Opinion of the Advocate General — ECLI:EU:C:2016:48
Date: 2016-01-21
Language of the case: Italian
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

summary, EU law does not preclude national legislation that permits the exclusion from a public procurement procedure of a tenderer having failed to fulfil an obligation of a tax nature which, even though it is not expressly set out in the contract notice or the tender specifications, is imposed as a result of the settled, judicially sanctioned, administrative interpretation of the applicable national legislation, provided that that obligation is not one of which a reasonably informed tenderer exercising ordinary care could have been unaware, a matter which it is for the national court to determine. If it is established that knowledge of that obligation may not be required, the contracting authority must grant the excluded tenderer a sufficient period in which to remedy its omission. VI – Conclusion 68. In the light of the considerations set out, I propose that the Court should reply as follows to the questions referred for a preliminary ruling: (1) Articles 47 and 48 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as not precluding national legislation that, in the circumstances of the case at issue in the main proceedings, permits divided reliance upon the capacities of other entities, on the terms set out above, in the sphere of services. (2) The principles of EU law, in particular the principles of equal treatment and transparency, do not preclude national legislation that permits the exclusion from a public procurement procedure of a tenderer having failed to fulfil an obligation of a tax nature which, even though it is not expressly set out in the contract notice or the tender specifications, is imposed as a result of the settled, judicially sanctioned, administrative interpretation of the applicable national legislation, provided that that obligation is not one of which a reasonably informed tenderer exercising ordinary care could have been unaware, a matter which it is for the national court to determine. If it is established that knowledge of that obligation may not be required, the contracting authority must grant the excluded tenderer a sufficient period in which to remedy its omission. 1 Original language: Spanish. 2 Directive of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114). 3 Directive of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65). 4 Code on public works contracts, public service contracts and public supply contracts in implementation of Directives 2004/17/EC and 2004/18/EC (Codice dei contratti pubblici relativi a lavori, servizi e forniture in attuazione delle direttive 2004/17/CE e 2004/18/CE) (GURI No 100 of 2 May 2006, Ordinary Supplement No 107), as amended by Legislative Decree No 152 of 11 September 2008 (GURI No 231 of 2 October 2008, Ordinary Supplement No 227); ‘Legislative Decree No 163/2006’. 5 2006 Finance Law (Legge finanziaria 2006; GURI No 302 of 29 December 2005, Ordinary Supplement No 211). ‘Law No 266/2005’. 6 Judgment in Swm Costruzioni2 and Mannocchi Luigino, C‑94/12, EU:C:2013:646; ‘Swm Costruzioni’. 7 Judgment in Manova (C‑336/12, EU:C:2013:647, paragraph 32). 8 Judgment in Smw Costruzzioni (C‑94/12, EU:C:2013:646, paragraph 30). 9 Judgment in Smw Costruzzioni (C‑94/12, EU:C:2013:646, paragraph 33). 10 Judgment in Smw Costruzzioni (C‑94/12, EU:C:2013:646, paragraph 35). 11 Loc. cit. 12 Judgment in Smw Costruzzioni (C‑94/12, EU:C:2013:646, paragraph 36). 13 Loc. cit. 14 Paragraph 30 of its written observations. 15 Point C1 of the order for reference. 16 Judgment in Inter-Environnement Wallonie (C‑129/96, EU:C:1997:628, paragraph 45). 17 Judgment in Cartiera dell’Adda (C‑42/13, EU:C:2014:2345, paragraph 44), citing the judgment in Commission v CAS Succhi di Frutta (C‑496/99 P, EU:C:2004:236, paragraphs 108 to 111). 18 Loc. cit. 19 Loc. cit. 20 In addition to the judgments in Cartiera del’Adda (C‑42/13, EU:C:2014:2345), and Commission v CAS Succhi di Frutta (C‑496/99 P, EU:C:2004:236), reference should also be made to, inter alia, the judgments in SIAC Construction (C‑19/00, EU:C:2001:553); La Cascina (C‑226/04 and C‑228/04, EU:C:2006:94); Manova (C‑336/12, EU:C:13:647); and eVigilo (C‑538/13, EU:C:2015:166). 21 Point 66. 22 Point 38, in fine, of its written observations. 23 Judgment in Cartiera del’Adda (C‑42/13, EU:C:2014:2345, paragraph 46).