracting authorities may, instead of awarding contracts by means of a concession under Part III, award a concession by means of a tender procedure on the basis of the feasibility project, by publishing a contract notice calling for the submission of tenders envisaging the use of resources provided in full or in part by the persons submitting proposals. In any event, for infrastructure relating to track work, the corresponding proposals must be included in the programming instruments adopted by the Ministry of Infrastructure and Transport.
  2.   The contract notice shall be published in accordance with the procedures laid down in Article 72 or Article 36(9), depending on the value of the works, and the tender procedure shall be based on the feasibility project prepared by the contracting authority. The feasibility project on which the tender procedure is based shall be prepared by personnel of the contracting authority who personally meet the requirements necessary for preparation of that project, belonging to the various professions involved in the multidisciplinary approach that informs the feasibility project. Where there are insufficient adequately skilled personnel, the contracting authorities may engage third parties, chosen in accordance with the procedures laid down by this code, to draft the feasibility project. The costs incurred in outsourcing activities to third parties may be included in the economic scope of the work.
  ...
  15.   Economic operators may submit proposals to the contracting authorities to perform, on the basis of a concession, public works or works in the public interest, including works concerning structures intended for leisure boating, that are not included in the programming instruments officially adopted by the contracting authority under the legislation in force. The proposal shall contain a feasibility project, a draft agreement, the economic and financial plan certified by one of the entities referred to in the first sentence of Article 183(9) and the service and management specifications. In the case of structures for leisure boating, the feasibility project must describe the qualitative and functional characteristics of the work and the scope of the requirements to be satisfied and the specific services to be provided, must contain a study including a description of the project and the data necessary to determine and assess the principal effects that the project may have on the environment, and must be supplemented in accordance with any specific requests by the Ministry of Infrastructure and Transport, adopted by means of decrees of that ministry. The economic and financial plan shall include the amount of expenditure incurred in preparing the proposal, including royalties in respect of intellectual works under Article 2578 of the Civil Code. The proposal shall be accompanied by declarations on honour relating to compliance with the conditions referred to in Article 183(17), the surety referred to in Article 93 and the undertaking to provide surety for the amount indicated in the third sentence of Article 183(9) in the event of a call for competition. The contracting authority shall assess the feasibility of the proposal within a strict time limit of three months. The contracting authority may for that purpose invite the person submitting the proposal to make any changes to the feasibility project necessary for it to be approved. If the person submitting the proposal does not include the requested modifications, the proposal may not be evaluated as feasible. The feasibility project, modified if applicable, shall be included in the programming instruments adopted by the contracting authority under the legislation in force and shall be approved in accordance with the procedures applicable to the approval of projects. The person submitting the proposal must include any further modifications requested at the project approval stage, and the project shall otherwise be deemed not to have been approved. The approved feasibility project shall serve as the basis for the tender procedure, in which the person submitting the proposal shall be invited to participate. In the contract notice, the contracting authority may ask participants, including the person making the proposal, to submit alternative scenarios for the project. The contract notice shall indicate that the promoter may exercise its pre-emptive right. The participants, including the promoter, must satisfy the requirements laid down in Article 183(8) and shall submit a bid containing a draft agreement, the economic and financial plan certified by one of the entities referred to in the first sentence of Article 183(9), the service and management specifications and any alternative scenario for the feasibility project. Article 183(4), (5), (6), (7) and (13) shall apply. If the promoter is not awarded the contract, it may, within 15 days from notification of the award, exercise its pre-emptive right and be awarded the contract if it undertakes to comply with the contractual obligations on the same terms as those proposed by the successful bidder. If the promoter is not awarded the contract and does not exercise its pre-emptive right it will be entitled to be reimbursed, by the successful bidder, the amount of the expenditure incurred in preparing the proposal up to the limits referred to in Article 183(9). If the promoter exercises its pre-emptive right, the initial successful bidder will be entitled to be reimbursed, by the promoter, the amount of the expenditure incurred in preparing its bid up to the limits referred to in Article 183(9).
  16.   The proposals referred to in the first sentence of Article 183(15) may relate to all procurement on a public-private partnership basis instead of to concessions.
  ...’ |
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14

According to Article 183 of that code, entitled ‘Project financing’:

‘1.   In relation to public works or works in the public interest, including works concerning structures intended for leisure boating, included in the programming instruments officially adopted by the contracting authority under the legislation in force, including port plans, which can be fully or partly financed by private capital, contracting authorities may, instead of awarding contracts by means of a concession under Part III, award a concession by means of a tender procedure on the basis of the feasibility project, by publishing a contract notice calling for the submission of tenders envisaging the use of resources provided in full or in part by the persons submitting proposals. In any event, for infrastructure relating to track work, the corresponding proposals must be included in the programming instruments adopted by the Ministry of Infrastructure and Transport.

2.   The contract notice shall be published in accordance with the procedures laid down in Article 72 or Article 36(9), depending on the value of the works, and the tender procedure shall be based on the feasibility project prepared by the contracting authority. The feasibility project on which the tender procedure is based shall be prepared by personnel of the contracting authority who personally meet the requirements necessary for preparation of that project, belonging to the various professions involved in the multidisciplinary approach that informs the feasibility project. Where there are insufficient adequately skilled personnel, the contracting authorities may engage third parties, chosen in accordance with the procedures laid down by this code, to draft the feasibility project. The costs incurred in outsourcing activities to third parties may be included in the economic scope of the work.

...

15.   Economic operators may submit proposals to the contracting authorities to perform, on the basis of a concession, public works or works in the public interest, including works concerning structures intended for leisure boating, that are not included in the programming instruments officially adopted by the contracting authority under the legislation in force. The proposal shall contain a feasibility project, a draft agreement, the economic and financial plan certified by one of the entities referred to in the first sentence of Article 183(9) and the service and management specifications. In the case of structures for leisure boating, the feasibility project must describe the qualitative and functional characteristics of the work and the scope of the requirements to be satisfied and the specific services to be provided, must contain a study including a description of the project and the data necessary to determine and assess the principal effects that the project may have on the environment, and must be supplemented in accordance with any specific requests by the Ministry of Infrastructure and Transport, adopted by means of decrees of that ministry. The economic and financial plan shall include the amount of expenditure incurred in preparing the proposal, including royalties in respect of intellectual works under Article 2578 of the Civil Code. The proposal shall be accompanied by declarations on honour relating to compliance with the conditions referred to in Article 183(17), the surety referred to in Article 93 and the undertaking to provide surety for the amount indicated in the third sentence of Article 183(9) in the event of a call for competition. The contracting authority shall assess the feasibility of the proposal within a strict time limit of three months. The contracting authority may for that purpose invite the person submitting the proposal to make any changes to the feasibility project necessary for it to be approved. If the person submitting the proposal does not include the requested modifications, the proposal may not be evaluated as feasible. The feasibility project, modified if applicable, shall be included in the programming instruments adopted by the contracting authority under the legislation in force and shall be approved in accordance with the procedures applicable to the approval of projects. The person submitting the proposal must include any further modifications requested at the project approval stage, and the project shall otherwise be deemed not to have been approved. The approved feasibility project shall serve as the basis for the tender procedure, in which the person submitting the proposal shall be invited to participate. In the contract notice, the contracting authority may ask participants, including the person making the proposal, to submit alternative scenarios for the project. The contract notice shall indicate that the promoter may exercise its pre-emptive right. The participants, including the promoter, must satisfy the requirements laid down in Article 183(8) and shall submit a bid containing a draft agreement, the economic and financial plan certified by one of the entities referred to in the first sentence of Article 183(9), the service and management specifications and any alternative scenario for the feasibility project. Article 183(4), (5), (6), (7) and (13) shall apply. If the promoter is not awarded the contract, it may, within 15 days from notification of the award, exercise its pre-emptive right and be awarded the contract if it undertakes to comply with the contractual obligations on the same terms as those proposed by the successful bidder. If the promoter is not awarded the contract and does not exercise its pre-emptive right it will be entitled to be reimbursed, by the successful bidder, the amount of the expenditure incurred in preparing the proposal up to the limits referred to in Article 183(9). If the promoter exercises its pre-emptive right, the initial successful bidder will be entitled to be reimbursed, by the promoter, the amount of the expenditure incurred in preparing its bid up to the limits referred to in Article 183(9).

16.   The proposals referred to in the first sentence of Article 183(15) may relate to all procurement on a public-private partnership basis instead of to concessions.

...’

| 15 | Article 216(1) and (23) of the new Public Procurement Code provides:
  ‘1.   Without prejudice to the provisions of this article or other provisions of this code, this code shall apply to procedures and contracts for which notices launching the procedure for the selection of a contractor are published after the date on which it enters into force, and, in the case of contracts where no notice is published, to procedures and contracts in relation to which invitations to tender have not yet been sent on the date on which this code enters into force.
  ...
  23.   Preliminary projects relating to the execution of public works or public interest works in relation to concession proposals under Article 153 or Article 175 of [decreto legislativo n. 163 – Codice dei contratti pubblici relativi a lavori, servizi e forniture in attuazione delle direttive 2004/17/CE e 2004/18/CE (Legislative Decree No 163 – Code on public works contracts, public service contracts and public supply contracts pursuant to Directives 2004/17/EC and 2004/18/EC) of 12 April 2006 (GURI No 100 of 2 May 2006)] for which a declaration of public interest has already been made but which have not yet been approved on the date of entry into force of this code shall be subject to an assessment of economic and financial feasibility and to approval by the administrative authorities in accordance with the provisions of this code. If the preliminary project is not approved the procedures launched shall be revoked, as shall the classification of any promoters, which will be entitled to be reimbursed their incurred and proven costs in creating the project on which the tender procedure was based, if those costs were mandatory in order to carry out an environmental impact and zoning study.’ |
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15

Article 216(1) and (23) of the new Public Procurement Code provides:

‘1.   Without prejudice to the provisions of this article or other provisions of this code, this code shall apply to procedures and contracts for which notices launching the procedure for the selection of a contractor are published after the date on which it enters into force, and, in the case of contracts where no notice is published, to procedures and contracts in relation to which invitations to tender have not yet been sent on the date on which this code enters into force.

...

23.   Preliminary projects relating to the execution of public works or public interest works in relation to concession proposals under Article 153 or Article 175 of [decreto legislativo n. 163 – Codice dei contratti pubblici relativi a lavori, servizi e forniture in attuazione delle direttive 2004/17/CE e 2004/18/CE (Legislative Decree No 163 – Code on public works contracts, public service contracts and public supply contracts pursuant to Directives 2004/17/EC and 2004/18/EC) of 12 April 2006 (GURI No 100 of 2 May 2006)] for which a declaration of public interest has already been made but which have not yet been approved on the date of entry into force of this code shall be subject to an assessment of economic and financial feasibility and to approval by the administrative authorities in accordance with the provisions of this code. If the preliminary project is not approved the procedures launched shall be revoked, as shall the classification of any promoters, which will be entitled to be reimbursed their incurred and proven costs in creating the project on which the tender procedure was based, if those costs were mandatory in order to carry out an environmental impact and zoning study.’

The amending decree

The amending decree

| 16 | Decreto legislativo n. 56 – Disposizioni integrative e correttive al decreto legislativo 18 aprile 2016, n. 50 (Legislative Decree No 56 supplementing and amending Legislative Decree No 50 of 18 April 2016) of 19 April 2017 (GURI No 103 of 5 May 2017) (‘the amending decree’), inter alia, inserted Article 178(8bis) in the new Public Procurement Code, which is worded as follows:
  ‘Administrative authorities may not renew motorway concessions that have expired or are due to expire using the procedures described in Article 183.’ |
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16

Decreto legislativo n. 56 – Disposizioni integrative e correttive al decreto legislativo 18 aprile 2016, n. 50 (Legislative Decree No 56 supplementing and amending Legislative Decree No 50 of 18 April 2016) of 19 April 2017 (GURI No 103 of 5 May 2017) (‘the amending decree’), inter alia, inserted Article 178(8bis) in the new Public Procurement Code, which is worded as follows:

bis

‘Administrative authorities may not renew motorway concessions that have expired or are due to expire using the procedures described in Article 183.’

The main proceedings and the question referred for a preliminary ruling

The main proceedings and the question referred for a preliminary ruling

| 17 | Ativa, a company that operates motorways on a concession basis, operated an approximately 220 km section of the A5 motorway in Piedmont (Italy) under several concessions, the most recent of which expired in 2016. |
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17

Ativa, a company that operates motorways on a concession basis, operated an approximately 220 km section of the A5 motorway in Piedmont (Italy) under several concessions, the most recent of which expired in 2016.

| 18 | On 25 September 2015, under Article 153(19) of decreto legislativo n. 163 – Codice dei contratti pubblici relativi a lavori, servizi e forniture in attuazione delle direttive 2004/17/CE e 2004/18/CE (Legislative Decree No 163 – Code on public works contracts, public service contracts and public supply contracts pursuant to Directives 2004/17/EC and 2004/18/EC) of 12 April 2006 (GURI No 100 of 2 May 2006) (‘the previous Public Procurement Code’), Ativa submitted a project financing proposal to the MIT for the concession for the operation of the A5 motorway, the A4/A5 motorway interchange, the Turin (Italy) motorway and orbital road network and the execution of works to protect the Ivrea (Italy) canal system, to reduce seismic risk and to upgrade infrastructure (‘the first proposal’). |
| --- | --- |

18

On 25 September 2015, under Article 153(19) of decreto legislativo n. 163 – Codice dei contratti pubblici relativi a lavori, servizi e forniture in attuazione delle direttive 2004/17/CE e 2004/18/CE (Legislative Decree No 163 – Code on public works contracts, public service contracts and public supply contracts pursuant to Directives 2004/17/EC and 2004/18/EC) of 12 April 2006 (GURI No 100 of 2 May 2006) (‘the previous Public Procurement Code’), Ativa submitted a project financing proposal to the MIT for the concession for the operation of the A5 motorway, the A4/A5 motorway interchange, the Turin (Italy) motorway and orbital road network and the execution of works to protect the Ivrea (Italy) canal system, to reduce seismic risk and to upgrade infrastructure (‘the first proposal’).

| 19 | By decision of 29 July 2016 (‘the first refusal decision’), the MIT rejected that proposal stating, first, that the project financing procedure was not applicable to motorway operation concessions and, secondly, that the proposal did not comply either with the requirements of the previous Public Procurement Code or with Article 178 and Article 183(15) of the new Public Procurement Code. |
| --- | --- |

19

By decision of 29 July 2016 (‘the first refusal decision’), the MIT rejected that proposal stating, first, that the project financing procedure was not applicable to motorway operation concessions and, secondly, that the proposal did not comply either with the requirements of the previous Public Procurement Code or with Article 178 and Article 183(15) of the new Public Procurement Code.

| 20 | Ativa brought an action before the Tribunale amministrativo regionale per il Piemonte (Regional Administrative Court, Piedmont, Italy), requesting the court, first, to annul the first refusal decision and, secondly, to require the MIT to give a decision on the public interest or feasibility of the first proposal. |
| --- | --- |

20

Ativa brought an action before the Tribunale amministrativo regionale per il Piemonte (Regional Administrative Court, Piedmont, Italy), requesting the court, first, to annul the first refusal decision and, secondly, to require the MIT to give a decision on the public interest or feasibility of the first proposal.

| 21 | In support of that action, Ativa argued that the MIT had breached the three-month time limit under Article 153(19) of the previous Public Procurement Code within which contracting authorities must assess the proposals submitted. It argued that its first proposal, which had been submitted in September 2015, should, first, have been assessed before the end of 2015 instead of in June 2016 when it was actually assessed, and, secondly, have been based on the previous Public Procurement Code rather than the new Public Procurement Code. |
| --- | --- |

21

In support of that action, Ativa argued that the MIT had breached the three-month time limit under Article 153(19) of the previous Public Procurement Code within which contracting authorities must assess the proposals submitted. It argued that its first proposal, which had been submitted in September 2015, should, first, have been assessed before the end of 2015 instead of in June 2016 when it was actually assessed, and, secondly, have been based on the previous Public Procurement Code rather than the new Public Procurement Code.

| 22 | On 20 September 2016, Ativa submitted a second project financing proposal to the MIT for the projects referred to in paragraph 18 of the present order, now based on Article 183(15) of the new Public Procurement Code. By decision of 22 May 2017, on grounds comparable to those of the first refusal decision, the MIT rejected the second proposal (‘the second refusal decision’). The MIT relied in particular on Article 178(8bis) of the new Public Procurement Code, inserted by the amending decree, which entered into force on 20 May 2017. According to that provision, administrative authorities could not use the project financing procedure to renew motorway concessions that had expired or were due to expire. |
| --- | --- |

22

On 20 September 2016, Ativa submitted a second project financing proposal to the MIT for the projects referred to in paragraph 18 of the present order, now based on Article 183(15) of the new Public Procurement Code. By decision of 22 May 2017, on grounds comparable to those of the first refusal decision, the MIT rejected the second proposal (‘the second refusal decision’). The MIT relied in particular on Article 178(8bis) of the new Public Procurement Code, inserted by the amending decree, which entered into force on 20 May 2017. According to that provision, administrative authorities could not use the project financing procedure to renew motorway concessions that had expired or were due to expire.

bis

| 23 | Ativa brought an action before the Tribunale amministrativo regionale per il Piemonte (Regional Administrative Court, Piedmont), seeking, inter alia, annulment of the second refusal decision. |
| --- | --- |

23

Ativa brought an action before the Tribunale amministrativo regionale per il Piemonte (Regional Administrative Court, Piedmont), seeking, inter alia, annulment of the second refusal decision.

| 24 | By two judgments of 31 August 2018, that court dismissed Ativa’s actions. |
| --- | --- |

24

By two judgments of 31 August 2018, that court dismissed Ativa’s actions.

| 25 | By its first judgment, the court found that the MIT’s breach of the three-month time limit under Article 153(19) of the previous Public Procurement Code did not of itself alone mean that the first refusal decision was unlawful. That court also dismissed the plea alleging infringement of that provision on the grounds that it required the project financing proposal to consist of a preliminary plan on the basis of which the concessionaire would be selected. The Tribunale amministrativo regionale per il Piemonte (Regional Administrative Court, Piedmont) accordingly held that a proposal like that of Ativa, which contains a final plan, is inadmissible because the final plan is only required at a later stage in the procedure. |
| --- | --- |

25

By its first judgment, the court found that the MIT’s breach of the three-month time limit under Article 153(19) of the previous Public Procurement Code did not of itself alone mean that the first refusal decision was unlawful. That court also dismissed the plea alleging infringement of that provision on the grounds that it required the project financing proposal to consist of a preliminary plan on the basis of which the concessionaire would be selected. The Tribunale amministrativo regionale per il Piemonte (Regional Administrative Court, Piedmont) accordingly held that a proposal like that of Ativa, which contains a final plan, is inadmissible because the final plan is only required at a later stage in the procedure.

| 26 | That court also held that the argument that the MIT could not base its decision on Article 183 of the new Public Procurement Code was irrelevant. Although that article had been adopted after the first proposal had been submitted, it was in force at the time the first refusal decision was adopted. |
| --- | --- |

26

That court also held that the argument that the MIT could not base its decision on Article 183 of the new Public Procurement Code was irrelevant. Although that article had been adopted after the first proposal had been submitted, it was in force at the time the first refusal decision was adopted.

| 27 | By its second judgment, that court dismissed the action against the second refusal decision on grounds similar to those set out in paragraphs 25 and 26 of the present order. In addition, according to that court, the second proposal did not comply with Article 183(15) of the new Public Procurement Code. |
| --- | --- |

27

By its second judgment, that court dismissed the action against the second refusal decision on grounds similar to those set out in paragraphs 25 and 26 of the present order. In addition, according to that court, the second proposal did not comply with Article 183(15) of the new Public Procurement Code.

| 28 | Ativa appealed against both those judgments to the Consiglio di Stato (Council of State, Italy). Ativa submits that Article 178(8bis) of the new Public Procurement Code, which prohibits the administrative authorities from renewing motorway concessions that have expired or are due to expire using the procedure under Article 183 thereof, was introduced after it had submitted both the proposals at issue in the main proceedings and that both its proposals should therefore be governed by the provisions of the previous Public Procurement Code. Further, since the MIT had not made any reference to the provisions of the amending decree, Ativa had not been given an opportunity to adduce the reasons why the newly introduced rules do not, in its view, apply to the dispute in the main proceedings, thereby infringing its right to participate in the procedure. |
| --- | --- |

28

Ativa appealed against both those judgments to the Consiglio di Stato (Council of State, Italy). Ativa submits that Article 178(8bis) of the new Public Procurement Code, which prohibits the administrative authorities from renewing motorway concessions that have expired or are due to expire using the procedure under Article 183 thereof, was introduced after it had submitted both the proposals at issue in the main proceedings and that both its proposals should therefore be governed by the provisions of the previous Public Procurement Code. Further, since the MIT had not made any reference to the provisions of the amending decree, Ativa had not been given an opportunity to adduce the reasons why the newly introduced rules do not, in its view, apply to the dispute in the main proceedings, thereby infringing its right to participate in the procedure.

bis

| 29 | The MIT is of the view, in contrast, that Article 178(8bis) of the new Public Procurement Code is applicable ratione temporis in the case in the main proceedings because that article concerns concessions ‘that have expired or are due to expire’. It argues that Article 178(8bis) also contributes to a greater opening up to competition and to avoiding further consolidation of the position of previous operators, who hold concessions that are due to expire and which were awarded without tender procedures. Moreover, it follows from the principle tempus regit actum that, subject to specific transitional provisions, each phase or act in a procedure is governed by the rules laid down by the national provisions in force on the date when that phase takes place or on the date of adoption of the act concluding the discrete phase of the procedure of which it forms part. The dispute in the main proceedings in fact concerns a preparatory phase of the tender procedure that took place after the new Public Procurement Code entered into force. |
| --- | --- |

29

The MIT is of the view, in contrast, that Article 178(8bis) of the new Public Procurement Code is applicable ratione temporis in the case in the main proceedings because that article concerns concessions ‘that have expired or are due to expire’. It argues that Article 178(8bis) also contributes to a greater opening up to competition and to avoiding further consolidation of the position of previous operators, who hold concessions that are due to expire and which were awarded without tender procedures. Moreover, it follows from the principle tempus regit actum that, subject to specific transitional provisions, each phase or act in a procedure is governed by the rules laid down by the national provisions in force on the date when that phase takes place or on the date of adoption of the act concluding the discrete phase of the procedure of which it forms part. The dispute in the main proceedings in fact concerns a preparatory phase of the tender procedure that took place after the new Public Procurement Code entered into force.

bis

ratione temporis

bis

tempus regit actum

| 30 | Further, the preliminary phase does not involve selecting the best bid on the basis of pre-established technical and financial criteria but, rather, assessing the preliminary feasibility of a project proposal and approving a project on which the tender procedure will be based. The person submitting the proposal is only classified as a ‘promoter’ and invited to submit a bid if the project is approved and the tender procedure is commenced. |
| --- | --- |

30

Further, the preliminary phase does not involve selecting the best bid on the basis of pre-established technical and financial criteria but, rather, assessing the preliminary feasibility of a project proposal and approving a project on which the tender procedure will be based. The person submitting the proposal is only classified as a ‘promoter’ and invited to submit a bid if the project is approved and the tender procedure is commenced.

| 31 | Once the project has been approved, the concession is awarded only following the tender procedure, on the basis of the criterion of the most economically advantageous tender. That phase is separate from the previous one and must be conducted in accordance with the rules on competitive tendering, subject to the promoter’s pre-emptive right under Article 183(15) of the new Public Procurement Code. |
| --- | --- |

31

Once the project has been approved, the concession is awarded only following the tender procedure, on the basis of the criterion of the most economically advantageous tender. That phase is separate from the previous one and must be conducted in accordance with the rules on competitive tendering, subject to the promoter’s pre-emptive right under Article 183(15) of the new Public Procurement Code.

| 32 | The Consiglio di Stato (Council of State), like the MIT, takes the view that according to the general principle of legality the administrative authority must comply with the law in force at the time it states its intention to hold the procedure leading to selection of the concessionaire. Accordingly, if a concession proposal submitted on the basis of the provisions of the previous law has not yet been approved at the time the new law enters into force, the administrative authority has no option, subject to applying transitional rules laid down by the legislation that has come into force during the procedure, but to approve that project and hold the tender procedure on the basis of the new rules. |
| --- | --- |

32

The Consiglio di Stato (Council of State), like the MIT, takes the view that according to the general principle of legality the administrative authority must comply with the law in force at the time it states its intention to hold the procedure leading to selection of the concessionaire. Accordingly, if a concession proposal submitted on the basis of the provisions of the previous law has not yet been approved at the time the new law enters into force, the administrative authority has no option, subject to applying transitional rules laid down by the legislation that has come into force during the procedure, but to approve that project and hold the tender procedure on the basis of the new rules.

| 33 | In relation to motorway concessions, the amending decree inserted paragraph 8bis into Article 178 of the new Public Procurement Code, prohibiting use of the project financing procedure laid down in Article 183 thereof for the renewal of motorway concessions that had expired or were due to expire. |
| --- | --- |

33

In relation to motorway concessions, the amending decree inserted paragraph 8bis into Article 178 of the new Public Procurement Code, prohibiting use of the project financing procedure laid down in Article 183 thereof for the renewal of motorway concessions that had expired or were due to expire.

bis

| 34 | Against that background, the referring court believes, first, that the second refusal decision is lawful. Article 178(8bis) of the new Public Procurement Code entered into force during the preliminary phase of the procedure and is therefore applicable to the decision that definitively concluded the procedure by rejecting the proposal of the outgoing concessionaire. |
| --- | --- |

34

Against that background, the referring court believes, first, that the second refusal decision is lawful. Article 178(8bis) of the new Public Procurement Code entered into force during the preliminary phase of the procedure and is therefore applicable to the decision that definitively concluded the procedure by rejecting the proposal of the outgoing concessionaire.

bis

| 35 | Secondly, since the first refusal decision was adopted before the amending decree entered into force, the prohibition on using project financing for a motorway concession does not apply. However, although the MIT was not entitled to rely on Article 178(8bis) of the new Public Procurement Code to reject the first proposal, the breach of that provision is of no effect. That provision in fact also precludes projects submitted by private operators and which have already been assessed as feasible from being included in the programming of the contracting authority, with the effect that Ativa has no interest in obtaining annulment of the first refusal decision. |
| --- | --- |

35

Secondly, since the first refusal decision was adopted before the amending decree entered into force, the prohibition on using project financing for a motorway concession does not apply. However, although the MIT was not entitled to rely on Article 178(8bis) of the new Public Procurement Code to reject the first proposal, the breach of that provision is of no effect. That provision in fact also precludes projects submitted by private operators and which have already been assessed as feasible from being included in the programming of the contracting authority, with the effect that Ativa has no interest in obtaining annulment of the first refusal decision.

bis

| 36 | The Consiglio di Stato (Council of State) nevertheless believes it is necessary to examine Ativa’s plea alleging that, by purely and simply prohibiting the contracting authorities from using project financing to award a concession, Article 178(8bis) of the new Public Procurement Code infringes the principle of ‘procedural freedom’ according to which the contracting authority has considerable flexibility to define and organise the procedure leading to the choice of concessionaire, which the national legislature is required to uphold by virtue of recital 68, Article 30 and Article 37(6) of Directive 2014/23. |
| --- | --- |

36

The Consiglio di Stato (Council of State) nevertheless believes it is necessary to examine Ativa’s plea alleging that, by purely and simply prohibiting the contracting authorities from using project financing to award a concession, Article 178(8bis) of the new Public Procurement Code infringes the principle of ‘procedural freedom’ according to which the contracting authority has considerable flexibility to define and organise the procedure leading to the choice of concessionaire, which the national legislature is required to uphold by virtue of recital 68, Article 30 and Article 37(6) of Directive 2014/23.

bis

| 37 | That is the context in which the Consiglio di Stato (Council of State) stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling:
  ‘With regard to the award of concessions, does [EU] law, in particular the principles laid down in Directive [2014/23], specifically freedom of choice as regards award procedures in accordance with the principles of transparency and [equal] treatment, as referred to in recital 68 and Article 30 of the directive, preclude the application of the provisions laid down in Article 178(8-bis) of the [new Public Procurement Code], which unconditionally prohibit the award by administrative authorities of motorway concessions in respect of concessions that have expired or are due to expire, using the procedures laid down in Article 183 [of that code], which governs project financing?’ |
| --- | --- |

37

That is the context in which the Consiglio di Stato (Council of State) stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling:

‘With regard to the award of concessions, does [EU] law, in particular the principles laid down in Directive [2014/23], specifically freedom of choice as regards award procedures in accordance with the principles of transparency and [equal] treatment, as referred to in recital 68 and Article 30 of the directive, preclude the application of the provisions laid down in Article 178(8-bis) of the [new Public Procurement Code], which unconditionally prohibit the award by administrative authorities of motorway concessions in respect of concessions that have expired or are due to expire, using the procedures laid down in Article 183 [of that code], which governs project financing?’

bis

The question referred

The question referred

| 38 | Under Article 99 of the Rules of Procedure of the Court, where the reply to a question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law or where the answer to such a question admits of no reasonable doubt, the Court may at any time, on a proposal from the Judge Rapporteur and after hearing the Advocate General, decide to rule by reasoned order. |
| --- | --- |

38

Under Article 99 of the Rules of Procedure of the Court, where the reply to a question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law or where the answer to such a question admits of no reasonable doubt, the Court may at any time, on a proposal from the Judge Rapporteur and after hearing the Advocate General, decide to rule by reasoned order.

| 39 | It is appropriate to apply that article in the present case. |
| --- | --- |

39

It is appropriate to apply that article in the present case.

| 40 | As a preliminary point, it must be observed that this request for a preliminary ruling is not intended to determine whether the project financing procedure under Article 183 of the new Public Procurement Code is compatible with Directive 2014/23, but rather to determine whether a Member State can require its contracting authorities to use a concession for the operation of motorways and, thereby, prevent them from opting for the project financing procedure. |
| --- | --- |

40

As a preliminary point, it must be observed that this request for a preliminary ruling is not intended to determine whether the project financing procedure under Article 183 of the new Public Procurement Code is compatible with Directive 2014/23, but rather to determine whether a Member State can require its contracting authorities to use a concession for the operation of motorways and, thereby, prevent them from opting for the project financing procedure.

| 41 | By its question, the Consiglio di Stato (Council of State) is asking, in essence, whether the first subparagraph of Article 2(1) of Directive 2014/23, read in conjunction with Article 30 and recitals 5 and 68 of that directive, must be interpreted as precluding a national provision whereby contracting authorities are prohibited from using the project financing procedure laid down in Article 183 of the new Public Procurement Code when renewing motorway concessions that have expired or are due to expire. |
| --- | --- |

41

By its question, the Consiglio di Stato (Council of State) is asking, in essence, whether the first subparagraph of Article 2(1) of Directive 2014/23, read in conjunction with Article 30 and recitals 5 and 68 of that directive, must be interpreted as precluding a national provision whereby contracting authorities are prohibited from using the project financing procedure laid down in Article 183 of the new Public Procurement Code when renewing motorway concessions that have expired or are due to expire.

| 42 | Having regard to both the wording of Directive 2014/23 and the recent case-law of the Court on public procurement, that question must be answered in the negative. |
| --- | --- |

42

Having regard to both the wording of Directive 2014/23 and the recent case-law of the Court on public procurement, that question must be answered in the negative.

| 43 | First, as is clear from Article 1 of Directive 2014/23, read in conjunction with recital 8, the sole objective of the directive is to establish rules on the procedures for procurement by contracting authorities and contracting entities by means of a concession, where the value of those contracts is estimated to be not less than the thresholds laid down in Article 8 thereof. |
| --- | --- |

43

First, as is clear from Article 1 of Directive 2014/23, read in conjunction with recital 8, the sole objective of the directive is to establish rules on the procedures for procurement by contracting authorities and contracting entities by means of a concession, where the value of those contracts is estimated to be not less than the thresholds laid down in Article 8 thereof.

| 44 | Directive 2014/23 is therefore intended to apply only where a contracting authority or contracting entity has launched a procurement procedure to award a concession. |
| --- | --- |

44

Directive 2014/23 is therefore intended to apply only where a contracting authority or contracting entity has launched a procurement procedure to award a concession.

| 45 | Secondly, the first subparagraph of Article 2(1) of Directive 2014/23 recognises the principle of free administration by national, regional and local authorities in conformity with national and Union law. Those ‘authorities’, in their capacity as authorities with legislative powers rather than as contracting authorities or contracting entities, are in that way free to decide how best to manage the execution of works or the provision of services, in order to ensure in particular a high level of quality, safety and affordability, equal treatment and the promotion of universal access and of user rights in public services. |
| --- | --- |

45

Secondly, the first subparagraph of Article 2(1) of Directive 2014/23 recognises the principle of free administration by national, regional and local authorities in conformity with national and Union law. Those ‘authorities’, in their capacity as authorities with legislative powers rather than as contracting authorities or contracting entities, are in that way free to decide how best to manage the execution of works or the provision of services, in order to ensure in particular a high level of quality, safety and affordability, equal treatment and the promotion of universal access and of user rights in public services.

| 46 | Thirdly, it can be seen from the second subparagraph of Article 2(1) of Directive 2014/23, read in conjunction with recital 5 thereof, that those authorities can choose to perform their public interest tasks using their own resources, cooperating with other authorities or by delegating those tasks to economic operators. |
| --- | --- |

46

Thirdly, it can be seen from the second subparagraph of Article 2(1) of Directive 2014/23, read in conjunction with recital 5 thereof, that those authorities can choose to perform their public interest tasks using their own resources, cooperating with other authorities or by delegating those tasks to economic operators.

| 47 | It is therefore apparent that Directive 2014/23 cannot deprive the Member States of their freedom to favour one management method to the detriment of others. That freedom involves a choice which is made at an earlier stage than the procurement procedure and cannot, therefore, fall within the scope of application of that directive (see by analogy, judgment of 3 October 2019, Irgita, C‐285/18, EU:C:2019:829, paragraph 44, and orders of 6 February 2020, Pia Opera Croce Verde Padova, C‐11/19, EU:C:2020:88, paragraph 41, and of 6 February 2020, Rieco, C‐89/19 to C‐91/19, EU:C:2020:87, paragraph 33). |
| --- | --- |

47

It is therefore apparent that Directive 2014/23 cannot deprive the Member States of their freedom to favour one management method to the detriment of others. That freedom involves a choice which is made at an earlier stage than the procurement procedure and cannot, therefore, fall within the scope of application of that directive (see by analogy, judgment of 3 October 2019, Irgita, C‐285/18, EU:C:2019:829, paragraph 44, and orders of 6 February 2020, Pia Opera Croce Verde Padova, C‐11/19, EU:C:2020:88, paragraph 41, and of 6 February 2020, Rieco, C‐89/19 to C‐91/19, EU:C:2020:87, paragraph 33).

| 48 | Fourthly, that interpretation cannot be called into question by the statement, in Article 30(1) and recital 68 of that directive, to the effect that the contracting authority or contracting entity is to have the freedom to organise the procedure leading to the choice of concessionaire subject to compliance with that directive. |
| --- | --- |

48

Fourthly, that interpretation cannot be called into question by the statement, in Article 30(1) and recital 68 of that directive, to the effect that the contracting authority or contracting entity is to have the freedom to organise the procedure leading to the choice of concessionaire subject to compliance with that directive.

| 49 | Where national, regional or local authorities have chosen to favour one management method in particular, the contracting authorities or contracting entities in fact have only conditional freedom which can only be used, therefore, in the context of the policy choices made previously by those authorities. |
| --- | --- |

49

Where national, regional or local authorities have chosen to favour one management method in particular, the contracting authorities or contracting entities in fact have only conditional freedom which can only be used, therefore, in the context of the policy choices made previously by those authorities.

| 50 | Fifthly, the freedom available to national, regional or local authorities, under the first subparagraph of Article 2(1) of Directive 2014/23, to decide how best to manage the execution of works or the provision of services, cannot however be unlimited. It must, rather, be exercised with due regard to the fundamental rules of the FEU Treaty, in particular the free movement of goods, the freedom of establishment and the freedom to provide services as well as the principles deriving from them, such as equal treatment, non-discrimination, mutual recognition, proportionality and transparency (see by analogy, judgment of 3 October 2019, Irgita, C‐285/18, EU:C:2019:829, paragraph 48 and the case-law cited, and orders of 6 February 2020, Pia Opera Croce Verde Padova, C‐11/19, EU:C:2020:88, paragraph 45, and of 6 February 2020, Rieco, C‐89/19 to C‐91/19, EU:C:2020:87, paragraph 37). |
| --- | --- |

50

Fifthly, the freedom available to national, regional or local authorities, under the first subparagraph of Article 2(1) of Directive 2014/23, to decide how best to manage the execution of works or the provision of services, cannot however be unlimited. It must, rather, be exercised with due regard to the fundamental rules of the FEU Treaty, in particular the free movement of goods, the freedom of establishment and the freedom to provide services as well as the principles deriving from them, such as equal treatment, non-discrimination, mutual recognition, proportionality and transparency (see by analogy, judgment of 3 October 2019, Irgita, C‐285/18, EU:C:2019:829, paragraph 48 and the case-law cited, and orders of 6 February 2020, Pia Opera Croce Verde Padova, C‐11/19, EU:C:2020:88, paragraph 45, and of 6 February 2020, Rieco, C‐89/19 to C‐91/19, EU:C:2020:87, paragraph 37).

| 51 | Although it is incumbent on the referring court, in the case in the main proceedings, to ensure that the prohibition on contracting authorities and contracting entities using the project financing procedure, as set out in Article 178(8bis) of the new Public Procurement Code, has not gone beyond the limits referred to in the preceding paragraph of the present order, it is apparent both from the decision to refer and the written observations submitted to the Court by the Italian Government and the European Commission that the article in question sought to ensure that motorway concessions are opened up to the widest possible competition. Since the motorway concessions sector has only recently been opened up to competition, the Italian legislature opted for a system of public tender procedures prohibiting the alternative system in the form of awarding concessions by means of project financing. Article 178(8bis) of the new Public Procurement Code sought in that way to avoid enshrining any advantage, even a de facto one, for the outgoing concessionaires. |
| --- | --- |

51

Although it is incumbent on the referring court, in the case in the main proceedings, to ensure that the prohibition on contracting authorities and contracting entities using the project financing procedure, as set out in Article 178(8bis) of the new Public Procurement Code, has not gone beyond the limits referred to in the preceding paragraph of the present order, it is apparent both from the decision to refer and the written observations submitted to the Court by the Italian Government and the European Commission that the article in question sought to ensure that motorway concessions are opened up to the widest possible competition. Since the motorway concessions sector has only recently been opened up to competition, the Italian legislature opted for a system of public tender procedures prohibiting the alternative system in the form of awarding concessions by means of project financing. Article 178(8bis) of the new Public Procurement Code sought in that way to avoid enshrining any advantage, even a de facto one, for the outgoing concessionaires.

bis

bis

| 52 | In the light of the foregoing, the answer to the question referred is that the first subparagraph of Article 2(1) of Directive 2014/23, read in conjunction with Article 30 and recitals 5 and 68 thereof, must be interpreted as not precluding a national provision whereby contracting authorities are prohibited from using the project financing procedure laid down in Article 183 of the new Public Procurement Code to renew motorway concessions that have expired or are due to expire. |
| --- | --- |

52

In the light of the foregoing, the answer to the question referred is that the first subparagraph of Article 2(1) of Directive 2014/23, read in conjunction with Article 30 and recitals 5 and 68 thereof, must be interpreted as not precluding a national provision whereby contracting authorities are prohibited from using the project financing procedure laid down in Article 183 of the new Public Procurement Code to renew motorway concessions that have expired or are due to expire.

Costs

Costs

| 53 | 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. |
| --- | --- |

53

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 (Ninth Chamber) hereby rules: |
| --- | --- |

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

| | The first subparagraph of Article 2(1) of Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts, read in conjunction with Article 30 and recitals 5 and 68 thereof, must be interpreted as not precluding a national provision whereby contracting authorities are prohibited from renewing motorway concessions that have expired or are due to expire using the project financing procedure laid down in Article 183 of decreto legislativo n. 50 – Codice dei contratti pubblici (Legislative Decree No 50 laying down a public procurement code) of 18 April 2016. |
| --- | --- |

The first subparagraph of Article 2(1) of Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts, read in conjunction with Article 30 and recitals 5 and 68 thereof, must be interpreted as not precluding a national provision whereby contracting authorities are prohibited from renewing motorway concessions that have expired or are due to expire using the project financing procedure laid down in Article 183 of decreto legislativo n. 50 – Codice dei contratti pubblici (Legislative Decree No 50 laying down a public procurement code) of 18 April 2016.

The first subparagraph of Article 2(1) of Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts, read in conjunction with Article 30 and recitals 5 and 68 thereof, must be interpreted as not precluding a national provision whereby contracting authorities are prohibited from renewing motorway concessions that have expired or are due to expire using the project financing procedure laid down in Article 183 of decreto legislativo n. 50 – Codice dei contratti pubblici (Legislative Decree No 50 laying down a public procurement code) of 18 April 2016.

| | [Signatures] |
| --- | --- |

[Signatures]

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(
  *1
  )	Language of the case: Italian.

*1