Judgment;Summary — ECLI:EU:C:2020:470
Date: 2020-06-11
Language of the case: Italian
Court formation: Tenth Chamber
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-219/19 - 1 
Case C-219/19 
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:  
11 March 2019 
Referring court:  
Tribunale Amministrativo Regionale per il Lazio (Lazio Regional 
Administrative Court, Italy) 
Date of the decision to refer:  
16 January 2019 
Applicant:  
Parsec Fondazione Parco delle Scienze e della Cultura 
Defendants:  
Ministero delle Infrastrutture e dei Trasporti 
Autorità nazionale anticorruzione (ANAC) 
  
Subject of the action in the main proceedings 
Action for annulment of the measure by which the applicant foundation, Parsec 
Fondazione Parco delle Scienze e della Cultura (or ‘the Foundation’), was refused 
inclusion in the national list of persons able to take part in tendering procedures 
for the award, by local authorities, of services relating to seismology and 
classification of territory according to seismic risk, services that fall into the 
category of ‘architectural and engineering services’. 
Subject matter and legal basis of the reference 
Whether a national provision that limits the economic operators able to take part 
in tendering procedures for the award of certain services (in this case, 
‘architectural and engineering services’), on the basis of their legal form (in this 
case, exclusion of non-profit bodies and those that are not established in certain 
company forms), is compatible with Directive 2014/24/EU. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING - CASE C-219/19 
 
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Article 267(2) TFEU. 
Question referred 
‘Does recital 14 in conjunction with Articles 19(1) and 80(2) of Directive 
2014/24/EU preclude a legal provision such as Article 46 of Legislative Decree 
No 50 of 18 April 2016, by which Italy transposed Directives 2014/23/EU, 
2014/24/EU and 2014/25/EU into national law, which permits only economic 
operators created in the legal forms indicated in that provision to take part in 
tendering procedures for the award of ‘architectural and engineering services’, 
which has the effect of excluding from participation in such procedures economic 
operators that perform such services using a different legal form?’ 
Provisions of EU law relied on 
Recital 14; Article 19(1) and Article 80(2) of 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. 
Provisions of national law relied on 
Decreto Legislativo del 18 aprile 2016, n. 50 – Codice dei contratti pubblici 
(Legislative Decree No 50 of 18 April 2016 – Public Procurement Code) 
- Article 3(1)(p), which defines an ‘economic operator’ as any natural or legal 
person or public entity or group of such persons or entities, including any 
temporary association of undertakings, or entity without legal personality, 
including a European economic interest group (EEIG), which offers the execution 
of works and/or a work, the supply of products or the provision of services on the 
market. 
- Article 3(1)(vvvv), which defines as ‘architectural and engineering services and 
other technical services’ the services reserved for economic operators performing 
a regulated profession in accordance with Article 3 of Directive 2005/36/EC. 
- Article 45(1), according to which: ‘Participation in public procurement 
procedures is open to the economic operators listed in Article 3(1)(p), and 
economic operators established in other Member States created in accordance with 
the legislation applicable in their respective countries. Economic operators and 
groups of economic operators, including temporary associations of such groups, 
that are authorised to perform the services covered by the procurement procedure 
on the basis of the legislation of the Member State in which they are established, 
may take part in public procurement procedures even in the case that they should 
have been set up as natural or legal persons, in accordance with this Code’.  
PARSEC FONDAZIONE 
 
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- Article 46(1), according to which participation in procedures for the award of 
architectural and engineering services is open to the following:  
– sole traders or groups of such individuals, companies of professionals in the 
form of partnerships or cooperatives, engineering companies, in the form of 
limited companies, consortia, EEIGs, and temporary groups of the 
abovementioned forms, which provide public and private customers operating 
on the market with engineering and architectural services and associated 
technical and administrative activities; 
– providers of engineering and architectural services identified using CPV codes 
from 74200000-1 to 74276400-8 and from 74310000-5 to 74323100-0 and 
74874000-6 established in other Member States, created in accordance with the 
legislation applicable in their respective countries; 
– temporary groups made up of the abovementioned types of individuals and 
structures. 
- Articles 3 and 6 of Decreto del Ministro delle Infrastrutture e Trasporti n. 263 
del 2 dicembre 2016 (Decree No 263 of the Ministry of Infrastructure and 
Transport of 2 December 2016), on the requirements for being included in the 
national list of persons that are able to take part in tendering procedures for award 
of architectural and engineering services. 
Succinct presentation of the facts and the main proceedings 
1 The applicant is a foundation — a non-profit private law body — which, using 
highly qualified personnel, manages a seismology observatory for the detection of 
seismic activity and performs functions associated with territorial zoning and the 
prevention of seismic risk, in cooperation with the Istituto Nazionale di Geofisica 
e Vulcanologia (National Institute of Geophysics and Volcanology, INGV) and 
certain universities, and works with various local bodies. 
2 On 25 January 2018, wishing to take part in public procurement procedures for the 
award of territorial seismic zoning services, the Foundation asked the Autorità 
Nazionale Anticorruzione (National Anti-Corruption Authority, ‘the ANAC’) to 
include it in the national list of persons eligible to take part in tendering 
procedures for the award of ‘architectural and engineering services’, a category 
covering the activities performed by the Foundation. 
3 By a measure of 15 February 2018, the ANAC refused the request, declaring that 
the applicant, as a non-profit foundation, does not fall within the concept of 
‘economic operators’ that can be awarded contracts for architectural and 
engineering services in accordance with Article 46(1) of Legislative Decree No 
50/2016 and Article 6 of Ministerial Decree No 263/2016. 
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4 The applicant challenged that measure before the referring court, contending that 
the Italian legislation did not comply with EU law. 
Succinct presentation of the reasons for the request for a preliminary ruling 
5 The referring court notes first, in general terms, that the Court of Justice has made 
the following findings in relation to the concept of ‘economic operator’ for the 
purposes of the award of public procurement contracts: 
- ‘the provisions of Directive 2004/18 [now replaced by Directive 2014/24/EU], 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’ (paragraph 45 of the judgment of 23 December 2009, Case 
C-305/08, EU:C:2009:807); 
- ‘Directive 2004/18 must be construed as precluding an interpretation of national 
legislation, such as that at issue in the main proceedings, 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’ (paragraph 51, ibid.). 
6 Those principles have been transposed by the Italian legislature in Article 45 of 
Legislative Decree No 50/2016, which lays down a broad general definition of 
‘economic operator’. In abstract terms, that definition can, per se, include non-
profit organisations such as the applicant. 
7 However, Article 46 of that legislative decree states that tendering procedures for 
the award of architectural and engineering services are open only to professionals 
and natural persons enrolled on the relevant professional registers, engineering 
companies or companies created by such professionals, without prejudice to the 
fact that the latter must be profit-making companies created in accordance with 
Book V of the Italian Civil Code, or European economic interest groups (EEIGs), 
temporary groups or stable consortia, provided that they are constituted from 
among the abovementioned engineering companies or companies regulated by 
Book V of the Italian Civil Code. 
8 Such a legislative context formally excludes participation in the tendering 
procedures in question by non-profit bodies, such as foundations, governed by 
Book I of the Civil Code. That exclusion is confirmed by Ministerial Decree No 
263/2016, which, in regulating the conditions and requirements for being included 
in the national list of persons that are able to take part in tendering procedures for 
PARSEC FONDAZIONE 
 
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architectural and engineering services, indicates only those persons listed in 
Article 46 of Legislative Decree No 50/2016.  
9 The referring court notes that the Italian legislature has thus created ‘special rules’ 
for procurement contracts of this type, characterised by a concept of ‘economic 
operator’ (potential tenderer) that is narrower than the concept generally valid in 
relation to procurement contracts. 
10 That said, the referring court asks whether the principle stated by the Court of 
Justice in the judgment in Case C-305/08, transposed into the general Italian 
legislation, must be applied automatically or whether, on the contrary, an 
exemption can be applied in certain specific cases. 
11 In that regard, the referring court notes, first, that the literal wording of 
Article 19(1) and Article 80(2) of Directive 2014/24/EU (Article 80(2) relating to 
the award of design services) seems, even if only by implication, to allow the 
Member States to limit participation in tendering procedures solely to natural 
persons and certain legal persons. This is without prejudice to the fact that, in such 
a case, a foreign economic operator, authorised in its own country to perform, in a 
different legal form, the service covered by the tendering procedure, must in any 
case be permitted to take part in that procedure. 
12 Secondly, the referring court emphasises that the limitation imposed by the Italian 
legislature, on which the main proceedings turn, can be justified by the sensitivity 
of the services in question, the significant degree of professionalism required to 
guarantee the quality of those services and the presumption that the persons 
carrying out those services on a continuous professional basis, subject to 
remuneration, are more reliable because of the continuity of their activities and the 
constant updating of their professional expertise. 
13 Thirdly, in terms of the existence of a cross-border interest for the purposes of 
referral to the Court, the referring court notes that it is undoubtedly true that 
economic operators originating in another Member State can take part in tendering 
procedures for the award of the services in question even if they do not have one 
of the legal forms listed in Article 46 of Legislative Decree No 50/2016. This right 
exists on the basis of the general clause in Article 45 of that legislative decree, 
according to which ‘economic operators and groups of economic operators, 
including temporary associations of such groups, that are authorised to provide 
the service covered by the procurement procedure on the basis of the legislation 
of the Member State in which they are established, may take part in public 
procurement procedures even in the case that they should have been set up as 
natural or legal persons, in accordance with this Code’. 
14 However, it should be considered, on the one hand, that foreign economic 
operators could feel obliged, in order to be involved in tendering procedures of 
this type conducted by an Italian contracting authority, to set up in advance in 
Italy, taking one of the legal forms indicated in Article 46. On the other hand, the 
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exclusion of certain national economic operators from tendering procedures could 
have a distortive effect on competition, in relation to a type of service that is also 
of significant interest for foreign economic operators. This is all the more so if it is 
considered that the amount above which the competition procedure assumes 
European relevance is relatively modest (varying from EUR 135 000.00 to 
EUR 209 000.00, depending on whether or not the contracting authority is part of 
central government). 
15 Moreover, even in the case examined by the Court in the abovementioned 
judgment in Case C-305/08, the Italian provision being disputed (Article 34 of 
Legislative Decree No 163/2006) did not impose any limitation on participation 
by foreign economic operators, provided that they are created in accordance with 
the legislation of their State of origin. That provision in fact only precluded Italian 
economic operators created in forms different from those indicated by the 
legislation from taking part in tendering procedures for award of public 
procurement contracts. The Court held, inter alia, that the amount payable for the 
services covered by the tendering procedure was not relevant for the purposes of 
determining whether it had jurisdiction to rule on the question referred, given that 
it was not even mentioned in the judgment. 
16 Fourth and lastly, in terms of the relevance of the question referred, the referring 
court notes that, since the measure being challenged is based on limitation ex lege 
of the persons eligible for inclusion in the national list of operators able to take 
part in tendering procedures for the award of architectural and engineering 
services, it is crucial to know whether that limitation is compatible with EU law, 
as the referring court asserts, or whether it is not. If it is not compatible, the 
referring court must annul the measure being challenged, and the applicant must 
be included in the relevant list.