Opinion of the Advocate General — ECLI:EU:C:2022:135
Date: 2022-02-24
Language of the case: Italian
Subject matter: State aids;Competition;Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Italy

Summary C­332/20 – 1 
Case C­332/20 
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: 
22 July 2020 
Referring court: 
Consiglio di Stato (Italy) 
Date of the decision to refer: 
13 February 2020 
Appellants: 
Roma Multiservizi SpA 
Rekeep SpA 
Respondents: 
Roma Capitale 
Autorità Garante della Concorrenza e del Mercato 
 
Subject of the action in the main proceedings 
The dispute concerns the legality of the decision by a contracting authority 
governed by public law that has excluded a consortium formed of two 
undertakings from a call for tenders to select the private partner in the future 
public-private company, because its own indirect shareholding in one of those two 
undertakings meant that the ceiling on ownership by the contracting authority in 
the future public-private company – set as 51% – was exceeded. 
Subject matter and legal basis of the reference 
Interpretation of Directives 2014/23/EU, 2014/24/EU and 2014/25/EU and of 
Article 107 TFEU with reference to the Italian legislation placing limits on public 
participation in semi-public companies. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C­332/20 
 
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Article 267 TFEU. 
Questions referred 
1. For the purposes of determining the minimum limit of 30% participation by 
the private partner in a future semi-public company – the limit deemed appropriate 
by the Italian legislature in implementation of the principles [of EU law] set in 
relation to European case-law – is it compatible with [EU] law and the correct 
interpretation of recitals 14 and 32 and Articles 12 and 18 of Directive 
2014/24/EU and of Article 30 of Directive 2014/23/EU, with reference also to 
Article 107 TFEU, for consideration to be given solely to the legal form/on-paper 
composition of that partner or may – or in fact must – the authority launching the 
tender also consider its own indirect participation in the private partner submitting 
a bid? 
2) If the answer to the above question is yes, is it consistent and in line with the 
principles [of EU law], and in particular with the principles of fair competition, 
proportionality and appropriateness, for the authority launching the tender to be 
able to exclude from the tender a private partner submitting a bid, where the 
effective participation of that private partner in the future semi-public company is 
in fact less than 30%, on account of the direct or indirect public participation 
identified? 
Provisions of EU law cited 
Directive 2014/24/EU, and in particular recitals 14 and 32 and Articles 12 and 18 
Directive 23/2014/EC, and in particular Articles 3 and 30 
The Court’s judgment of 15 October 2009 in Case C­196/08, Acoset 
The Court’s judgment of 22 December 2010 in Case C­215/09, Mehiläinen Oy 
Commission interpretative communication of 12 April 2008 
European Commission Green Paper of 30 April 2004 
Article 106 TFEU 
Provisions of national law cited 
Decreto legislativo del 19 agosto 2016, n. 175, «Testo unico in materia di società 
a partecipazione pubblica» (Legislative Decree No 175 of 19 August 2016, 
Consolidated text on publicly owned companies, and in particular the following 
articles. 
ROMA MULTISERVIZI AND REKEEP 
 
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Article 4 lays down the objectives that may be pursued by public administrations 
through the creation of companies in which they have shareholdings: on the one 
hand, these must be companies intended to undertake activities that are strictly 
necessary to achieve the institutional objectives of the body concerned. On the 
other hand, the activities to be undertaken must fall within those expressly 
indicated by paragraph 2 of that text, namely the following in particular: (a) the 
generation of a service of general interest, including the establishment and 
operation of networks and facilities used for those services; (b) the design and 
construction of public works on the basis of a programme agreement between 
public administrations; (c) the construction and operation of public works or the 
organisation and management of a service of general interest by means of a 
partnership contract. 
Article 7(5) lays down that private partners must first be identified through a 
public and open tendering procedure, under Article 5(9) of decreto legislativo del 
18 aprile 2016, n. 50 (Codice dei contratti pubblici) (Legislative Decree No 50 of 
18 April 2016 (Public Procurement Code)), while Article 17(2) states that ‘The 
private partner must meet the qualification requirements laid down in the legal or 
regulatory provisions in relation to the purpose for which the company has been 
created’. These qualification requirements (general and special, technical and 
economic/financial) must be specified in the invitation to tender. 
Article 17(1) states that ‘The participation in the semi-public company by the 
private partner may not be less than 30% and that partner must be selected using a 
public and open tendering procedure … That procedure must be intended to cover 
both the subscription or acquisition of the shareholding by the private partner and 
the award of the contract or concession that is the sole purpose of the business 
undertaken by the semi-public company’. 
Outline of the facts and the main proceedings 
1 The Comune di Roma (Municipality of Rome), referred to as Roma Capitale, 
launched a tender for the selection of a private partner and for the award of a 
contract for the Roma Capitale integrated school service to a semi-public 
company, setting the participation by Roma Capitale as 51% and the participation 
by the private partner as 49% and laying down that the entire operational risk was 
to be borne by that latter party. 
2 The bidders in the tender included the newly created consortium of Roma 
Multiservizi SpA and Rekeep SpA, which was, however, excluded, on the basis 
that Roma Multiservizi SpA is owned 51% by the company AMA SpA, which is 
wholly owned by the contracting authority, Roma Capitale. The total direct and 
indirect participation by Roma Capitale would therefore give that body an 
effective participation of 73.5% in the newly created semi-public company, thus 
exceeding the ceiling of 51% set for the tender. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C­332/20 
 
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3 By two separate actions, Roma Multiservizi SpA and Rekeep SpA requested that 
the Tribunale amministrativo regionale del Lazio (Lazio Regional Administrative 
Court, Lazio TAR) overturn the exclusion decision. Both companies also 
requested, in the alternative, that the matter be referred to the Court for a 
preliminary ruling, to ensure that the national legislation on the selection of 
private partners for newly created semi-public companies is interpreted correctly. 
4 The Lazio TAR dismissed both actions, holding that they were unfounded. Both 
companies filed appeals before the referring court, reiterating the request for 
referral to the Court for a preliminary ruling. 
Principal arguments of the parties to the main proceedings 
The appellants put forward similar pleas in law. In particular, Roma Multiservizi 
SpA asserted that: 
a) with regard to the private partner, the invitation to tender did not expressly 
establish that the private partner’s 49% share could not be achieved with an 
indirect public participation; 
b) the exclusion decision was, in any case, vitiated by a breach of the principle 
whereby the exclusion clauses must be exhaustive and final. 
Succinct presentation of the reasons for the request for a preliminary ruling 
5 The referring court first explains the abovementioned Italian legislation 
implementing Directives 2014/23/EU, 2014/24/EU and 2014/25/EU, which 
regulates semi-public companies, among other things. On the basis of that 
legislation, the public administration may choose to operate certain activities 
either through ‘in-house’ management using a company wholly owned by that 
administration or through the creation of a semi-public company for that purpose. 
The legislation provides a specific framework for the latter model to ensure that it 
is compatible with EU law. This therefore ensures consideration of the 
observations made in the EU case-law in respect of the previous Italian 
provisions, which laid down that only companies that were predominantly or 
wholly owned by the government or public bodies, directly or indirectly, were 
permitted to conclude agreements with public administrations – without tenders – 
in relation to activities or services. In support of those observations, it was in fact 
noted that the direct award of the service to a semi-public company could be used 
as a means of evading the principle of free competition: exemptions to that 
principle are permitted only where they are appropriately justified by the need to 
perform a mission of general economic interest, and thus with a view to achieving 
a fruitful public-private partnership, as indicated in the European Commission’s 
Green Paper of 30 April 2004. 
ROMA MULTISERVIZI AND REKEEP 
 
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6 On this point, it is necessary to clarify and distinguish the (profit-making) purpose 
of a semi-public company from that of a public administration, which is 
undeniably public. This has the consequence that the activities of a semi-public 
company and the services it offers are subject to accessibility conditions that a 
completely private enterprise would not consider favourable. The maximum limit 
of 70% public ownership of a semi-public company therefore identifies the point 
beyond which the activities of that company would alter competition in the 
market, because it would not only make that specific sector of the market 
unattractive, but would make it possible for the private partner in the semi-public 
company to limit excessively (below 30%) the economic risk associated with the 
participation in the company. Furthermore, a semi-public company with a private 
partner identified by means of a dual-purpose tender is the outcome of the 
interpretation of the case-law of the Consiglio di Stato (Council of State, Italy), 
the referring court in this case, which has been recognised as correct by the Court 
(judgment of 15 October 2009, C­196/08, Acoset). 
7 Moreover, in the light of the applicable EU law, it can be accepted that: 
a) the decision by a public administration to create a semi-public 
company is a typical expression of the discretion conferred by the law 
on public administrations to enable them to achieve the public interest 
objectives attributed to them; 
b) the private partner, which must be selected through a public tendering 
procedure, must be operational and not merely a shareholder in the 
capital, given the specific nature of the role it must assume in 
implementing the company object: furthermore, the involvement of the 
private partner in the achievement of general interest objectives is 
justified specifically by the absence within the public administration of 
the necessary expertise, which is available to the private partner; 
c) the involvement of the operational private partner must be adequate, 
and thus able to implement the company object. This adequacy has 
been determined by the national legislature, specifically to ensure 
compliance with the principles of EU law, as a minimum participation 
of 30%. Consequently, a participation below that threshold is in itself 
incapable of effectively achieving the company’s object; 
d) at the same time, the public participation in a semi-public company 
must not exceed 70%. 
8 To resolve the dispute, the referring court must establish whether, for the purposes 
of ensuring the correct threshold for participation in the newly created semi-public 
company (no more than 70% public participation, no less than 30% private 
participation), reference should be made only to the legal nature of the private 
partner (which in purely ‘formal’ terms is a private company limited by shares) or, 
where that private partner has public participation, whether consideration should 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C­332/20 
 
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also be given to the ‘substantive’ aspect of that participation. The former case – as 
asserted by the appellants – would favour the equal treatment of bidders and the 
principle of non-discrimination, as well as the more general principle of freedom 
of private economic enterprise. The latter case, by not taking into account the 
public participation, could potentially circumvent national law, could create a 
situation of market inefficiency and would infringe the principle of fair 
competition, because it would permit a private partner to enjoy unfairly the 
benefits of public participation. On this second point, the decision by a public 
administration (in this case, Roma Capitale) which specifically assesses the 
composition of partners that intend to bid for the selection of the partner in a 
newly created semi-public company and decides to exclude a bidder where that 
administration owns a significant portion of its capital, should be considered 
consistent with national constitutional principles and with the principles under EU 
law of efficiency, effectiveness, adequacy and proportionality, in relation to the 
principles of fair competition, equal treatment and non-discrimination. The choice 
of one or other interpretation will resolve the dispute in one way or in the exact 
opposite way, and it is therefore important to obtain a preliminary ruling on this 
matter from the Court of Justice.