Opinion of the Advocate General — ECLI:EU:C:2005:524
Date: 2005-09-08
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 Approximation of laws – Procedures for the award of public service contracts – Directive 92/50 – Award of contracts (Council Directive 92/50, Art. 29, first para., subparas (e) and (f)) Article 29 of subparagraphs (e) and (f) of the first paragraph of Directive 92/50 relating to the coordination of procedures for the award of public service contracts enables Member States to exclude any candidate who ‘has not fulfilled obligations’ relating to the payment of social security contributions and taxes in accordance with national legal provisions. That provision does not preclude a national law or administrative practice according to which a service provider, who has not fulfilled obligations relating to social security contributions and taxes by having paid in full when the period prescribed for submitting the request to participate in the contract expires, may subsequently regularise his position – pursuant to a tax amnesty or leniency measures adopted by the State, or – pursuant to an administrative arrangement of payment in instalments or debt relief, or – by bringing administrative or legal proceedings, provided that, within the period prescribed by national law or administrative practice, he provides evidence that he has benefited from such measures or arrangement or that he has brought such proceedings within that period. Article 29 of the Directive does not provide in this field for uniform application of the grounds of exclusion mentioned therein at Community level, since the Member States may choose not to apply those grounds of exclusion at all or to incorporate them into national law with varying degrees of rigour. In that context the Member States have the power to make the criteria laid down in Article 29 of the Directive less onerous or more flexible. It is therefore for national rules to specify the content and scope of the obligations at issue and the conditions for their fulfilment. It is also for national rules to determine the date by which or the period within which the persons concerned must have made the payments corresponding to their obligations or must have proved that the conditions for subsequent regularisation have been fulfilled. However, the principles of transparency and equal treatment require that the period be determined with absolute certainty and made public, in order that the persons concerned may know exactly the procedural requirements and be sure that the same requirements apply to all candidates. Furthermore, merely commencing payment at the relevant time, proof of intention to pay or proof of financial capacity to regularise the position after that time are not sufficient. (see paras 23-24, 31-33, 40, operative part)