Judgment;Summary — ECLI:EU:C:2023:88
Date: 2023-02-09
Language of the case: Italian
Court formation: Tenth Chamber
Subject matter: Approximation of laws;Public procurement in the European Union
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-53/22 – 1 
Case C-53/22 
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: 
26 January 2022 
Referring court: 
Tribunale Amministrativo Regionale per la Lombardia (Italy) 
Date of the decision to refer: 
7 January 2022 
Applicant: 
VZ 
Defendant: 
CA 
Other parties to the proceedings: 
RT, BO, Regione Lombardia, Regione Liguria 
      
Subject matter of the main proceedings 
Refusal to annul the award of a public contract. 
Subject matter and legal basis of the request 
Article 267 TFEU. 
Questions referred for a preliminary ruling 
1. Does Article 1(3) of Directive 89/665 preclude a competitor who is 
definitively excluded from a contractor selection procedure from being denied the 
possibility of a review of the refusal to annul the award, when it is intended to 
show that the successful tenderer, and all other shortlisted competitors, are guilty 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-53/22 
 
2  
of grave professional misconduct, consisting of having entered into 
anticompetitive agreements which were determined by a court only after the 
competitor had been excluded, in order to have the opportunity to participate in a 
rerun of the procedure? 
2. Does Article 1(3) of Directive 89/665 and the principles [of European Union 
law] on the safeguarding of competition preclude an administrative court from the 
scrutiny of a review, requested by a competitor definitively excluded from a 
contractor selection procedure, of the contracting authority’s refusal to review 
measures which it adopted itself, with regard to the admission of and award to 
competitors who have entered into anticompetitive agreements, determined by a 
court, in the same sector as the tender procedure? 
Provisions of European Union law and case-law relied on 
Article 101 TFEU. 
Article 18(1) and Article 57(4)(c) and (d) of Directive 2014/24/EU. 
Recitals 3 and 17, Article 1(1) and (3) and Article 2a(2) of Directive 2007/66/EU. 
Judgments of the Court of Justice in Cases C-465/11, C-100/12, C-689/13, 
C-355/15, C-124/17 and C-425/18. 
Provisions of national law relied on 
Codice dei contratti pubblici (Italian Public Procurement Code) – Decreto 
Legislativo n. 50/2016 (Legislative Decree No 50/2016), which transposed 
Directives 2014/23/EU, 2014/24/EU and 2014/25/EU in Italy. 
Article 80 sets out the exclusion grounds and, in paragraph 5, provides that 
contracting authorities must exclude an economic operator from participation in a 
procurement procedure in any of the situations listed, including, in point (c), 
where the contracting authority can demonstrate by appropriate means that the 
economic operator is guilty of grave professional misconduct such as to render its 
integrity or reliability questionable. 
Article 100 of the Codice di procedura civile (Italian Code of Civil Procedure), 
which provides that a party bringing or opposing a claim must have an interest in 
that claim. 
Codice del processo amministrativo (Italian Code of Administrative Procedure) – 
Decreto Legislativo n. 104/2010 (Legislative Decree No 104/2010). 
Article 35(1)(b) provides that the court must declare the application inadmissible, 
even of its own motion, where there is a lack of interest or where there are other 
reasons preventing a decision on the substance of the case. 
VZ 
 
3 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 18 December 2018, CA, the contracting authority (the defendant) issued an 
open procedure for the provision of a helicopter rescue service. 
2 On 16 January 2019, the company VZ (the applicant) brought an action against 
the contract notice, in so far as it required certification that VZ did not possess at 
that time. The action was dismissed by judgment of the TAR Lombardia 
(Regional Administrative Court, Lombardy, Italy), upheld by the Consiglio di 
Stato (Council of State, Italy). 
3 In the meantime, the Autorità Garante della Concorrenza e del Mercato 
(Competition Authority, Italy; ‘the AGCM’) had imposed fines on several 
undertakings competing in the abovementioned procedure after finding that they 
had been in serious breach of Article 101 TFEU during the period between 2001 
and August 2017, consisting, inter alia, of a price-fixing agreement for helicopter 
services. Conversely, it did not find any agreement restricting competition. 
Therefore, on 2 March 2020, the three lots were awarded to RT (lots 1 and 2) and 
BO (lot 3). 
4 RT and BO, along with JF, another company which is not a party to the main 
proceedings, brought actions against the fines imposed on them before the TAR 
Lazio (Regional Administrative Court, Lazio, Italy). All the actions were 
dismissed by Lazio Regional Administrative Court and, except for one case which 
is still pending, by the Council of State. 
5 On 1 June 2020, VZ notified CA of one of the judgments handed down by Lazio 
Regional Administrative Court. It also provided documentary evidence that in 
October 2019, it had obtained the certification required in order to participate in 
the call for tenders, which it had previously lacked. 
6 The applicant’s interest is not in being awarded the contract, but in the entire 
tender procedure being annulled, so as to be able to participate in a rerun of that 
procedure. 
The essential arguments of the parties in the main proceedings  
7 RT and BO claim that the price fixing was not intended to influence the price of 
the services and had not been used by the contracting authorities to set the reserve 
price in the call for tenders. They further submit that such price fixing was neither 
binding on the contracting authorities nor capable of restricting competition. 
8 VZ contends that the judgment of Lazio Regional Administrative Court that it 
notified to CA materially affects the assessment of the integrity and reliability of 
the successful tenderer in the performance of the helicopter rescue service, even 
though the award had already been made, given that the court had determined the 
existence of grave professional misconduct. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-53/22 
 
4  
Succinct presentation of the reasoning in the request for a preliminary ruling 
9 The applicant was definitively excluded from the tender procedure and so was not 
entitled to contest the award or indeed any decisions made during the procedure. 
However, in the present case the referring court has doubts for the following 
reasons. 
10 In the light of the case-law that has developed on the basis of the judgments of the 
Court of Justice in Cases C-100/12 and C-689/13, the Italian courts have held that, 
in a tender in which only two competitors took part, it is possible to examine a 
review aimed at obtaining a rerun of the procedure, brought by a participant 
excluded for not meeting the minimum requirements. However, even with this 
new approach, the interest in examining such a review requires that the complaints 
be raised in a single set of review proceedings, and that the competitor has not 
been definitively excluded before seeking that review, in line with the Court’s 
ruling in Case C-355/15. On that basis, the application should be declared 
inadmissible in the present case. 
11 At the time of the procedure, the successful tenderer and all the shortlisted 
competitors in theory could have been excluded owing to their participation in an 
anticompetitive agreement. Indeed the Court has previously ruled that an 
infringement of competition rules, determined and penalised by the AGCM by a 
decision upheld by the courts, amounts to grave professional misconduct by an 
economic operator (Case C-425/18). At that point, however, the existence and 
relevance of the agreement had not yet been determined by a court – a fact that 
prevented the applicant from contesting the admission of the successful tenderer 
and the other parties to the agreement. That leads the referring court to doubt the 
reasonableness of that preclusion, which essentially depends on the time it takes 
for the agreement to be determined – in other words, on a random set of 
circumstances. 
12 Moreover, in Case C-355/15, a competitor who was definitively excluded had 
challenged the award – and therefore a decision closely linked to its exclusion and 
issued in the course of those proceedings. In the present proceedings, however, the 
applicant contests the fact that the contracting authority held as irrelevant – for the 
purpose of the annulment of the award – a supervening event extraneous to the 
procedure from which it was excluded (namely the judgment by which Lazio 
Regional Administrative Court upheld the fines imposed by the AGCM). This 
leads the referring court to doubt the possibility of applying the principles 
affirmed in Case C-355/15 to the present case. 
13 Lastly, in Case C-333/18, the Court held that a review sought by a competitor who 
was ranked third, contesting the admission of the two highest-ranking candidates, 
was admissible, even though its bid was deemed to be irregular, and even though 
there were other competitors below it in the ranking, since if the action by the 
unsuccessful tenderer were held to be well founded, the contracting authority 
could decide to cancel the procurement procedure and open a new one 
VZ 
 
5 
(paragraph 28). The situation of the present applicant, for the purpose of assessing 
its interest in the review, would thus appear comparable to the one at issue in Case 
C-333/18. 
14 The possibility for a competitor who has been definitively excluded of contesting 
whether the successful tenderer is eligible to participate does not appear to be 
precluded by Directive 2007/66/EC, which seeks to make review procedures 
available to any person having or having had an interest in obtaining a particular 
contract (recital 17 and Article 1(3)), as in the applicant’s case. Furthermore, 
tenderers are deemed to be concerned if they have not yet been definitively 
excluded (Article 2a(2)), but only for the purpose of identifying those who should 
be notified of the contract award decision, and not for the purpose of the 
admissibility of a review.