Judgment — ECLI:EU:C:2009:808
Date: 2009-12-23
Language of the case: Italian
Court formation: Fourth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Right of establishment;Approximation of laws;Freedom to provide services;Free movement of workers
Concepts: Principle of proportionality;Contracts excluded from EU rules or subject to special arrangements, but having a cross-border interest
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment Community law – Principles – Equal treatment – Freedom of establishment – Freedom to provide services – Procedures for the award of public contracts – Value of a contract not exceeding the threshold set by Directive 2004/18 (Arts 43 EC and 49 EC) Community law must be interpreted as precluding national legislation which provides that, when a public contract is to be awarded, with a value not exceeding the threshold laid down in Article 7(c) of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, but of certain cross-border interest, both a permanent consortium, within the meaning of the national legislation, and its member companies are automatically excluded from participating in that procedure and face criminal sanctions where those companies have submitted tenders in competition with the consortium’s tender in the context of the same procedure, even if the consortium’s tender was not submitted on behalf of and in the interests of those companies. An automatic exclusion measure of that kind, which concerns only the permanent consortium form and its member companies and is applicable in the event of competing tenders, regardless of whether the consortium concerned participates in the public tendering procedure in question on behalf of and in the interests of the companies which have submitted a tender, constitutes discrimination against that form of consortium, and does not, therefore, observe the principle of equal treatment. In addition, a systematic rule of exclusion, which also entails an absolute obligation on the contracting authorities to exclude the entities concerned, even in cases in which the relationship between those entities has no effect on their conduct in the context of the procedures in which they have participated, is contrary to the Community interest in ensuring the widest possible participation by tenderers in a call for tenders, and goes beyond what is necessary to achieve the objective of ensuring the application of the principles of equal treatment and transparency. Such a rule is not, therefore, compatible with the principle of proportionality. In addition, Articles 43 EC and 49 EC preclude any national measure which, even though applicable without discrimination on grounds of nationality, is liable to prohibit, impede or render less attractive the exercise by Community nationals of the freedom of establishment and the freedom to provide services guaranteed by those provisions of the Treaty. In that connection, a national rule which provides that permanent consortia and their member companies may be automatically excluded, is likely to have a dissuasive effect on economic operators established in other Member States, that it so to say, first, on operators wishing to establish themselves in the Member State concerned through the establishment of a permanent consortium, possibly composed of national and foreign companies, and, second, on operators intending to join consortia of that kind already in existence, in order to be able to participate more easily in public tendering procedures launched by the contracting authorities of that Member State and thereby be able to offer their services more easily. Notwithstanding its legitimate objective of combating possible collusion between the consortium concerned and its member companies, such a restriction, within the meaning of Articles 43 EC and 49 EC, cannot be justified, since it goes beyond what is necessary to achieve that objective. (see paras 37-38, 40-42, 45-46, operative part)