Judgment;Summary — ECLI:EU:C:2020:937
Date: 2020-11-18
Language of the case: Italian
Court formation: Ninth Chamber
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-299/19 — 1 
Case C-299/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
11 April 2019 
Referring court:  
Tribunale ordinario di Torino (Turin District Court, Italy) 
Date of the decision to refer:  
9 March 2019 
Applicant:  
Techbau SpA 
Defendant:  
Azienda Sanitaria Locale AL 
  
Subject matter of the main proceedings 
Action brought by an undertaking against an azienda sanitaria locale (local health 
authority) (public authority) in order to obtain payment of default interest owing at 
the rate laid down in national legislation in relation to late payment in commercial 
transactions (decreto legislativo n. 231/2002 (Legislative Decree No 231/2002) or, 
in the alternative, the codice degli appalti (Public Procurement Code) applicable 
ratione temporis). The public authority concerned claims that the national 
legislation in question is not applicable in this case because the contract with the 
company in question is a public works contract. 
Subject matter and legal basis of the reference 
The reference for a preliminary ruling, under Article 267 TFEU, relates to the 
possible non-compliance of Legislative Decree No 231/2002, in particular 
Article 2(1)(a) of that decree, with Directive 2000/35/EC, in particular 
Article 2(1) thereof, in so far that decree excludes from its scope public works 
contracts within the meaning of Directive 93/37/EEC. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-299/19 
 
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Question referred 
Does Article 2(1) of Directive 2000/35/EC preclude a national provision, such as 
Article 2(1)(a) of Legislative Decree No 231 of 9 October 2002, which excludes 
works contracts, whether public or private, and specifically public works contracts 
within the meaning of Directive 93/37/EEC, from the concept of ‘commercial 
transaction’ — defined as contracts that ‘lead, exclusively or primarily, to the 
delivery of goods or the provision of services in exchange for remuneration’ — 
and therefore from the scope of that directive? 
Provisions of EU law relied on 
Directive 2000/35/EC of the European Parliament and of the Council of 29 June 
2000 on combating late payment in commercial transactions, in particular 
Article 2. 
Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of 
procedures for the award of public works contracts, in particular Article 1. 
Directive 2011/7/EU of the European Parliament and of the Council of 
16 February 2011 on combating late payment in commercial transactions, in 
particular recital 11. 
Provisions of national law relied on 
Decreto Legislativo 9 ottobre 2002, n. 231, Attuazione della direttiva 2000/35/CE 
relativa alla lotta contro i ritardi di pagamento nelle transazioni commerciali 
(Legislative Decree No 231 of 9 October 2002 implementing Directive 
2000/35/EC on combating late payment in commercial transactions), in particular 
Articles 1 and 2. 
Decreto legislativo 9 novembre 2012, n. 192, Modifiche al decreto legislativo 9 
ottobre 2002, n. 231, per l’integrale recepimento della direttiva 2011/7/UE relativa 
alla lotta contro i ritardi di pagamento nelle transazioni commerciali, a norma 
dell’articolo 10, comma 1, della legge 11 novembre 2011, n. 180 (Legislative 
Decree No 192 of 9 November 2012 amending Legislative Decree No 231 of 
9 October 2002 for the complete transposition of Directive 2011/7/EU on 
combating late payment in commercial transactions, in accordance with 
Article 10(1) of Law No 180 of 11 November 2011), in particular Article 1. 
Decreto Legislativo 12 aprile 2006, 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 of 12 April 2006, Code on public works contracts, 
public service contracts and public supply contracts implementing Directives 
2004/17/EC and 2004/18/EC). 
TECHBAU 
 
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Legge 30 ottobre 2014, n. 161, Disposizioni per l’adempimento degli obblighi 
derivanti dall’appartenenza dell’Italia all’Unione europea — Legge europea 2013-
bis (Law No 161 of 30 October 2014 laying down provisions for the fulfilment of 
the obligations arising from Italy’s membership of the European Union — 
European Law 2013-bis), in particular Article 24. 
Succinct presentation of the facts and the main proceedings 
1 A procurement contract was concluded between the Azienda Sanitaria Locale di 
Alessandria (Alessandria Local Health Authority (‘the ASL’) and Techbau SpA 
(‘Techbau’) on 29 April 2010 for a total amount of EUR 7 487 719.49. The 
contract covered the ‘turnkey’ supply and installation of a surgical block in the 
form of a prefabricated modular system for the Ospedale Santo Spirito in Casale 
Monferrato. In accordance with the special tender specifications, the service to be 
provided by the undertaking consisted of the following: the supply of a surgical 
block made up of six operating theatres, the construction of the supporting 
structure, plans drafted on the basis of the technical requirements set out in the 
specifications, and the performance of all civil engineering and installation work 
necessary or instrumental in that supply. 
2 The ASL paid the contractual amount, but considerably later than the deadlines 
laid down in the tender specifications. Techbau has calculated the default interest 
it believes to be payable as EUR 197 008.65 and initiated legal proceedings to 
obtain payment of that amount. 
3 Techbau contends that the ASL should be ordered to pay the default interest at the 
rate laid down in Legislative Decree No 231/2002, calculated in the above amount 
or, in the alternative, calculated according to the Public Procurement Code 
applicable ratione temporis (namely Legislative Decree No 163/2006) in an 
amount of EUR 93 452.31. 
The essential arguments of the parties to the main proceedings 
4 The ASL claims that the contract with Techbau is a public works contract, and 
therefore does not fall within the scope of Legislative Decree No 231/2002. 
5 For its part, Techbau maintains that, in accordance with a ‘predominance test’ (the 
consideration agreed is attributable 73% as to supplies and 27% as to services), 
the public contract should be classified as a whole as a supply and services 
contract, so that Legislative Decree No 231/2002 is clearly applicable. 
Succinct presentation of the reasons for the request for a preliminary ruling 
6 The referring court notes that the ASL has not specifically contested the payment 
delays alleged by Techbau. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-299/19 
 
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7 As regards the nature of the contract between the parties, the referring court is of 
the view that it is a works contract and, in that regard, refers to the settled national 
administrative case-law, to the effect that a tender or works contract is deemed to 
exist if the actual principal purpose of the contract is the execution of a single 
work and the supply of the material is but one element in the execution of the 
work. 
8 In addition, the referring court observes that, on the basis of an examination of the 
special tender specifications attached to the contract, the ASL requested 
substantial and specific modifications to the work, which is a clear sign that it is a 
contract for manufacture (works contract). 
9 Legislative Decree No 231/2002 therefore applies to the contract being discussed 
in this case. 
10 Legislative Decree No 231/2002, in the version applicable at the material time, 
transposes Directive 2000/35/EC into Italian law. 
11 The point of contention relates to the definition of the scope of the 
abovementioned decree, in particular as regards the purpose of the contract. 
12 The scope of Legislative Decree No 231/2002 covers ‘all payments made by way 
of remuneration in a commercial transaction’ (Article 1(1)), where ‘commercial 
transactions’ are defined as ‘contracts, howsoever named, between undertakings 
or between undertakings and public authorities which lead, exclusively or 
predominantly, to the delivery of goods or the provision of services for 
remuneration’ (Article 2(1)(a)).  
13 The referring court mentions the position adopted by various national bodies 
(Autorità Garante per i Lavori Pubblici (Public Works Regulator), Autorità 
Nazionale Anti Corruzione (National Anti-Corruption Authority), case-law) to the 
effect that Legislative Decree No 231/2002 is not applicable to works contracts 
(whether public or private), but indicates that it does not agree with that position. 
14 According to the court, that view is not satisfactory, because it claims to establish 
the meaning of ‘the delivery of goods or the provision of services’, for the purpose 
of defining the scope of Legislative Decree No 231/2002, solely on the basis of a 
provision of national law, without taking into consideration the fact that, because 
it serves to transpose Directive 2000/35/EC into Italian law, Legislative Decree 
No 231/2002 should be interpreted according to the meaning attributed to the 
expression ‘the delivery of goods or the provision of services’ in EU law. 
15 For that purpose, the referring court examines Directive 2000/35/EC and states 
that the concept of ‘provision of services’ should be interpreted independently, as 
defined within the directive, and in line with EU law, to establish whether a works 
contracts falls within the scope of the directive. 
TECHBAU 
 
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16 The referring court notes that Article 2(1) of the abovementioned directive defines 
the term ‘public authority’ by reference to other directives, in particular Directive 
93/37/EEC, which specifically relates to public works contracts. 
17 In the view of the referring court, it is clear that there would be no reason to adopt 
the concept of contracting authority as defined in Directive 93/37/EEC if contracts 
for manufacture (works contracts) were not included within the concept of 
commercial transaction, based on ‘the delivery of goods or the provision of 
services’, and therefore also fell outside the provisions governing late payments. 
18 The referring court also makes reference to Directive 77/388/EEC, Article 2 of 
which makes ‘the supply of goods or the provision of services’ subject to VAT, 
and Directive 2006/112/EC, indicating that no one has ever questioned the fact 
that works contracts fall within the scope of VAT, as they clearly involve the 
provision of services. 
19 According to the referring court, those arguments lead to the conclusion that it is 
reasonably plausible to interpret Article 2(1) of Directive 2000/35/EC as meaning 
that the concept of ‘the delivery of goods or the provision of services’ also 
includes works contracts, whether private or public, and specifically public works 
contracts within the meaning of Directive 93/37/EEC. 
20 The referring court also examines Directive 2011/7/EU, in particular recital 11, 
and infers from that directive that it confirmed the scope of the provisions 
governing late payments is as expressly including matters which, although they 
fall within the concept of ‘supply of goods and provision of services’, the Member 
States may have excluded from national provisions. 
21 In the present case, given that the Italian legislation transposing Directive 
2000/35/EC (namely Legislative Decree No 192/2012) does not clearly include 
public works contracts within the scope of the rules governing late payments, that 
legislation does not comply with EU law. 
22 After infringement proceedings (EU PILOT/5216/13/ENTR) were brought against 
Italy, the Italian State complied by introducing Law No 161 of 30 October 2014 
(in particular Article 24), which provided an authentic interpretation of 
Article 2(1)(a) of Legislative Decree No 231/2002, and it can no longer therefore 
be in dispute that contracts for manufacture or works contracts fall within the 
scope of EU rules on late payments. 
23 The referring court observes, however, that since Law No 161/2014 interprets 
Article 2(1)(a) of Legislative Decree No 231/2002 as having been replaced by 
Article 1(1)(b) of Legislative Decree No 192/2012, and since that law does not 
contain precise, express transitional rules extending the scope of the law to cover 
contracts existing prior to the entry into force of the most recent law that has been 
subject to interpretation, it is not clear whether Article 2(1)(a) of Legislative 
Decree No 231/2002 is applicable to public works procurement contracts 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-299/19 
 
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concluded before 1 January 2013 (or only to contracts concluded after Legislative 
Decree No 192/2012 entered into force, and thus after 1 January 2013). 
24 In the light of the above, and for the purpose of ensuring that Article 2(1)(a) of 
Legislative Decree No 231/2002 is applied in compliance with EU law, the 
referring court considers it essential to establish whether the concept of 
commercial transaction in Directive 2000/35/EC includes works contracts, both 
public and private, and specifically public works procurement contracts, as 
referred to in Directive 93/37/EEC.