Opinion of the Advocate General — ECLI:EU:C:2020:254
Date: 2020-04-02
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 C-3/19 — 1 
Case C-3/19 
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: 
3 January 2019 
Referring court: 
Consiglio di Stato (Italy) 
Date of the decision to refer: 
20 September 2018 
Appellant: 
Asmel s.c.a.r.l. 
Respondent: 
ANAC — Autorità Nazionale Anticorruzione 
In the presence of: 
ANACAP — Associazione Nazionale Aziende Concessionarie 
Servizi entrate enti locali 
  
Subject matter of the main proceedings 
Appeal brought by Asmel s.c.a.r.l. against judgment No 2339/2016 of the 
Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, 
Lazio, Italy) (‘the TAR’), which dismissed the action brought by Asmel s.c.a.r.l. 
against Decision No 32/2015 of the Autorità nazionale anticorruzione (National 
Anti-Corruption Authority) (‘ANAC’), which stated that Asmel s.c.a.r.l. and the 
Asmez consortium did not conform to the organisational models for central 
purchasing bodies laid down in Article 33(3a) of decreto legislativo 12 aprile 
2006, n. 163 (Legislative Decree No 163 of 12 April 2006). 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-3/19 
 
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Subject matter and legal basis of the reference 
The compatibility of Article 33(3a) of Legislative Decree No 163/2006 with the 
prohibition of restrictions on the freedom to provide services within the European 
Union, enshrined in Article [56] of the Treaty on the Functioning of the European 
Union, and with EU law in the field of public procurement, since that provision, 
read in conjunction with Article 3(25) of that legislative decree, restricts the 
organisational autonomy of small municipalities to only two models for central 
purchasing bodies, requires those small municipalities to use only public-law 
organisational models, and confines the scope of operation of the central 
purchasing body to the territory of the municipalities that exist within the union of 
municipalities or that make up the consortium. 
Questions referred 
Does a provision of national legislation, such as Article 33(3a) of Legislative 
Decree No 163 of 12 April 2006, which restricts the autonomy of municipalities to 
entrust [procurement] to a central purchasing body to only two organisational 
models (the union of municipalities, if it already exists, or a consortium to be 
established between municipalities), infringe EU law? 
In any event, does a provision of national legislation, such as Article 33(3a) of 
Legislative Decree No 163 of 12 April 2006 which, read in conjunction with 
Article 3(25) of that legislative decree, regarding the organisational model based 
on consortia of municipalities, excludes the possibility of creating entities 
governed by private law, such as a consortium under ordinary law whose 
members include private entities, infringe EU law, in particular the principles of 
free movement of services and of opening up to competition as far as possible in 
the field of public service contracts? 
Lastly, does a provision of national legislation, such as Article 33(3a) which, if 
interpreted in the sense of allowing consortia of municipalities that are central 
purchasing bodies to operate in a territory corresponding to that of the 
participating municipalities as a whole, and so, at most, to the provincial territory, 
limits the scope of operation of those central purchasing bodies, infringe EU law, 
in particular the principles of free movement of services and of opening up to 
competition as far as possible in the field of public service contracts? 
Provisions of EU law relied on 
Directive 2004/18, in particular: recital 15; recital 16; Article 1(9) and (10); 
Article 11 
Article [56] of the Treaty on the Functioning of the European Union 
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Provisions of national law relied on 
Legislative Decree No 163 of 12 April 2006, in particular: Article 3(25), which 
classifies as contracting authorities ‘State administrative authorities; regional or 
local authorities; other non-economic public bodies; bodies governed by public 
law; associations, unions, consortia, however named, established by those 
entities’; Article 3(34), according to which a central purchasing body is ‘a 
contracting authority which: — acquires supplies or services intended for 
contracting authorities or other contracting entities, or — awards public contracts 
or concludes framework agreements for works, supplies or services intended for 
contracting authorities or other contracting entities’; Article 33(3a), inserted by 
Article 23(4) of decreto legge 6 dicembre 2011, n. 201 (Decree-Law No 201 of 
6 December 2011), converted by legge 22 dicembre 2011, n. 214 (Law No 214 of 
22 December 2011), under which ‘municipalities with a population not exceeding 
5 000 inhabitants situated within the territory of each province shall compulsorily 
entrust to a single central purchasing body the acquisition of works, services and 
supplies within the framework of the unions of municipalities, as provided for in 
Article 32 of the consolidated text contained in decreto legislativo 18 agosto 2000, 
n. 267 (Legislative Decree No 267 of 18 August 2000), where they exist, or by 
establishing a special consortium agreement between those municipalities and 
relying on the support of the relevant departments’; Article 33(3a), in the version 
introduced by Article 9(4) of decreto legge 24 aprile 2014, n. 66 (Decree-Law 
No 66 of 24 April 2014), converted by legge 23 giugno 2014, n. 89 (Law No 89 of 
23 June 2014), pursuant to which ‘municipalities that are not the provincial capital 
shall acquire works, goods and services within the framework of the unions of 
municipalities provided for in Article 32 of decreto legislativo [18] agosto 2000, 
n. 267 (Legislative Decree No 267 of 18 August 2000), where they exist, or by 
establishing a special consortium agreement between those municipalities and 
relying on the support of the relevant departments, or using an aggregator or the 
provincial authorities, pursuant to legge 7 aprile 2014, n. 56 (Law No 56 of 
7 April 2014). Alternatively, those municipalities may carry out their own 
purchases by means of the electronic purchasing tools managed by Consip SpA or 
by another reference aggregator’. 
Legislative Decree No 267 of 18 August 2000 (Testo unico degli enti locali) 
(Consolidated law on local authorities) (‘the TUEL’), in particular: Article 30, 
according to which ‘in order to discharge certain functions and to provide certain 
services in a coordinated manner, local bodies may enter into appropriate 
agreements with each other’; Article 31, which provides that ‘local bodies for the 
associated management of one or more services and for the associated exercise of 
functions may form a consortium in accordance with the rules laid down for 
special undertakings provided for in Article 114, in so far as they are compatible. 
Other public bodies may participate in the consortium, when they are authorised 
to do so, in accordance with the laws to which they are subject’; Article 32, 
according to which ‘a union of municipalities is a local body formed of two or 
more municipalities, usually contiguous, for the associated exercise of functions 
and provision of services’. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-3/19 
 
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Succinct presentation of the facts and procedure 
1 The case concerns the activities carried out by Asmel s.c.a.r.l. as a central 
purchasing body for local authorities. 
2 Asmel s.c.a.r.l. was established on 23 January 2013. It is made up of the Asmez 
consortium, the non-recognised association Asmel and the municipality of 
Caggiano, which hold 24%, 25% and 51% of the shares respectively. 
3 For its part, the Asmez consortium, established in Naples on 25 March 1994, is 
made up of private undertakings, the limited liability company Selene Service — 
which has an agreement with the Campania office of the Associazione nazionale 
comuni italiani (National Association of Italian Municipalities) (ANCI) — and 
numerous municipalities, including some in Basilicata and Calabria. The 
association Asmel, by contrast, was established on 26 May 2010 by the limited 
liability consortium companies Asmenet Campania and Asmenet Calabria, and by 
the Asmez consortium and the Associazione nazionale piccoli comuni italiani 
(National Association of Small Italian Municipalities) (ANPCI). 
4 Following various complaints, ANAC conducted several investigations into 
Asmel s.c.a.r.l.. As a result of those investigations, it adopted Decision No 32 of 
30 April 2015, stating that neither Asmel s.c.a.r.l. nor the Asmez consortium 
conformed to the organisational models for central purchasing bodies laid down in 
Article 33(3a) of Legislative Decree No 163/2006, in the version introduced by 
Decree-Law No 201/2011. 
5 In particular, ANAC declared that Asmel s.c.a.r.l. was governed by private law, as 
a private company established by other associations, whereas the Italian legal 
system has always defined central purchasing bodies by referring to public entities 
or associations of local authorities, such as the union of municipalities and the 
consortium of municipalities resulting from agreements pursuant to Article 30 of 
the TUEL. ANAC also specified that, even if the use of private entities were 
permitted, these should be in-house bodies involved in activities confined to the 
territory of the founding municipalities, whereas in the present case the 
requirement concerning such control was not met; nor was there any territorial 
delineation of the activities performed. 
6 In the decision in question, ANAC went on to note that the consortium company 
was involved in activities that were instrumental only to the local authority 
members’ goods purchasing needs, without serving needs in the general interest 
that were essential for the community, and that the local authorities participated 
only indirectly in the central purchasing body. Indeed, the local authorities 
originally joined the non-recognised association Asmel, which in turn is a member 
of Asmel s.c.a.r.l.. Only later did they entrust procurement to that consortium 
company, by a decision of the municipal executive. 
7 Therefore, ANAC ruled out the possibility that Asmel s.c.a.r.l. could be classified 
as a body governed by public law, issued a ban on carrying out brokerage 
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activities in the field of public procurement, and declared the invitations to tender 
that company had carried out to be unlawful. 
8 By means of an action before the TAR, Asmel s.c.a.r.l. challenged ANAC’s 
decision. 
9 First, Asmel s.c.a.r.l. contested the refusal to classify it as a ‘body governed by 
public law’, arguing that it had legal personality, since the fact that its legal 
personality was governed by ordinary law was irrelevant. It further maintained 
that it met the public interest requirements, since it was non-industrial and 
commercial in nature, that it was funded by its local authority members, and that it 
operated under their dominant influence. As a body governed by public law, 
Asmel s.c.a.r.l. was thus one of the contracting authorities referred to in 
Article 3(25) of Legislative Decree No 163/2006, and as such qualified as a 
‘central purchasing body’ on the basis of Article 3(34) of that legislative decree. 
That article defines central purchasing bodies as ‘contracting authorities’, 
regardless of the organisational models established by Article 33(3a). 
10 Next, in another plea, Asmel s.c.a.r.l. submitted that neither the previous version 
of Article 33(3a) nor its subsequent version created an obligation for central 
purchasing bodies to operate on an infra-regional basis. 
11 Lastly, Asmel s.c.a.r.l. challenged ANAC’s misinterpretation of the concept of a 
‘consortium agreement between municipalities’ provided for in Article 33(3a). 
According to that company, that provision did not refer to the agreements 
provided for in Article 30 of Legislative Decree No 267/2000, but to any method 
by which activities of interest to local authorities may be carried out in 
cooperative form, including a consortium governed by private law. 
12 ANAC entered an appearance in the proceedings before the TAR, arguing that 
Asmel s.c.a.r.l.’s action should be dismissed. By judgment No 2339 of 
22 February 2016, that court dismissed Asmel s.c.a.r.l.’s action, finding that the 
‘Asmel system’ did not conform to the statutory model for central purchasing 
bodies laid down in the combined provisions of Article 3(25) and (34) and 
Article 33(1), (2) and (3a) of Legislative Decree No 163/2006. 
13 In particular, the judgment ruled out the possibility that Asmel s.c.a.r.l. could be 
classified as a body governed by public law, considering the nature of its funding 
and management control. Next, it found that the ‘Asmel system’ did not conform 
to any of the organisational models provided for in Article 33(3a), according to 
the version in force when the contested decision was adopted, because, on the one 
hand, the non-recognised association Asmel was a member of Asmel s.c.a.r.l. and, 
on the other, the consortium agreement was not between ‘municipalities’, since 
they were involved only indirectly in the central purchasing body. That judgment 
also laid down an obligation for the central purchasing body to confine its 
activities to the territory of the founding municipalities or to the provincial 
territory. Lastly, the TAR declared Directive 2014/24/EU inapplicable in the case 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-3/19 
 
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at hand, since, on the basis of the case-law of the Consiglio di Stato (Council of 
State, Italy), the only obligation on the national court where there is an EU 
directive which has not yet been transposed and which recasts the subject matter 
of the case is to refrain from a potentially prejudicial alternative interpretation. 
Essential arguments of the parties to the main proceedings 
14 Asmel s.c.a.r.l. appealed against the judgment of the TAR referred to above, 
entering five grounds of appeal, the last two of which are considered relevant by 
the Council of State for the purposes of the present decision. 
15 By the fourth ground of appeal, Asmel s.c.a.r.l. criticises the judgment under 
appeal for considering the consortium company’s organisational model 
incompatible with the models envisaged for the performance of central purchasing 
bodies’ activities under Article 33(3a). In particular, according to the appellant, 
the judgment incorrectly found that the ‘consortium agreement between 
municipalities’ envisaged by that provision could only be that provided for in 
Article 30 of the TUEL, and not a private-law contract intended to establish a 
consortium in accordance with the provisions of ordinary law, given the general 
private-law capacity of public bodies. Asmel s.c.a.r.l. adds that the participation of 
the municipalities in the consortium agreement in question is not indirect, given 
that they entrust the functions of a central purchasing body to Asmel s.c.a.r.l. by a 
decision of the municipal executive. In this regard, Asmel s.c.a.r.l. also specifies 
that, following the ANAC decision in question, the Asmel association has 
disposed of its shares within the consortium. 
16 By the fifth ground of appeal, on the other hand, the appellant company argues 
that neither the original version of Article 33(3a) nor the more recent version 
thereof impose any territorial restrictions on its operation. According to Asmel 
s.c.a.r.l., the reference to small municipalities contained in the provision in 
question serves only to limit the award obligation to central purchasing bodies. 
Succinct presentation of the reasons for the reference 
17 The Council of State contends that regional or local authorities, which are among 
the contracting authorities listed in Article 3(25) of Legislative Decree 
No 163/2006, may assume the role of central purchasing body under Article 3(34) 
of that legislative decree. Under Article 33(3a), however, there is a derogation 
with regard to small municipalities, which results in a limitation of the 
organisational model for the central purchasing body to which the procurement of 
goods and services may be entrusted. 
18 That rule requires municipalities (originally, according to the previous version, 
municipalities with a population of less than 5 000 inhabitants, but now, according 
to the more recent version, municipalities other than the provincial capital) to use 
central purchasing bodies formed according to precise organisational models. 
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These are, in particular, the union of municipalities provided for in Article 32 of 
the TUEL, where it already exists, and the consortium of municipalities which 
relies on the support of provincial departments. In addition, according to the more 
recent version of Article 33(3a), there is also the possibility of using an aggregator 
or the provincial authorities under Law No 56 of 7 April 2014. 
19 In the Council of State’s view, that requirement imposed on small municipalities 
seems at odds with the possibility of using central purchasing bodies without 
limiting forms of cooperation. Moreover, such a delineation is not justified by the 
nature of the services, which do not involve the exercise of public prerogatives. 
20 Furthermore, the Council of State argues that the national legislation imposes an 
additional limitation on the organisational model of the consortium of 
municipalities. The definition of ‘contracting authority’ given in Article 3(25), in 
which the reference is to consortia made up of public entities only, seems to refer 
to a form of cooperation among municipalities of a public nature, such as that 
provided for in Article 31 of the TUEL, which excludes the participation of 
private entities. In the Council of State’s view, that exclusion may be contrary to 
the principles of EU law on the free movement of services and the principle of 
opening up to competition as far as possible, by permitting only exhaustively 
listed Italian public bodies to provide services that can be classified as an 
economic activity and, in that respect, might be better carried out under a system 
of open competition in the internal market. 
21 Lastly, the Council of State finds that the national legislation does not define a 
scope of operation for central purchasing bodies either in the general provisions or 
in the special provision for small municipalities. Nevertheless, the reference to 
municipalities with a population of less than 5 000 inhabitants contained in the 
original version of Article 33(3a) and the reference to municipalities that are not 
the provincial capital — that is to say, to a territorial characteristic of the member 
entities — contained in the more recent version suggests that the national 
legislation has made reference to a link between the territory of the municipalities 
using the central purchasing body and the scope of that body’s operations. That 
scope would thus be limited to the territory of the municipalities belonging to the 
union of municipalities or forming the consortium. In the Council of State’s view, 
that delineation is also at odds with the principle of free movement of services and 
the principle of opening up to competition as far as possible, since it establishes 
exclusive operating zones for central purchasing bodies. 
22 Based on the above aspects, the referring court has doubts as to whether the 
regulatory framework resulting from Article 33(3a) of Legislative Decree 
No 163/2006, read in conjunction with Article 3(25) of that legislative decree, is 
compatible with the prohibition, enshrined in Article [56] TFEU, of restrictions on 
the freedom to provide services within the European Union and with EU law in 
the field of public procurement, in so far as it concerns service contracts. 
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23 In support of those doubts, the Council of State refers first to the concepts of 
‘undertaking’ and ‘economic activity’ adopted by EU law and the case-law of the 
Court of Justice of the European Union in the matter (see, respectively, judgments 
of 12 December 2013, Case C-327/12; of 6 September 2011, Case C-108/10; and 
of 23 April 1991, Case C-41/90, on the one hand, and judgment of 25 October 
2001, Case C-475/99, on the other). In particular, the Council of State finds that, 
under EU law, a central purchasing body is an undertaking that offers to purchase 
goods and services on behalf of contracting authorities and that, in the present 
case, the remunerative nature of the service provided by Asmel s.c.a.r.l. has been 
established. Indeed, the contracting authorities specified in the decision that the 
consideration for the services provided by the central purchasing body’s electronic 
platform was set at 1.5% of the contract price and would be charged to the 
successful tenderer. 
24 Next, the Council of State recalls that the Court of Justice of the European Union, 
in its judgment of 20 October 2005 in Case C-264/03, described ‘project 
contracting’ — that is, the mandate given to a legal person to purchase goods and 
services in the name and on behalf of the principal — as a provision of services 
within the meaning of EU law (paragraph 44) and declared the French law 
examined therein, which reserved that service solely to exhaustively listed legal 
persons under French law, to be contrary to the principle of equal treatment 
between different service providers (paragraph 61). 
25 Lastly, the Council of State notes that the EU legislature has expressed itself in 
favour of the institution of central purchasing bodies, in particular in recitals 15 
and 16 of Directive 2004/18/EC, with implicit recognition of the possibility of 
more extensive use of that mechanism.