Opinion of the Advocate General — ECLI:EU:C:2025:568
Date: 2025-07-10
Language of the case: Italian

Translation C-769/23 – 1 
Case C-769/23 
Request for a preliminary ruling 
Date lodged: 
13 December 2023 
Referring court: 
Consiglio di Stato (Italy) 
Date of the decision to refer: 
5 December 2023 
Appellant: 
Mara soc. coop. arl 
Respondents: 
Ministero della Difesa 
Gruppo Samir Global Service Srl 
  
[…] 
ITALIAN REPUBLIC 
Consiglio di Stato (Council of State) 
in sede giurisdizionale (Sezione Quinta) (sitting as a Court (Fifth Chamber)) 
has made the following 
ORDER 
in relation to the appeal […] brought by 
Mara soc. coop. r.l. […]; 
v 
Ministero della Difesa […] Gruppo Samir Global Service s.r.l. […]; 
EN 
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for the reversal 
[…] of judgment No. 6259/2023 of the Tribunale Amministrativo Regionale per il 
Lazio, Roma, sez. I (Lazio Regional Administrative Court (First Chamber), Rome, 
Italy) concerning the parties; 
[…] [standard wording] 
I. FACTS 
1. By a contracting decision of 14 July 2022, which was the subject of prior 
information in the supplement to the Official Journal of the European Union 
2021/S 253-672319, of 29 December 2021, the Ministero della difesa (Ministry of 
Defence, Italy) launched an open procedure within the European Union, pursuant 
to Article 60 of decreto legislativo n. 50 (Codice dei contratti pubblici) 
(Legislative Decree No 50 establishing the Public Procurement Code) of 18 April 
2016 (applicable at the time), for the procurement of occasional and urgent labour 
services related, and unrelated, to transport for central and peripheral needs, and 
not, of the Ministry itself, year 2023 (contract notice 3144713), renewable for 
three years, divided into nine lots. 
The present case concerns the procedure relating to Lot No 6 (CIG 9351659124 – 
NUTS code ITH41), concerning ‘Aeronautica Militare area nord’ (Air Force, 
northern area), for an amount of EUR 532 786.89 (estimated total amount in the 
call for tenders: EUR 5 200 565.31 net of VAT and/or other taxes and statutory 
contributions). For the purposes of the Community threshold, and therefore under 
Article 35 of Legislative Decree No 50 of 2016, the value of the lot – including 
the amounts for possible renewals – was indicated in the tender specifications as a 
total of EUR 3 463 114.72, net of VAT (and the total value of the contract, again 
for the purposes of the Community threshold, was indicated as 
EUR 33 803 674.52, net of VAT). 
The tender rules laid down the award criterion of the lowest price, in accordance 
with Article 95(4)(b) of Legislative Decree No 50 of 2016, since it was a service 
with standardised characteristics. The reduction should have been proposed only 
on the premium placed on the contract value in the contract notice and, in that 
regard, the second paragraph of Article 17 of the tender specifications stated as 
follows: ‘in view of the fact that the percentage discount requested will be made 
only on the premium, labour costs will remain unchanged since the salaries of the 
workers employed are paid on the basis of the sectoral collective agreement. 
Consequently, the objectives of Article 50 of Legislative Decree No 50 of 2016, 
which essentially seek to ensure employment levels and protect workers through 
the application of the CCNLs [(national collective labour agreements)], are not 
affected’. 
The contract for Lot No 6 was awarded to Mara s.c.r.l., now the appellant, which 
offered a 100% reduction. Another competitor, Gruppo SAMIR Global Service 
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s.r.l., had also offered a 100% reduction; and so had another competitor. However, 
the contract was awarded to Mara by drawing lots […]. 
II. THE JUDGMENT AT FIRST INSTANCE 
2. Gruppo SAMIR Global Service s.r.l. therefore challenged, before the Lazio 
Regional Administrative Court, the award decision in favour of the competitor 
[…]. [Other documents challenged which are not relevant to the question referred 
for a preliminary ruling]. The applicant raised complaints against the tender 
submitted by the successful tenderer and, in the alternative, seeking the annulment 
of the entire call for tenders. 
[…]. [National proceedings]. 
3. By judgment No 6259 of 11 April 2023, the Lazio Regional Administrative 
Court, sez. I-bis (First-bis Chamber), Rome, upheld the main appeal of Gruppo 
SAMIR, within the limits of the interest which it claims, and, consequently, 
annulled the contract notice in relation to Lot No 6 […]. [National proceedings]. 
III. THE APPEAL 
4. By the appeal currently being considered, Mara has sought to have the 
judgment at first instance […] set aside. It has submitted two grounds of appeal. 
The company Gruppo SAMIR Global Service s.r.l. has cross-appealed. 
By its first ground of appeal, in particular, the main appellant has alleged that 
Article 95(3)(a) of Legislative Decree No 50 of 2016 has been infringed, claiming 
that the rule laid down therein – which does not allow for the choice of the 
criterion of the lowest price for labour-intensive contracts – does not apply to 
those contracts which, as in the present case, also have standardised 
characteristics. Otherwise, that provision – according to the appellant – would be 
contrary to EU law and, in particular, to Article 67 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 (Text with EEA relevance). The 
appellant notes that the abovementioned EU provision pursues the objective of 
favouring the best quality of performance (which is also in line with the resolution 
of 25 October 2011 on modernisation of public procurement (2011/2048(INI)), 
which preceded the adoption of the 2014 Directive) and establishes the preference 
for the criterion of the most economically advantageous tender; even from that 
perspective, however, the national provision allegedly infringes the principle of 
proportionality, in so far as it goes beyond what is necessary to achieve the 
objectives set out in the Directive, as the criterion of the lowest price may well be 
accepted in the case of highly standardised goods or services, there being no real 
need in such cases to acquire differentiated technical offers. The appellant has 
therefore requested that the Chamber refers a question to the Court of Justice of 
the European Union for a preliminary ruling. 
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5. […] [national proceedings]. 
IV. FACTS AT ISSUE AND APPLICABLE LAW 
6. The matter at issue, which remains after the partial decision in the present 
appeal proceedings, concerns whether a public call for tenders (in this case, for the 
award of a service contract for the provision of labour services related to the 
transport of goods) which is labour-intensive but, at the same time, has 
standardised characteristics, must be carried out in accordance with the award 
criterion of the most economically advantageous tender or whether, on the 
contrary, there remains a margin of discretion, on the part of the contracting 
authority, as to the possible choice of the criterion of the lowest price. 
The relevant national provisions provide as follows: 
- Article 95(3)(a) of Legislative Decree No 50 of 2016 (applicable ratione 
temporis to the contract at issue) provides that: ‘The following shall be awarded 
exclusively on the basis of the criterion of the most economically advantageous 
tender determined on the basis of the best price-quality ratio: 
a) contracts relating to social services, and hospital, care and school catering 
services, as well as labour-intensive services, as defined in Article 50(1), without 
prejudice to awards within the meaning of Article 36(2)(a); 
b) contracts relating to the award of engineering and architectural services and 
other services of a technical and intellectual nature for an amount of EUR 40 000 
or more; 
b-bis) service and supply contracts for an amount of EUR 40 000 or more that 
have significant technological content or are innovative’; 
- in turn, the provisions referred to in (a) provide that (Article 50(1)): ‘for the 
award of concession contracts and contracts for works and services other than 
those of an intellectual nature, in particular those relating to labour-intensive 
contracts, contract notices, notices and invitations shall include, in compliance 
with the principles of the European Union, specific social clauses aimed at 
promoting occupational stability of employed staff, providing for the application 
by the successful tenderer of the collective sectoral agreements referred to in 
Article 51 of decreto legislativo n. 81 (Legislative Decree No 81) of 15 June 2015. 
Labour-intensive services are those in which the labour cost is at least equal to 
50% of the total amount of the contract’; […] [text of Article 36(2)(a), not 
relevant in the present dispute];  
- Article 95(4)(b) of Legislative Decree No 50 of 2016 provides as follows: 
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‘The criterion of the lowest price may be used: […] (b) for services and supplies 
with standardised characteristics or whose conditions are defined by the market, 
with the exception of labour-intensive services referred to in paragraph 3(a)’. 
The latter exception was introduced into the text of the law by Article 1(20)(t)(3) 
of decreto-legge n. 32 (Disposizioni urgenti per il rilancio del settore dei contratti 
pubblici, per l’accelerazione degli interventi infrastrutturali, di rigenerazione 
urbana e di ricostruzione a seguito di eventi sismici) (Decree-Law No 32 on 
urgent provisions for the relaunch of the public contracts sector, for the 
acceleration of infrastructural interventions, urban regeneration and reconstruction 
following seismic events)) of 18 April 2019, converted, with amendments, into 
legge n. 55 (Law No 55) of 14 June 2019. 
The law, however, does not provide a definition of services (or supplies) with 
‘standardised characteristics’, but it may be considered that it intended to refer, at 
least as regards services, to performance that is characterised by a high degree of 
repetitiveness and does not have customisable elements (for example, of 
technological or innovative scope), in relation to which it is difficult to envisage 
that a contribution by the competitor could affect the expectation of uniform 
performance; accordingly, for reasons of economic efficiency and expeditiousness 
of the procedure, the use of the criterion of the lowest price is permitted, there 
being no particular need to use the criterion of best technical quality in the 
competitive comparison. 
7. It therefore follows from the above national legal framework that, for services 
or supplies with standardised characteristics, the administration is entitled to 
(‘may’)) provide for the criterion of the lowest price (Article 95(4)(b) of 
Legislative Decree No 50 of 2016); however, this is subject to the express 
exception for ‘labour-intensive services’, that is to say, those for which the labour 
cost is at least half of the total amount of the contract (as in the present case). In 
the latter case, Article 95(3)(a) imposes exclusively the criterion of the most 
economically advantageous tender. 
The plenary session of the Council of State, which has jurisdiction in the national 
legal system to settle disputes in the case-law concerning the application of the 
rules and to set out the principles of law relating thereto […], was called upon to 
examine – in the context of a case which, as in the present case, concerned a 
contract with standardised, but labour-intensive, characteristics – the relationship 
between the provision of Article 95(3) of Legislative Decree No 50 of 2016, 
which lays down the criterion of the most economically advantageous tender for 
labour-intensive services, and the provision of [Article 95](4), which allows the 
use of the criterion of the lowest price for services and supplies with standardised 
characteristics. That is to say, before the legislature, in 2019, amended the text of 
[Article 95](4)(b), cited above, by adding the exception concerning labour-
intensive services. 
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In that regard, the plenary session pointed out that the rationale for imposing the 
criterion of the most economically advantageous tender, for the award of labour-
intensive services, is that of pursuing the objectives – which are overriding 
objectives, according to the Constitution and EU law, in the field of public 
contracts – of protection of workers. At the same time, it warned that those 
objectives cannot be sacrificed for technical requirements and discretionary 
determinations of the authorities. In resolving the apparent conflict between 
Article 95(3) and (4), the following principle of law was therefore established: 
‘contracts for labour-intensive services within the meaning of Articles 50(1) and 
95(3)(a) of the Public Procurement Code are, in any event, awarded on the basis 
of the criterion of best price-quality ratio, even when they also have standardised 
characteristics within the meaning of [Article 95](4)(b) of that code’ (judgment 
No 8 of 21 May 2019). 
8. Applying that principle, as further confirmed by the subsequent administrative 
case-law at first instance, the Lazio Regional Administrative Court therefore took 
the view, in the context of the present case, that the contract at issue – precisely 
because it is labour-intensive, albeit with standardised characteristics – should 
necessarily have laid down the award criterion of the most economically 
advantageous tender. Consequently, the Regional Administrative Court held that 
the lex specialis clause which provided for the award criterion of the lowest price 
was unlawful and, consequently, annulled the entire call for tenders. 
In particular, the call for tenders at issue in this case – on the one hand – is aimed 
at the award of ‘occasional labour’ services, with indisputably standardised 
characteristics, consisting merely of ‘loading and unloading operations, 
assembling and breaking-up packages, stacking and unstacking incoming and 
outgoing materials, moving materials and anything else defined as ordinary labour 
for the needs of warehouses, factories, entities, naval vessels and/or military 
airports and military entities’ (see Article 17, page 33, of the tender 
specifications), to be rendered in favour of the Ministry of Defence. The same call 
for tenders – on the other hand – is characterised, just as indisputably, by the 
labour-intensive nature of the workforce, which consists of the workforce to be 
dedicated to the described loading, unloading and transport of goods operations: 
the fact that the labour cost is, in the case, at least equal to 50% of the total 
amount of the contract, as defined in the second sentence of Article 50(1) of 
Legislative Decree No 50 of 2016, is a matter of fact in the present case which is 
not in dispute between the parties. 
9. The appellant criticises the conclusions reached by the Regional Administrative 
Court, claiming that, as regards the envisaged merely physical and handling of 
packages operations – operations which, by their nature, are repetitive and 
standardised – there can be no real need to give rise to the acquisition of 
differentiated technical tenders, which would unnecessarily increase the tender 
procedure and violate the constitutional principle of sound public administration. 
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In the present case, moreover – as the appellant submits – the reduction in the 
tender had to be made not on a base price including labour costs, but rather, 
exclusively, on the premium; the latter must be calculated, however, already net of 
labour costs. The penultimate paragraph of Article 17 of the tender specifications 
provided as follows: ‘Even though the contract is to be awarded at the lowest 
price, in view of the fact that the percentage discount requested will be made only 
on the premium, the labour costs will remain unchanged in so far as the wages of 
the workers employed are paid under the sectoral collective agreement. 
Consequently, the objectives of Article 50 of Legislative Decree 50/2016, which 
essentially seek to ensure employment levels and to protect workers through the 
application of the CCNLs, are not affected’. 
The reduction, therefore, could only be made on the potential profit of the 
undertaking, with unchanged labour costs: this therefore left intact the guarantees 
relating to the necessary protection of workers employed in the contract. In this 
way, according to the appellant, protection was ensured both for the needs of the 
contracting public administration and for the economic and safety conditions at 
work. 
9.1. Under EU law, the appellant refers to the provisions of the last subparagraph 
of Article 67(2) of Directive 2014/24/EU, according to which ‘Member States 
may provide that contracting authorities may not use price only or cost only as the 
sole award criterion or restrict their use to certain categories of contracting 
authorities or certain types of contracts’. That provision should be read in 
accordance with the principle of proportionality, which is a general principle of 
Union law, according to which the rules laid down by the Member States, in 
implementing the provisions of Directive 2014/24/EU, should not go beyond what 
is necessary to achieve the objectives of that directive. 
The objective of favouring the best quality of performance, in the light of 
recital 92 of the directive, according to which ‘contracting authorities should be 
encouraged to choose award criteria that allow them to obtain high-quality works, 
supplies and services that are optimally suited to their needs’ is also important. As 
regards the practicability of the criterion of the lowest price, despite the preference 
for the criterion of the most economically advantageous tender, the appellant also 
refers to the resolution of 25 October 2011 on modernisation of public 
procurement (2011/2048(INI)), which preceded the approval of the 2014 
directives, by which the European Parliament, while taking the view that ‘the 
criterion of lowest price should no longer be the determining one for the award of 
contracts, and that it should, in general, be replaced by the criterion of most 
economically advantageous tender, in terms of economic, social and 
environmental benefits – taking into account the entire life-cycle costs of the 
relevant goods, services or works’ stresses, in any event, ‘that this would not 
exclude the lowest price as a decisive criterion in the case of highly standardised 
goods or services’. 
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The Italian legislature, therefore, allegedly exercised the option provided for in 
Article 67 of Directive 2014/24/EU, by prohibiting the use of the criterion of the 
lowest price for the specific type of labour-intensive services (Article 95(4)(b) of 
Legislative Decree No 50 of 2016), but even where the contract has, at the same 
time, standardised characteristics, that is to say, where the qualitative aspects of 
the services are not relevant. To impose, in the latter case, the criterion of the best 
price-quality ratio allegedly manifestly goes beyond what is necessary to achieve 
the objectives, referred to above, pursued by the directive and is, therefore, 
contrary to the principle of proportionality. 
10. The Chamber is of the view that the question for a preliminary ruling, as 
proposed by the appellant, must be referred to the Court of Justice of the European 
Union, especially since the referring court is a court of last instance within the 
meaning of Article 267 TFEU. 
After reiterating that the nature of the contract at issue, which has as its object a 
labour-intensive service, but at the same time has standardised characteristics (as 
regards the performance requested from the workforce, which is characterised by 
the repetitive nature of the work), is not in dispute between the parties, the 
appellant’s complaint, which refers to the violation of the principle of 
proportionality, is particularly significant in the light of the provisions of the 
tender rules which, in the present case, set as the award criterion the highest 
reduction, to be calculated exclusively on the premium, without prejudice to the 
labour costs. 
In addition, it is important to note that, in the present case, compliance with the 
economic conditions and safety at work has already been ascertained both by the 
contracting authority, in the context of the sub-proceedings for verifying 
anomalies in the tenders, and by the national court, which rejected the pleas, put 
forward by the applicant at first instance, by which the lawfulness of the 
successful tenderer’s tender had been challenged precisely in relation to the 
violation of minimum wages. 
The strict application of the internal rules, which (through what is permitted by 
Article 67 of Directive 2014/24/EU) introduced the prohibition of the criterion of 
the maximum reduction for situations corresponding to the present case, should 
allegedly therefore lead to the annulment of the call for tenders for failure to 
provide for the criterion of the most economically advantageous tender, for which 
there is an indisputable preference in the sources of EU law cited by the appellant. 
In the present case, the typical advantages, linked to the protection of workers, 
which normally arise from the use of such an award criterion, were achieved to 
the same extent, despite the provision at issue, in the tender rules, of the different 
criterion of the maximum reduction, as set out according to the conditions 
summarised above. The reduction applied only to the premium, without prejudice 
to the labour costs, especially in light of the finding, in the context of 
administrative and judicial proceedings, that there had been no violation of the 
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protections which must accompany the provision of labour, which therefore leads 
to the conclusion that the obligation to provide for the award criterion of the best 
price-quality ratio is disproportionate, since it does not take into consideration any 
aspects of technical improvement which could, in principle, have characterised the 
tenders relating to standardised provision. 
It follows that the preference in EU law for the criterion of the most economically 
advantageous tender does not appear to coincide, in the present case, with the 
reasons on which it is allegedly based and that, consequently, the imposition of 
that criterion appears to be a manifestly excessive, disproportionate and 
unjustified measure. 
V. THE QUESTION REFERRED TO THE COURT OF JUSTICE FOR A 
PRELIMINARY RULING 
11. In the light of the foregoing considerations, in view of the importance – for the 
purposes of deciding on the last remaining complaint, raised in the present case – 
of the issue of the compatibility of the abovementioned national legislation with 
the provisions of EU law referred to, the Chamber asks the Court of Justice of the 
European Union to give a preliminary ruling on the following question: 
‘do the principles of freedom of establishment and freedom to provide services, 
referred to in Articles 49 and 56 of the Treaty on the Functioning of the European 
Union (TFEU), the [EU] principle of proportionality and Article 67(2) of 
Directive 2014/24/EU preclude the application of national legislation on public 
procurement, such as the Italian legislation in Article 95(3)(a) and (4)(b) of 
Legislative Decree No 50 of 18 April 2016, and in Article 50(1) of that legislative 
decree, as also arising from the principle of law laid down by the Plenary Session 
of the Council of State in judgment No 8 of 21 May 2019, according to which, in 
the case of contracts concerning services with standardised characteristics and, 
which are, at the same time, labour-intensive, the contracting authority is 
prohibited from providing for, as an award criterion, the lowest price, even where 
the tender rules provide for the reduction only on the premium or potential profit 
of the undertaking, without prejudice to the labour costs?’. 
12. […]. [List of documents sent to the Registry]. 
[…] [stay of proceedings]. 
FOR THOSE REASONS 
The Council of State (Fifth Chamber), sitting as a court 
refers the question set out in the grounds of this order to the Court of Justice of the 
European Union for a preliminary ruling and […] stays the proceedings. 
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[…] [transmission of documents] […]. Thus decided in Rome […] 
12 October 2023 […].