Opinion of the Advocate General — ECLI:EU:C:2019:54
Date: 2019-01-23
Language of the case: Italian
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

summary, the submission of a tender by a tenderer which is in the process of merging with another tenderer, which has also been selected, is not incompatible with Article 28(2) of Directive 2014/24, unless the two operators act in a coordinated or concerted manner in the restricted procurement procedure so that they have an unfair advantage over other tenderers, a matter which it is for the national court to determine. V. Conclusion 88. In the light of the foregoing considerations, I suggest that the Court of Justice reply as follows to the Consiglio di Stato (Council of State, Italy): Article 28(2) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC must be interpreted as meaning that it does not preclude, in a restricted procedure, the admission to the tender evaluation stage of an economic operator which has concluded an agreement for the merger by absorption of another economic operator which has also been selected, provided that: – that merger agreement was not legally or substantively implemented before the tender submission stage; and – the two operators have not acted in a coordinated or concerted manner in the restricted procurement procedure so that they have an unfair advantage over other tenderers, a matter which it is for the national court to determine. 1 Original language: Spanish. 2 Directive of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65). 3 Judgment of 24 May 2016 (C‑396/14, EU:C:2016:347). 4 Directive of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108 p. 33). 5 Legislative Decree No 50 of 18 April 2016 (GURI No 91 of 19 April 2016, Ordinary Supplement No 10) transposing, inter alia, the provisions of Directive 2014/24 (‘CCP’). 6 Open Fiber has been the name of Enel Open Fiber since December 2016. 7 See paragraph 9 of the Commission decision of 15 December 2016 declaring the concentration compatible with the internal market and with the EEA Agreement (Case M.8234 — Enel/CDP Equity/Cassa Depositi e Prestiti/Enel Open Fiber/Metroweb Italia). 8 OJ 2016 C 427, p. 5. 9 Council Regulation of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1). 10 OJ 2017 C 15, p. 1. 11 Directive of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p. 1). 12 Case C‑396/14, EU:C:2016:347. 13 Directive of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1.) 14 Case C‑396/14, EU:C:2016:347. 15 In particular, Telecom Italia contends that there has been an ‘infringement of the mandatory principle that preselected persons and those who submit tenders must be legally and economically identical, which, for the purposes of the restricted procedure, is laid down by Article 28(2) of Directive 2014/24/EU and the relevant case-law of the Court of Justice’ (paragraph 7.3 of the order for reference). 16 Paragraph 7.4 of the order for reference. 17 In that connection, see, for example, judgments of 16 June 2015, Gauweiler and Others (C‑62/14, EU:C:2015:400, paragraphs 24 and 25); of 4 May 2016, Pillbox 38 (C‑477/14, EU:C:2016:324, paragraphs 15 and 16); of 5 July 2016, Ognyanov (C‑614/14, EU:C:2016:514, paragraph 19); of 15 November 2016, Ullens de Schooten (C‑268/15, EU:C:2016:874, paragraph 54); of 28 March 2017 Rosneft (C‑72/15, EU:C:2017:236, paragraphs 50 and 155); of 10 July 2018, Jehovan todistajat (C‑25/17, EU:C:2018:551, paragraph 31); and of 4 October 2018, Kantarev (C‑571/16, EU:C:2018:807, paragraph 44). 18 Paragraph 8.2, in fine, of the order for reference states that ‘it would be possible to come to a different conclusion only if the Court of Justice were to find that EU law prohibits the conclusion of agreements between competing operators in the context of the same tendering procedure in implementation of which a transaction is carried out, such as a merger by absorption, which is in principle permitted by that same EU law.’ 19 ‘The referring court or tribunal may also briefly state its view on the answer to be given to the questions referred for a preliminary ruling. That information may be useful to the Court’ (OJ 2018 C 257, p. 1). 20 See points 21 to 23, 41 and 42 of this Opinion. 21 For example, judgment of 26 June 2007, Ordre des barreaux francophones et germanophone and Others (C‑305/05, EU:C:2007:383, paragraph 18). 22 Case C‑396/14, EU:C:2016:347, paragraph 40. 23 That principle, ‘the aim of which is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure, requires that all tenderers must be afforded equality of opportunity when formulating their tenders, and therefore implies that the tenders of all competitors must be subject to the same conditions’. Judgment in MT Højgaard and Züblin (C‑396/14, EU:C:2016:347, paragraph 38). 24 Loc. cit., paragraph 39. 25 Loc. cit., paragraph 41. 26 Opinion of Advocate General Mengozzi in MT Højgaard and Züblin (C‑396/14, EU:C:2015:774, point 48). 27 As explained in paragraphs 10 and 42 of the judgment in MT Højgaard and Züblin (C‑396/14, EU:C:2016:347). 28 Judgment in MT Højgaard and Züblin (C‑396/14, EU:C:2016:347, paragraph 44), italics added. 29 Case C‑396/14, EU:C:2016:347. 30 Point 31 of its written observations. 31 As Telecom Italia states in its written observations (point 31), ‘in that scenario, the [subsequent] formal legal nature of the absorbed company (Metroweb Sviluppo) is not important …; in reality, it is sufficient that the substantive, rather than legal, identity of the absorbing company (Open Fiber) changes … for the merger to be incompatible with … the principle laid down in Article 28(2) of Directive 2014/24’. 32 Pursuant to Article 3(1) of Directive 2011/35/EU of the European Parliament and of the Council of 5 April 2011 concerning mergers of public limited liability companies (OJ 2011 L 110, p. 1), ‘“merger by acquisition” shall mean the operation whereby one or more companies are wound up without going into liquidation and transfer to another all their assets and liabilities in exchange for the issue to the shareholders of the company or companies being acquired of shares in the acquiring company and a cash payment, if any, not exceeding 10% of the nominal value of the shares so issued or, where they have no nominal value, of their accounting par value.’ 33 ‘If the principles to be inferred from Article 28(2) were more broadly construed, the consequences would be difficult for contracting authorities to manage and there would be a constant risk of the ex post nullity of acts awarding a contract … in clear contravention of the general principle of the stability of legal situations’ (paragraph 8.3 in fine of the order for reference). 34 The specific situation referred to in Article 72(1)(d)(ii) is ‘universal or partial succession into the position of the initial contractor, following corporate restructuring, including takeover, merger, acquisition or insolvency, of another economic operator that fulfils the criteria for qualitative selection initially established provided that this does not entail other substantial modifications to the contract and is not aimed at circumventing the application of this Directive’. 35 That possibility is based on the principle of preservation of the contract and the requirement that any changes in the shareholding structure should not be prejudiced by interference in the normal performance of corporate transactions. The latter could be affected if changes occurring in the capital had a negative impact on restricted procurement procedures. Companies would therefore be prevented from carrying out corporate restructuring programmes. 36 According to recital 110 in the preamble to Directive 2014/24, ‘… the successful tenderer performing the contract should be able, in particular where the contract has been awarded to more than one undertaking, to undergo certain structural changes during the performance of the contract, such as purely internal reorganisations, takeovers, mergers and acquisitions or insolvency. Such structural changes should not automatically require new procurement procedures for all public contracts performed by that tenderer.’ 37 Judgment of 17 May 2018 (C‑531/16, EU:C:2018:324). 38 Ibid., paragraph 24. 39 Judgment of 12 March 2015, eVigilo (C‑538/13, EU:C:2015:166, paragraph 33 and the case-law cited). 40 For example, judgment of 16 December 2008, Michaniki (C‑213/07, EU:C:2008:731, paragraph 45). 41 As stated above (point 17), the merger took place on 23 January 2017, while the provisional lists of successful tenderers for the five lots were published on 24 January 2017. 42 Specializuotas transportas (C‑531/16, EU:C:2018:324, paragraph 29). 43 Order for reference, paragraph 8.4. 44 Pursuant to which ‘a concentration with a Community dimension … or which is to be examined by the Commission … shall not be implemented either before its notification or until it has been declared compatible with the common market pursuant to a decision’. 45 These are the situations referred to in paragraph 29 of the judgment in Specializuotas transportas (C‑531/16, EU:C:2018:324), transcribed above. That situation might have occurred if the merger process had begun before the submission of tenders and the substantive (and unlawful) implementation of the merger prior to the Commission’s decision had affected the subject matter of Enel Open Fiber’s tender in the same way as would have happened if that undertaking and Metroweb Sviluppo had coordinated with one another to align their conduct throughout the successive stages of the procedure, to the detriment of other operators. 46 Order for reference, paragraph 8.4.