EN Official Journal of the European Union C 171/3

Judgment of the Court (Fourth Chamber) of 15 May 2008 (reference for a preliminary ruling from the Consiglio di Stato (Italy)) — SECAP SpA (C-147/06) v Comune di Torino, intervening parties: Tecnoimprese Srl, Gambarana Impianti Snc, ICA Srl, Cosmat Srl, Consorzio Ravennate, ARCAS SpA, Regione Piemonte, and Santorso Soc. coop. arl (C-148/06) v Comune di Torino, intervening parties: Bresciani Bruno Srl, Azienda Agricola Tekno Green Srl, Borio Giacomo Srl, Costrade Srl

(Joined Cases C-147/06 and C-148/06) (1)

(Public works contracts - Award of contracts - Abnormally low tenders - Exclusion rules - Works contracts not reaching the thresholds laid down in Directives 93/37/EEC and 2004/18/EC - Obligations upon the contracting authorities deriving from the fundamental principles of Community law)

(2008/C 171/04)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: SECAP SpA (C-147/06), Santorso Soc. coop. arl (C-148/06)

Defendant: Comune di Torino

Intervening parties: Tecnoimprese Srl, Gambarana Impianti Snc, ICA Srl, Cosmat Srl, Consorzio Ravennate, ARCAS SpA, Regione Piemonte (C-147/06), Bresciano Bruno Srl, Azienda Argicola Tekno Green Srl, Borio Giacomo Srl, Costrade Srl (C-148/06)

Re:

Reference for a preliminary ruling — Consiglio di Stato — Interpretation of Article 30(4) 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) and of Article 55(1) and (2) 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 (OJ 2004 L 134, p. 114) — Abnormally low tenders — Extent of the obligation to set in motion an examination procedure

Operative part of the judgment

The fundamental rules of the EC Treaty on freedom of establishment and freedom to provide services and the general principle of non-discrimination preclude national legislation which, with regard to contracts with a value below the threshold set by Article 6(1)(a) 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 European Parliament and Council Directive 97/52/EC of 13 October 1997, which are of certain cross-border interest, imposes an absolute duty on the contracting authorities, where the number of valid tenders is greater than five, automatically to exclude tenders considered to be abnormally low in relation to the goods, works or services according to a mathematical criterion laid down by that legislation without allowing those contracting authorities any possibility of verifying the constituent elements of those tenders by requesting the tenderers concerned to provide details of those elements. That would not be the case if national or local legislation or even the contracting authorities concerned were to set a reasonable threshold above which abnormally low tenders were automatically excluded on account of there being an unduly large number of tenders, which might oblige the contracting authorities to examine on an inter partes basis such a high number of bids that it would exceed their administrative capacity or might, due to the delay which such an examination would entail, jeopardise the implementation of the project.

(1) OJ C 143, 17.6.2006.

OJ C 154, 1.7.2006.