Order of the Court (Seventh Chamber) of 4 October 2012 — Vivaio dei Molini Azienda Agricola Porro Savoldi(Case C-502/11)
Public works contracts – Directive 93/37/EEC – Article 6 – Principles of equal treatment and openness – Admissibility of rules reserving the right to participate in public tendering procedures to companies engaged in a commercial
activity and excluding civil partnerships (società semplici) – Institutional and statutory objectives – Agricultural undertakings
1.                     Approximation of laws – Procedures for the award of public works contracts – Directive 93/37 – Purpose (Council Directive
93/37) (see para. 31)
2.                     Approximation of laws – Procedures for the award of public works contracts – Tenderers – National legislation excluding candidates
of a certain legal form – Not permissible – Contactor – Notion – Classification not dependent on direct performance with the
contractor’s own resources, on its legal status and its systematic presence on the market (Council Directive 93/37) (see paras 32-35)
3.                     Approximation of laws – Procedures for the award of public works contracts – Directive 93/37 – Exclusion from participation
in a contract – Limited nature of the list of causes set out in the first paragraph of Article 24 of the Directive – Power
of the Member Stes to provide for other means of exclusion – Conditions (Council Directive 93/37, Art. 24, first para.) (see
para 37-42)
4.                     Approximation of laws – Procedures for the award of public works contracts – Directive 93/37 – Exclusion from participation
in a contract – National legislation excluding individual agricultural undertakings engaged in commercial activities in the
form of civil partnerships – Not permissible (Council Directive 93/37, Art. 6) (see paras 47-51)
Re:
Reference for a preliminary ruling – Consiglio di Stato – Interpretation of Article 6 of Council Directive 93/37/EEC of 14 June
1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54) – Principle
of non-discrimination – National legislation reserving the right to participate in public tendering procedures to companies
engaged in a commercial activity and excluding agricultural undertakings in the form of civil partnerships (società semplici).
Operative part
European Union law, in particular Article 6 of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of
procedures for the award of public works contracts, as amended by Commission Directive 2001/78/EC of 13 September 2001, precludes
national legislation, such as that at issue in the main proceedings, which prohibits an undertaking such as a civil partnership
having the status of ‘contractor’ within the meaning of Directive 93/37 from participating in public procurement procedures
solely on the ground of its legal form.