Judgment;Summary — ECLI:EU:C:2022:835
Date: 2022-10-27
Language of the case: Italian
Court formation: Sixth Chamber
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-68/21 – 1 
Case C-68/21 
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:  
3 February 2021 
Referring court:  
Consiglio di Stato (Council of State, Italy) 
Date of the decision to refer:  
14 December 2020 
Appellant:  
Iveco Orecchia SpA 
Respondents:  
APAM Esercizio SpA 
Veneta Servizi International Srl unipersonale 
  
Subject matter of the main proceedings 
Appeal proceedings brought by an unsuccessful tenderer against a judgment of the 
Tribunale amministrativo regionale per la Lombardia (Regional Administrative 
Court, Lombardy, Italy) concerning the award of a public contract for the supply 
of replacement parts for buses to a tenderer who had submitted a tender 
accompanied not by type-approval certificates but by declarations of equivalence 
to the type-approved original – declarations made by the tenderer, purporting to be 
a manufacturer. 
Subject matter and legal basis of the reference 
Interpretation of Articles 3, 10, 19 and 28 of and Annex IV to Directive 
2007/46/EC of the European Parliament and of the Council of 5 September 2007 
establishing a framework for the approval of motor vehicles and their trailers, and 
of systems, components and separate technical units intended for such vehicles. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-68/21 
 
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Questions referred for a preliminary ruling 
1. Is it compatible with EU law, and in particular with the provisions of 
Directive 2007/46/EC (laid down in Articles 10, 19 and 28 of that directive) and 
the principles of equal treatment and impartiality, open competition and sound 
administration, for – with specific reference to the supply through public 
procurement of replacement parts for buses intended for public service – a 
contracting authority to be allowed to accept replacement parts intended for a 
particular vehicle, made by a manufacturer other than the vehicle manufacturer, 
and therefore not approved together with the vehicle, falling into one of the 
categories of components covered by the technical rules listed in Annex IV to that 
directive (List of requirements for the purpose of EC type-approval of vehicles) 
and put to tender without being accompanied by the type-approval certificate and 
without any information on the actual type-approval, and indeed on the 
assumption that type-approval is not needed, as only a declaration of equivalence 
to the type-approved original made by the tenderer is sufficient? 
2. Is it compatible with EU law, and in particular Article 3(27) of Directive 
2007/46/EC to allow – in relation to the supply through public procurement of 
replacement parts for buses intended for public service – an individual tenderer to 
describe itself as ‘manufacturer’ of a specific non-original replacement part 
intended for a particular vehicle, especially where it falls into one of the categories 
of components covered by the technical rules listed in Annex IV (List of 
requirements for the purpose of EC type-approval of vehicles) to Directive 
2007/46/EC, or must that tenderer prove – for each of the replacement parts thus 
subject to tender and in order to certify their equivalence to the technical 
specifications of the tender – that it is the entity who is responsible to the approval 
authority for all aspects of the type-approval and for ensuring conformity of 
production and the related level of quality and is directly involved in at least some 
of the stages of the construction of the component which is the subject of the 
approval, and if so, by what means is such proof to be provided? 
Provisions of EU law relied on 
Directive 2004/17/EC 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, and in particular Article 34. 
Directive 2007/46/EC, cited above. 
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, 
specifically Articles 42, 44 and 62. 
IVECO ORECCHIA 
 
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Provisions of national law relied on 
Decreto legislativo del 18 aprile 2016, n. 50 (GURI n. 91 del 19 aprile 2016 – 
Supplemento ordinario n. 10) («Codice dei contratti pubblici») (Legislative 
Decree No 50 of 18 April 2016 (Gazzetta ufficiale della Repubblica italiana 
No 91 of 19 April 2016 – Ordinary Supplement No 10) (‘Public Procurement 
Code’)), in particular the following articles: 
Article 68: 
‘1. The technical specifications as defined in point 1 of Annex XIII shall be set 
out in the procurement documents and shall lay down the characteristics required 
of a works, service or supply. Those characteristics may also refer to the specific 
process or method of production or provision of the requested works, supplies or 
services or to a specific process for another stage of their life cycle even where 
such factors do not form part of their material substance, provided that they are 
linked to the subject matter of the contract and proportionate to its value and its 
objectives. …  
5. … The technical specifications shall be formulated in one of the following 
ways: …; (b) by reference to technical specifications and, in order of preference, 
to standards transposing European standards, European Technical Assessments, 
common technical specifications, international standards, other technical reference 
systems established by the European standardisation bodies or, failing that, 
national standards, technical approvals or technical specifications relating to the 
design, calculation and execution of the works and use of the supplies. Each 
reference shall be accompanied by the words “or equivalent”; (c) in terms of 
performance or functional requirements as referred to in point (a), with reference 
to the technical specifications referred to in point (b) as a means of presuming 
conformity with such performance or functional requirements; (d) by reference to 
the technical specifications referred to in point (b) for certain characteristics and 
by reference to the performance …  
… 
7. Where a contracting authority uses the option of referring to the technical 
specifications referred to in point (b) of paragraph 5, it shall not declare 
inadmissible or reject a tender on the grounds that the works, supplies or services 
tendered for do not comply with the technical specifications to which it has 
referred, once the tenderer demonstrates in its tender by any appropriate means, 
including the means of proof referred to in Article 86, that the solutions proposed 
satisfy in an equivalent manner the requirements defined by the technical 
specifications.’ 
Article 86, according to which the following are valid means of proof of the 
technical specifications: ‘a test report from a conformity assessment body or a 
certificate issued by such a body’ or ‘a technical dossier from the manufacturer’. 
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Decreto legislativo del 30 aprile 1992, n. 285 (GURI n. 114 del 18 maggio 1992 – 
Supplemento ordinario n. 74) («Nuovo Codice della Strada») (Legislative Decree 
No 285 of 30 April 1992 (Gazzetta ufficiale della Repubblica italiana No 114 of 
18 May 1992 – Ordinary Supplement No 74) (‘New Highway Code’)), in 
particular the following articles: 
Article 75(3): 
‘The vehicles referred to in paragraph 1, their components or separate technical 
units manufactured in series, shall be subject to type-approval’. 
Article 72(13) penalises anyone driving a vehicle to which non-approved 
components are fitted.  
Article 77(3-bis) lays down administrative fines for ‘anyone who imports, 
produces for placing on the market in the national territory or places on the market 
systems, components and separate technical units without the prescribed type-
approval or approval pursuant to Article 75(3-bis)’. This rule also provides for the 
seizure and confiscation of the ‘components referred to in this paragraph’ 
(including braking systems) ‘even if fitted to vehicles’. 
Decreto del Presidente della Repubblica dell’8 dicembre 2000, n. 445 (GURI n. 
42 del 20 febbraio 2001 – Supplemento ordinario n. 30) («Testo unico delle 
disposizioni legislative e regolamentari in materia di documentazione 
amministrativa») (Presidential Decree No 445 of 8 December 2000 (Gazzetta 
ufficiale della Repubblica italiana No 42 of 20 February 2001 – Ordinary 
Supplement No 30) (‘Consolidated text of the laws and regulations on 
administrative documentation’)), in particular Article 49, according to which: 
‘Certificates … of origin, EC certificates of conformity, trade marks or patents 
may not be replaced by another document, unless otherwise provided for by the 
rules applicable to the sector.’ 
Decreto legislativo del 6 settembre 2005, n. 206 (GURI n. 35 dell’8 ottobre 
2005 – Supplemento ordinario n. 162) («Codice del consumo») (Legislative 
Decree No 206 of 6 September 2005 (Gazzetta ufficiale della Repubblica italiana 
No 35 of 8 October 2005 – Ordinary Supplement No 162) (‘Consumer Code’)), 
and in particular Article 3, which defines the producer as ‘the manufacturer of 
goods or the provider of a service, or an intermediary thereof, and the importer of 
goods or services into the European Union or any other natural or legal person 
purporting to be a producer by placing its name, trade mark or other distinctive 
sign on the goods or service’. 
Decreto del Ministero delle Infrastrutture e dei Trasporti del 28 aprile 2008, n. 
32721 («Omologazione dei veicoli a motore e dei loro rimorchi») (GURI n. 162 
del 12 luglio 2008 – Supplemento ordinario n. 167) (Decree No 32721 of the 
Ministry of Infrastructure and Transport of 28 April 2008 (‘Approval of motor 
vehicles and their trailers’) (Gazzetta ufficiale della Repubblica italiana No 162 of 
IVECO ORECCHIA 
 
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12 July 2008 – Ordinary Supplement No 167)), which transposed Directive 
2007/46/EC, and in particular Article 3(ff), which defines ‘manufacturer’ as ‘the 
person or body who is responsible to the approval authority for all aspects of the 
type-approval process and for ensuring conformity of production’, even if ‘it is 
not essential that the person or body be directly involved in all stages of the 
construction of the vehicle, system, component or separate technical unit which is 
the subject of the approval process’. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The company APAM Esercizio SpA (‘the contracting entity’) held an open 
procedure for the two-year supply of original Iveco parts or equivalent for buses. 
Tenders for non-original, equivalent parts were allowed, defined as ‘replacement 
parts (component parts, equipment) of equivalent quality to the original, or parts 
of at least equal quality to the components used for the vehicle assembly, 
manufactured according to the technical specifications and production standards 
of the manufacturer of the original part’. The technical specifications required the 
type-approval certificate where this was compulsory. 
Three tenderers participated in the tender, including Iveco Orecchia SpA and 
Veneta Servizi International Srl unipersonale (‘the successful tenderer’).  
By decision of 29 January 2019, APAM awarded the tender to Veneta Servizi, 
which had been placed first in the ranking. 
2 By application to the Lombardy Regional Administrative Court, Iveco Orecchia, 
ranked second, challenged that award, the admission to the tender procedure of the 
successful tenderer, and the contract notice and specifications, in so far as they 
established the documentary procedures by which the tenderers could provide 
proof of equivalence of the parts tendered.  
3 By judgment of 25 June 2019, the Regional Administrative Court dismissed the 
action, finding that the documentation produced by the successful tenderer to 
certify the equivalence of the parts were in accordance with the tendering 
procedure rules and with the applicable EU and national legislation. 
Iveco Orecchia appealed against that decision before the Consiglio di Stato 
(Council of State, Italy), the referring court.  
Principal arguments of the parties to the main proceedings 
4 Iveco Orecchia contests in particular the failure to exclude the successful tenderer 
from the tender, even though it had not produced type-approval certificates for the 
equivalent parts tendered and had certified (purporting to be a manufacturer, 
despite only being a retailer and dealer) the equivalence of products manufactured 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-68/21 
 
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in reality by third parties, arguing that only the latter could certify the quality of 
their products.  
5 According to Iveco Orecchia, the need to safeguard the public interest in the 
quality and safety of public transport requires the tenderer to provide, together 
with the tender, the type-approval certificate or at least detailed information in this 
regard, and the absence of such documents cannot be remedied simply by 
declaring the part to be equivalent to the original. Moreover, such a declaration of 
equivalence should come only from the manufacturer of the replacement part, as 
the only person with direct knowledge of the product manufacturing process and, 
as such, the only person able to certify the conformity of the product with the 
technical specifications set out in the tender. 
6 According to the respondents, however, the applicable legislation and tendering 
procedure rules (which are consistent with the legislation) do not prescribe type-
approval for replacement parts described as ‘equivalent’ in the tender. They argue 
that the type-approval certificate is required only with reference to the prototype 
or to those components that are individually approved for a specific vehicle. For 
equivalent parts, the certificate of equivalence is thus admissible as an alternative 
to type-approval. 
7 Veneta Servizi further submits that the concept of parts manufacturer in the 
automotive sector corresponds to the definition of producer in the field of 
consumer goods, that is to say, the manufacturer of goods or the provider of a 
service, or an intermediary thereof, and the importer of goods or services into the 
European Union or any other natural or legal person purporting to be a producer 
by placing its name, trade mark or other distinctive sign on the goods or service. 
Veneta Servizi contends that it falls into this category, and thus could legitimately 
certify the equivalence of the parts in question. 
Succinct presentation of the reasons for the reference 
8 According to the referring court, the first controversial aspect is whether, on the 
basis of the combined provisions of Directive 2007/46/EC and the national 
legislation transposing it on the type-approval of vehicles and components, type-
approval is required for non-original components manufactured by a component 
manufacturer (who designs and manufactures individual vehicle components 
independently). In particular, it is unclear whether, for equivalent parts subject to 
type-approval and identified by the references made to the rules applicable to the 
sector in the tendering procedure rules, the tenderer must, for the tender to be 
accepted, also submit the type-approval certificate as proof of conformity with the 
original and to enable the part to be used (legally and technically) on the vehicles 
for which it is intended (or whether the tenderer must at least produce firm 
evidence of the type-approval of same), or whether a declaration by the tenderer 
certifying the equivalence to the original of the parts tendered is sufficient as an 
alternative to the submission of such documentation. 
IVECO ORECCHIA 
 
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9 In relation to this first question, in the view of the referring court, the legislation 
cited appears to impose on component manufacturers the same obligations as 
those imposed on vehicle manufacturers (who approve the entire vehicle and, in 
so doing, automatically approve each component of that vehicle), so that type-
approval would also be necessary for the parts and components placed on the 
market by component manufacturers. 
10 According to the relevant legislation and case-law, the technical specifications (in 
this case, the equivalence to the original part of the part tendered by the tenderer) 
could only be demonstrated by certificates and declarations from the 
manufacturer, or by other appropriate means of proof, in accordance with the 
combined provisions of Articles 42 and 44 of Directive 2014/24/EU, Article 34 of 
Directive 2004/17/EC (referred to by the Court of Justice in its judgment of 
12 July 2018, C-14/17), Articles 68 and 86, and Part II of Annex XVII to the 
Codice dei contratti pubblici (Italian Public Procurement Code). 
11 The abovementioned legislation also seems to require, for the purpose of 
recognising equivalence, that the tenderer provide both the declaration of 
equivalence of the products tendered and the documentation certifying that 
assumption. However, it could also be argued, as the respondents do, that as an 
alternative to such documentation, a generic certificate of equivalence is sufficient 
declaring the conformity of the part with the technical specifications provided for 
in the tendering procedure rules and the correspondence of the proposed solutions 
with the requirements thereof. 
12 The second questionable aspect is the person from whom the certificates of 
equivalence must originate, and in particular, whether they must necessarily come 
from the manufacturer of the component tendered, or whether they may also come 
from the retailer and dealer. In this respect, the correct interpretation of the term 
‘manufacturer’, within the meaning of the relevant legislation, is also disputed. 
13 In relation to this second question, an initial, more restrictive approach conflates 
the concept of ‘costruttore’ (‘manufacturer’, according to Directive 2007/46/EC) 
with that of ‘fabbricante’, as defined in the rules applicable to the sector. For 
example, Article 2.1.1 of UNECE Regulation No 90 defines the term 
‘manufacturer’ (‘fabbricante’) as ‘the organization which can assume technical 
responsibility [for the components] and can demonstrate that it possesses the 
necessary means to achieve conformity of production.’ This is supported by 
Article 1(1)(u) of Commission Regulation (EC) No 1400/2002 of 31 July 2002 on 
the application of Article 81(3) of the Treaty to categories of vertical agreements 
and concerted practices in the motor vehicle sector, which defines ‘spare parts of 
matching quality’ as ‘exclusively spare parts made by any undertaking which can 
certify at any moment that the parts in question match the quality of the 
components which are or were used for the assembly of the motor vehicles’. 
14 According to this view, only the manufacturer may certify the equivalence of the 
replacement part, since it is precisely the reference to the manufacturer that allows 
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the product – and, through certification, its technical characteristics – to be 
identified correctly. Conversely, reference cannot be made, in order to identify the 
‘manufacturer’, to other rules that are not relevant to the case at issue, such as 
consumer law.  
15 For proponents of the opposite approach, based on the reference to other 
legislation (such as the rules on consumer protection), a parts manufacturer should 
not only mean someone who actually manufactures a certain component, but the 
person who manufactures the product or part of it under his own trade mark, 
including through assembly or outsourcing to third parties of parts or components, 
and who is responsible for the warranty in the event of non-conformity of the 
product. In short, this is not only the person who directly manufactures the 
required parts, but also the person who assumes responsibility for their use, 
through certification of equivalence to the original or by providing the warranty 
for their correct operation and for the absence of construction defects, even if that 
person is not the owner of the plant or workshop where the part is made and even 
if he does not participate in the various stages of the construction of the product. 
16 In the view of the referring court, although the status of manufacturer seems to 
presuppose participation in at least one of the stages of the production process, the 
manner in which that status can be proven is still to be clarified: whether the 
particulars of the certificate of quality and the corporate purpose recorded in the 
business register are sufficient, or whether the tenderer must demonstrate (and if 
so, how) the availability of production facilities – whether directly or under 
contractual agreements – or the fact that all the parts for which it has certified 
equivalence are manufactured by third parties under its supervision and technical 
responsibility. 
17 It is also questionable whether the tendering procedure rules can be understood to 
mean that the submission and verification of the documents certifying the 
technical equivalence of the products tendered can be deferred until the 
contractual performance stage, even for the essential aspects of the tender and the 
subject matter of the contract, including the technical specifications, or whether 
the proof of equivalence of the products must be produced at the tendering stage.  
18 Since the outcome of the action depends on the answers to the questions referred, 
in that the choice of one or other interpretation will decide the dispute, the 
reference for a preliminary ruling to the Court of Justice is appropriate.