Opinion of the Advocate General — ECLI:EU:C:2009:512
Date: 2009-09-03
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment 1. Approximation of laws – Procedures for the award of public works contracts, public supply contracts and public service contracts – Directive 2004/18 – Economic operators (European Parliament and Council Directive 2004/18, Art. 1(2)(a) and (8), first and second subparas) 2. Approximation of laws – Procedures for the award of public works contracts, public supply contracts and public service contracts – Directive 2004/18 – Economic operators (European Parliament and Council Directive 2004/18, Art. 1(2)(a) and (8), first and second subparas, and 4(1)) 1. The provisions of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, in particular those in Article 1(2)(a) and (8), first and second subparagraphs, which refer to the concept of ‘economic operator’, must be interpreted as permitting entities which are primarily non-profit-making and do not have the organisational structure of an undertaking or a regular presence on the market – such as universities and research institutes and consortia made up of universities and public authorities – to take part in a public tendering procedure for the award of a service contract. Any person or entity which, in the light of the conditions laid down in a contract notice, believes that it is capable of carrying out the contract, either directly or by using subcontractors, is eligible to submit a tender or put itself forward as a candidate, regardless of whether it is governed by public law or private law, whether it is active as a matter of course on the market or only on an occasional basis and whether or not it is subsidised by public funds. Moreover, first, the mere fact that contracting authorities allow bodies which receive subsidies enabling them to submit tenders at prices appreciably lower than those of competing, unsubsidised, tenderers to take part in a procedure for the award of a public contract does not amount to a breach of the principle of equal treatment. Second, if the Community legislature had intended to require contracting authorities to exclude such tenderers, it would have stated this explicitly. (see paras 40, 42, 45, operative part 1) 2. Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be construed as precluding an interpretation of national legislation which prohibits entities, such as universities and research institutes, which are primarily non-profit-making from taking part in a procedure for the award of a public contract, even though such entities are entitled under national law to offer the services covered by the contract in question. As is apparent from the wording of Article 4(1) of Directive 2004/18, Member States have a discretion as to whether or not to allow certain categories of economic operators to provide certain services. Accordingly, Member States can regulate the activities of entities, such as universities and research institutes, which are non-profit-making and whose primary object is teaching and research. They can, inter alia, determine whether or not such entities are authorised to operate on the market, according to whether the activity in question is compatible with their objectives as an institution and those laid down in their statutes. However, if and to the extent that such entities are entitled to offer certain services on the market, the national legislation transposing Directive 2004/18 into domestic law cannot prevent them from taking part in public procedures for the award of contracts for the provision of those services. (see paras 47-49, 51, operative part 2)