Judgment;Summary — ECLI:EU:C:2022:372
Date: 2022-05-12
Language of the case: Italian
Court formation: Fourth Chamber
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-719/20 – 1 
Case C-719/20 
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:  
30 December 2020 
Referring court:  
Consiglio di Stato (Council of State, Italy) 
Date of the decision to refer:  
18 November 2020 
Appellant:  
Comune di Lerici 
Respondents:  
Provincia di La Spezia, IREN SpA, ACAM Ambiente SpA 
  
Subject of the action in the main proceedings 
Appeal against judgment No 847 of the Tribunale amministrativo regionale 
Liguria (Regional Administrative Court, Liguria, Italy) of 6 November 2019, 
which dismissed the action brought by the Comune di Lerici aimed at setting aside 
the decision of the Consiglio provinciale di La Spezia (La Spezia Provincial 
Council) in which the company ACAM Ambiente SpA was selected as operator of 
the municipal waste service for the municipality of Lerici on the basis of an in-
house award. 
Subject matter and legal basis of the reference 
In the light of Article 267 TFEU, the referring court seeks clarification as to the 
compatibility with EU law of the rules on awarding public contracts to legal 
persons, particularly with regard to the concept of ‘similar control’.  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-719/20 
 
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Question referred 
Does Article 12 of Directive 2014/24/EU of 26 February 2014 preclude national 
legislation which imposes a concentration of companies providing local public 
services of economic interest, as a result of which the economic operator 
succeeding the initial concession holder following transparent corporate 
transactions, including mergers and acquisitions, continues to operate the services 
until the agreed date, if: 
(a) the initial concession holder is a company awarded the contract in-house on 
the basis of similar control where several other public authorities are shareholders 
in that company; 
(b) the new economic operator has been selected by means of a public call for 
tenders; 
(c) as a result of the concentration, the requirements for similar control where 
several other public authorities are shareholders in that company no longer apply 
in relation to some of the local authorities which originally awarded the service in 
question. 
Provisions of EU law relied on 
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; in 
particular Article 12 (‘Public contracts between entities within the public sector’), 
which lays down the requirements for the in-house award – that is to say, a direct 
award without competition. 
Case-law of the Court of Justice relied on 
Judgment of the Court of 18 November 1999, Teckal, C-107/98 (essential activity 
and similar control requirements).  
Judgment of the Court of 13 November 2008, Coditel Brabant SA, C-324/07 
(similar control where several other public authorities are shareholders). 
Judgment of the Court of 17 July 2008, Commission v Italy, C-371/05 (‘decisive 
influence’). 
Judgment of the Court of 10 September 2009, Sea Srl v Comune di Ponte Nossa, 
C-573/07 (in order to maintain similar control, the structure of the share capital of 
the company awarded the contract must remain the same during the relevant 
period). 
Judgment of the Court of 11 January 2005, Stadt Halle, C-26/03 (in principle, 
similar control is precluded where there are both private and public shareholders). 
COMUNE DI LERICI 
 
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Provisions of national law cited 
Decreto-legge 13 agosto 2011, n. 138 (Decree-Law No 138 of 13 August 2011), 
published in the Gazzetta ufficiale della Repubblica italiana No 188 of 13 August 
2011 – General Series, and in particular Article 3-bis(2-bis): ‘Any economic 
operator who universally or partially succeeds the initial concession holder 
following transparent corporate transactions, including mergers and acquisitions, 
without prejudice to fulfilment of the original qualitative criteria, shall continue to 
operate the services until the agreed date.’ 
Decreto legislativo 18 agosto 2000, n. 267, ‘Testo unico delle leggi 
sull’ordinamento degli enti locali’ (Legislative Decree No 267 of 18 August 2000, 
‘Consolidated law on local authorities’), published in the Gazzetta ufficiale della 
Repubblica italiana No 227 of 28 September 2000 – Ordinary Supplement 
No 162, and in particular Article 113. 
Decreto legislativo 3 aprile 2006, n. 152, ‘Norme in materia ambientale’ 
(Legislative Decree No 152 of 3 April 2006 on environmental standards), 
published in the Gazzetta ufficiale della Repubblica italiana No 88 of 14 April 
2006 – Ordinary Supplement No 96, and in particular Article 200. 
Decreto Legislativo 18 aprile 2016, n. 50, ‘Attuazione delle direttive 2014/23/UE, 
2014/24/UE e 2014/25/UE sull’aggiudicazione dei contratti di concessione, sugli 
appalti pubblici e sulle procedure d’appalto degli enti erogatori nei settori 
dell’acqua, dell’energia, dei trasporti e dei servizi postali, nonché per il riordino 
della disciplina vigente in materia di contratti pubblici relativi a lavori, servizi e 
forniture’ (Legislative Decree No 50 of 18 April 2016 implementing Directives 
2014/23/EU, 2014/24/EU and 2014/25/EU on the award of concession contracts, 
on public procurement and on procurement procedures of entities operating in the 
water, energy, transport and postal services sectors, and restructuring the 
provisions applicable to public works contracts, public service contracts and 
public supply contracts), published in the Gazzetta ufficiale della Repubblica 
italiana No 91 of 19 April [2016] – General Series – Ordinary Supplement 
No 10), and in particular Article 5. 
Decreto legislativo 19 agosto 2016, n. 175, ‘Testo unico in materia di società a 
partecipazione pubblica’ (Legislative Decree No 175 of 19 August 2016, 
‘Consolidated law on publicly owned companies’), published in the Gazzetta 
ufficiale della Repubblica italiana No 210 of 8 September 2016 – General Series, 
and in particular Article 2(1)(c) and (d). 
Legge 23 dicembre 2014, n. 190, ‘Disposizioni per la formazione del bilancio 
annuale e pluriennale dello Stato (legge di stabilità 2015)’ (Law No 190 of 
23 December 2014, ‘Provisions for the preparation of the annual and multi-annual 
State budget (Stability Law 2015)’), published in the Gazzetta ufficiale della 
Repubblica italiana No 300 of 29 December 2014 – General Series – Ordinary 
Supplement No 99, and in particular Article 1(611) and (612). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-719/20 
 
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Succinct presentation of the facts and the main proceedings 
1 ACAM, a public limited company under full public ownership and whose share 
capital was distributed among several local authorities in the province of La 
Spezia, operated public services for those local authorities through its subsidiaries.  
2 Specifically, ACAM managed the integrated waste cycle in the municipality of 
Lerici through its subsidiary ACAM Ambiente SpA, on the basis of an in-house 
award (pursuant to the decision of 15 June 2005), due to expire in 2028. 
3 Because of a crisis situation, ACAM was obliged to enter into a debt restructuring 
agreement with its creditors, as permitted under Italian bankruptcy law. Pursuant 
to that agreement, with a view to conducting a concentration, it issued a public 
call for tenders from other companies under public ownership operating public 
services in the Italian market. The successful tenderer was IREN, a state-
controlled company listed on the stock market. 
4 In such cases, Article 3-bis(2-bis) of Decree-Law No 138 of 13 August 2011 
provides for continuity of management between the original company awarded the 
contract and its successor. 
5 Under a special investment agreement signed on 29 December 2017, the local 
authority shareholders sold their ACAM shares to IREN and acquired, by 
subscribing for a reserved capital increase, an equivalent percentage of IREN 
shares. The ACAM shares thus became IREN shares and IREN, through ACAM’s 
subsidiaries – which then became IREN subsidiaries – continued to operate the 
services originally awarded to them. 
6 The Comune di Lerici, opposed to the concentration, signed the investment 
agreement solely with regard to the sale of its ACAM shares to IREN, and 
subsequently sold them on 11 April 2018. Since it was no longer a shareholder of 
IREN, which was awarded the service, it thus concluded that the conditions for 
the in-house award no longer existed. 
7 In parallel, the Provincia di La Spezia, by its decision of 6 August 2018, selected 
ACAM Ambiente SpA as operator of the integrated waste service in the 
municipality of Lerici until 31 December 2028, on the basis of an in-house award. 
8 The Comune di Lerici challenged that decision, which it considered unlawful, 
before the TAR Liguria (Regional Administrative Court, Liguria). 
9 By its judgment of 6 November 2019, the TAR Liguria (Regional Administrative 
Court, Liguria) dismissed the action brought by the Comune di Lerici, finding that 
the in-house award of the service in question was lawful both when it was made, 
and after the local authority ceased to be a shareholder of the company 
subsequently awarded the contract. 
COMUNE DI LERICI 
 
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10 The Comune di Lerici brought an appeal against that judgment before the 
referring court. It raised various complaints, the first of which concerned the 
infringement of Article 12 of Directive 2014/24/EU and Article 4 of Legislative 
Decree No 175 of 19 August 2016. 
Principal arguments of the parties to the main proceedings 
11 The Comune di Lerici claims that the decision of the Provincia di La Spezia is 
unlawful because it awarded the waste management service directly, without any 
tendering procedure, since the conditions for the original direct in-house award of 
the service to ACAM Ambiente SpA (originally a subsidiary of ACAM) no longer 
existed. 
12 The Comune di Lerici, having sold its ACAM shares to IREN, disposed of the 
shareholding it acquired in IREN, and therefore is no longer a shareholder of 
IREN. In that respect, any link between the local authority and that company – 
and therefore any possible control – has disappeared, such that the prerequisites 
for the in-house award have also ceased to exist, particularly as regards similar 
control.  
13 The respondents submit that the decision of the Provincia di La Spezia is lawful, 
pointing out that IREN was selected as the ‘economic operator’ for the 
concentration following a public call for tenders. They argue that the final 
outcome of the transaction (the award of the service) had already been determined 
by the result of the call for tenders, in a manner entirely consistent with the 
principles of EU law, and not from the award made by the Provincia di La Spezia. 
Accordingly, no unlawful direct award has taken place. 
14 The fact that the call for tenders for selecting the economic operator for the 
concentration was not intended to award the service in question, or indeed any 
service, is immaterial, since that was the indirect intention. 
Succinct presentation of the reasons for the request for a preliminary ruling 
15 The referring court points out that under Italian law, the integrated municipal 
waste management service, pursuant to Article 200 of Legislative Decree No 152 
of 3 April 2006, is currently operated by the regional authorities, which identify 
suitable territorial areas. In the Liguria region, where the events in question took 
place, the territorial areas coincide with the Provinces, which operate the service 
for the municipalities of which they are composed. As contracting authorities 
themselves, they must always issue a public call for tenders or make an in-house 
award where this is permitted. 
16 The referring court notes that, under national law, local authorities (such as 
municipalities) may award the waste management service by setting up a limited 
company under public ownership for that purpose. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-719/20 
 
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17 Moreover, in 2014 the national legislature, in the matter of corporate 
shareholdings held by public bodies, ruled that local authorities should seek to 
reduce the number of companies and corporate shareholdings directly or indirectly 
owned in order to limit public spending. One of the criteria specifically provided 
for is the concentration of companies providing local public services of economic 
interest. 
18 The referring court observes that, in the case at issue, the conditions for joint 
similar control had already ceased to exist at the time of the concentration, 
because the shareholding acquired in IREN was negligible and incapable of 
influencing that company’s decisions. Conversely, IREN is a public limited 
company listed on the Italian stock exchange. Therefore, its shareholders may be 
private individuals who decide to buy its shares without being subject to any 
particular formality. 
19 The referring court recalls that the national legislation transposed Directive 
2014/24/EU, and in particular Article 12 thereof, by defining similar control and 
joint similar control in line with the provisions of that article. 
20 The referring court also cites various judgments of the Court of Justice in the 
matter of similar control and fulfilment of the necessary conditions, whereas in its 
own case-law there is no precedent for cases similar to the one at issue. 
21 For those reasons, the referring court concurs with the respondents’ argument. 
22 The referring court identifies the promotion of competition as a fundamental 
objective of the EU law in question. In the award of public services, this is 
achieved when several operators compete – or are able to compete – regardless of 
the legal characterisation of the means by which it happens. 
23 According to the referring court, it is irrelevant whether a given service (in this 
case, the one relating to the Comune di Lerici) is awarded by means of a call for 
tenders covering that particular service – considered in isolation or together with 
the services for the other municipalities concerned – or whether it is awarded by 
means of a call for tenders aimed at transferring the shares in the company 
providing those services, because competition is guaranteed in either case. 
24 The referring court notes, inter alia, the importance for the corresponding 
European market of the economic sector of the provision of public services 
relating to integrated waste management. In the light of the foregoing, it finds it 
necessary – in the interests of clarity and legal certainty – to refer the matter to the 
Court of Justice so as to ascertain whether the national rules on in-house awards 
are compatible with EU law. The question is material for the decision: if the 
argument put forward by the Comune di Lerici is correct, the relevant ground of 
appeal should be allowed and the contested decision should be set aside; further, 
the Provincia di La Spezia would have to make a new award by lawful means, via 
a public call for tenders or in-house award, to a party who meets the criteria. 
COMUNE DI LERICI 
 
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Taking the opposite view, the ground of appeal should be dismissed, since the 
award would have been made lawfully.