Information;Order — ECLI:EU:C:2020:508
Date: 2020-06-30
Language of the case: Italian
Court formation: Ninth Chamber
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-618/19 — 1 
Case C-618/19 
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:  
16 August 2019 
Referring court:  
Consiglio di Stato (Italy) 
Date of the decision to refer:  
4 July 2019 
Applicant:  
Ge.Fi.L. — Gestione Fiscalità Locale SpA 
Defendant:  
Regione Campania 
Other parties to the proceedings: 
ACI — Automobile Club d’Italia 
ACI Informatica SpA 
ACI di Napoli and Others 
Subject of the action in the main proceedings 
Appeal against the judgment of the Tribunale amministrativo regionale (Regional 
Administrative Court) (TAR) dismissing the action brought against the agreement 
with which the Regione Campania (Campania Regional Authority) awarded a 
contract for the provision of certain services relating to the management of vehicle 
tax directly to the Automobile Club d’Italia (ACI), for pecuniary interest without a 
prior call for tenders. 
Subject matter and legal basis of the reference 
The interpretation of EU law as regards its compatibility with a national provision 
that allows a regional authority to award a contract for the provision of services 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-618/19 
 
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relating to the management of vehicle tax to a non-economic public body directly 
without a call for tenders. 
Article 267 TFEU 
Question referred for a preliminary ruling 
Does a regional provision such as Article 1(121) of the legge della Regione 
Campania 7 agosto 2014, n. 16 (Campania Regional Law No 16 of 7 August 
2014), which allows a contract for the provision of services relating to the 
management of vehicle tax to be awarded directly by the Campania Regional 
Authority to the Automobile Club d’Italia, infringe EU law and, in particular, the 
principles of freedom to provide services and the greatest possible opening up to 
competition in connection with public service contracts? 
Provisions of EU law cited 
Articles 1(6) and 12(4) and recital 31 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 cited 
Article 1(121) of legge della Regione Campania 7 agosto 2014, n. 16 (Campania 
Regional Law No 16 of 7 August 2014), pursuant to which: ‘For the management 
of vehicle tax, the Giunta regionale (Regional Council) shall be authorised to enter 
into a three-year agreement with the [ACI], … a non-economic public body 
responsible for providing services of public interest …’ 
Article 2 of decreto ministeriale 25 novembre 1998, n. 418 (Ministerial Decree 
No 418 of 25 November 1998), according to which regional authorities can 
choose whether to carry out activities relating to the assessment and collection of 
vehicle tax:  
- directly, if necessary using the resources, offices and facilities of another public 
body, or  
- through concessionaires identified by the regional authorities on the basis of 
tendering procedures provided for in the rules on public procurement. 
Article 15 of legge 7 agosto 1990, n. 241 (Law No 241 of 7 August 1990), 
pursuant to which public administrative authorities may at any time enter into 
agreements among themselves with a view to laying down rules governing 
cooperation in activities of common interest. 
GE.FI.L. 
 
3 
Decreto legislativo 18 aprile 2016, n. 50 (Legislative Decree No 50 of 18 April 
2016) establishing the Codice dei contratti pubblici (Public Procurement Code), 
and particularly Article 5(6) thereof: ‘A contract concluded exclusively between 
two or more contracting authorities shall fall outside the scope of this Code where 
all of the following conditions are fulfilled:  
(a) the contract establishes or implements cooperation between the participating 
contracting authorities or contracting entities with the aim of ensuring that public 
services they have to perform are provided with a view to achieving objectives 
they have in common; 
(b) the implementation of such cooperation is governed solely by considerations 
relating to the public interest; 
(c) the participating contracting authorities or contracting entities perform on the 
open market less than 20% of the activities to which the cooperation relates.’ 
Legge 20 marzo 1975, n. 70 (Law No 70 of 20 March 1975), Part IV of the table 
in the Annex, according to which the ACI is one of the public bodies responsible 
for the provision of services of public interest. 
Regio decreto-legge 15 marzo 1927 n. 436 (Royal Decree-Law No 436 of 
15 March 1927), converted into law by legge 19 febbraio 1928, n. 510 (Law 
No 510 of 19 February 1928), pursuant to which the ACI is responsible for 
keeping the Public Vehicle Register. 
Article 5 of the ACI’s Statue, according to which it manages in-house the Public 
Vehicle Register and ‘services relating to vehicle tax entrusted to the ACI by the 
regional authorities …’ 
Outline of the facts and the main proceedings 
1 Ge.Fi.L. SpA is a company that provides support services for the management of 
vehicle tax on behalf of various Italian regional authorities. 
2 It challenged before the competent TAR the agreement with which, on 
28 December 2017, the Campania Regional Authority awarded a contract for the 
provision of certain services relating to the management of vehicle tax to the ACI 
for pecuniary interest, without first organising a call for tenders. 
3 The action was dismissed by the TAR, which considered that the legal status of 
the ACI is that of a non-economic public body whose tasks, as laid down in its 
Statute, includes the operation of services relating to the management of vehicle 
tax. Accordingly, the TAR found that the contested agreement establishes 
cooperation between public bodies the purpose of which is to ensure that a public 
task which they all have to perform is carried out, and, as such, it does not fall 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-618/19 
 
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within the scope of EU or national procurement law; that finding is not called into 
question by the fact that the cooperation takes place for pecuniary interest. 
The essential arguments of the parties to the main proceedings 
4 Ge.Fi.L. appealed against the judgment before the referring court, the Consiglio di 
Stato (Council of State, Italy), reiterating the pleas in law put forward at first 
instance and submitting that the TAR had incorrectly concluded that the 
conditions under which Article 5(6) of Legislative Decree No 50/2016, 
transposing Directive 2014/24/EU, exempts cooperation agreements between 
public authorities or bodies (‘public-public partnerships’) from tendering 
procedures were fulfilled.  
5 In this regard, it observes that: 
- in some regions of Italy, the vehicle tax management service is tendered out to 
economic operators (including Ge.Fi.L.); 
- the annual cost of the service provided by Ge.Fi.L. for the Veneto Region (where 
there are 3 939 166 taxed vehicles) is EUR 2 148 019.29, including profit, 
whereas the annual cost of the service under the contested agreement between the 
ACI and the Campania Region (where there are 4 366 682 taxed vehicles) is 
EUR 3 495 000.00 for the flat-rate consideration alone, to which various other 
fees must be added on a commensurate basis: it is clear therefore that the ACI’s 
remuneration is not confined to the reimbursement of expenditure. 
6 Furthermore, the appellant alleges breach of the principles of competition, 
economic efficiency, effectiveness, impartiality, equal treatment, transparency and 
proportionality, as well as the general principles applicable to public and open 
tenders. 
7 Lastly, it submits that the contested award is detrimental to freedom to provide 
services and the opening up of undistorted competition in the Member States. 
8 The Campania Regional Authority and the ACI argue that the direct award of the 
contract for the services in question is specifically permitted under Article 1(121) 
of legge della Regione Campania n. 16/214, in attuazione dell’articolo 2 del 
decreto ministeriale n. 418/1998 (Campania Regional Law No 16/2014, 
implementing Article 2 of Ministerial Decree No 418/1998), whereby the 
Regional Authority must choose between: 
- managing the vehicle tax directly, if necessary using the resources, offices and 
facilities of another public body, such as the ACI; in this respect, they reiterate 
that the ACI is a non-economic public body whose tasks, as laid down in its 
Statute, include the operation of the Public Vehicle Register and, if awarded by 
regional authorities, services relating to vehicle tax;  
GE.FI.L. 
 
5 
or 
- awarding the contract for the provision of the services to concessionaires 
identified on the basis of a tendering procedure organised in accordance with EU 
law. 
9 Furthermore, those parties contend that the contested agreement meets the 
conditions laid down in Article 5(6) of Legislative Decree No 50/2016, in that it 
establishes cooperation between public bodies for the management, solely in the 
public interest, of complementary public services for which they are responsible. 
Succinct presentation of the reasons for the request for a preliminary ruling 
10 The referring court notes that the contested measure was adopted on the basis of a 
legal provision which allows regional authorities, for the purpose of managing 
vehicle tax, to enter directly into an agreement with the ACI (Article 1(121) of 
Campania Regional Law No 16/2014). 
11 However, it has doubts as to whether that direct award complies with the strict 
limits that EU law and case-law, as well as transposing national law, impose on 
cooperation agreements between public authorities or bodies which are entered 
into without a tendering procedure. 
12 Specifically, under Article 5(6) of Legislative Decree No 50/2016, which 
transposes Articles 1(6) and 12(4) of Directive 2014/24/EU, cooperation 
agreements between public bodies or authorities are exempt from tendering 
procedures where the following four conditions are fulfilled: 
I. the public parties to the agreement must all be bound by the public service 
obligation which is the subject of the agreement (they must have “common” 
public service obligations); 
II. the agreement must be based on a genuine division of tasks and public service 
responsibilities which are common to the parties; 
III. financial transactions between the parties to the agreement may consist only in 
the reimbursement of expenditure, excluding payment of consideration; 
IV. the use of such agreements cannot interfere with the pursuit of the primary 
objective of EU rules on public procurement, namely freedom to provide services 
and undistorted competition in the Member States. 
13 The referring court is of the view that the direct award of the contract in question 
is in breach of those four conditions. 
14 Regarding condition (I), it observes that the ACI is a non-economic public body 
which has the sole public service function of managing the Public Vehicle 
Register; it does not have public functions relating to vehicle tax, the assessment 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-618/19 
 
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and collection of which fall exclusively to the regional authorities. The regional 
authorities may carry out those activities either directly, if necessary using the 
resources, offices and facilities of another public body, or through concessionaires 
identified on the basis of tendering procedures. 
15 Regarding condition (II), the referring court points out, first, that there is no 
genuine division of public service functions and responsibilities under the 
agreement in question, since the performance of the service is solely the 
responsibility of the ACI. Second, there are no reciprocal money payments 
between the parties to the agreement; payments are made solely by the regional 
authority to the ACI as consideration for the services contract awarded to it. 
16 Regarding condition (III), the referring court finds that the financial transactions 
provided for in the contested agreement go beyond the simple reimbursement of 
unavoidable expenditure, are specified in the agreement in advance and are 
payable in any event to the ACI. Moreover, the payments in question are 
considerably higher than the market price, as can be seen from the comparison 
with the consideration paid by the Veneto Regional Authority to Ge.Fi.L. for 
largely similar services. 
17 Regarding condition (IV), the referring court observes that the ACI seems to offer 
the services in question on the market and in competition with other economic 
operators, as evidenced by the fact that Ge.Fi.L. was awarded tenders in two other 
regions for the provision of the same services. In other words, as regards vehicle 
tax management services, the ACI is like any other economic operator, since it 
acts outside its sole public function (management of the Public Vehicle Register).  
18 In this respect, the referring court refer to the case-law of the Court of Justice 
according to which an economic operator is any person — including public and 
non-profit-making — who provides services for pecuniary interest to a public 
authority (judgment of 13 June 2013, Piepenbrock, C-386/11). It adds that 
procurement rules tend to safeguard the principle of equal treatment between 
public or private entities which are economic operators (judgment of 9 June 2009, 
Commission v Germany, C-480/06). 
19 If all the four strict conditions thus examined are not complied with, the referring 
court considers that the contested agreement does not amount to the simple 
reorganisation of public service tasks between public authorities, by providing the 
resources, offices and facilities necessary to perform those tasks, as reorganised as 
a result of the cooperation between them. 
20 In reality, behind the formal screen of a public-public partnership, a contract for 
the provision of services is awarded to an economic operator for pecuniary 
interest, which, as such, should be granted by means of a contract or concession 
following a call for tenders. Accordingly, competition on the market is distorted, 
freedom to provide services is undermined, and EU and national public 
procurement rules are circumvented.  
GE.FI.L. 
 
7 
21 The referring court therefore asks the Court of Justice to clarify whether Directive 
2014/24/EU is compatible with a national provision that allows a regional 
authority to award directly, without a call for tenders, a contract for the provision 
of services relating to the management of vehicle tax to a non-economic public 
body.