EN Official Journal of the European Union C 232/4

Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 24 March 2016 — Impresa di Costruzioni Ing. E. Association Mantovani SpA and Guerrato SpA v Provincia autonoma di Bolzano, Agenzia per i procedimenti e la vigilanza in materia di contratti pubblici di lavori servizi e forniture (ACP), Autorità nazionale anticorruzione (ANAC)

(Case C-178/16)

(2016/C 232/05)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Appellants: Impresa di Costruzioni Ing. E. Association Mantovani SpA and Guerrato SpA

Respondents: Provincia autonoma di Bolzano, Agenzia per i procedimenti e la vigilanza in materia di contratti pubblici di lavori servizi e forniture (ACP), Autorità nazionale anticorruzione (ANAC)

Question referred

Is it contrary to the correct application of Article 45(2)(c) and (g), and Article 45(3)(a) of Directive 2004/18/EC (1) 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 … and of the EU law principles of protection of legitimate expectations and legal certainty, equal treatment, proportionality and transparency, of the prohibition of making the procedure more cumbersome, and of the greatest openness of the public procurement market, and the principle of legality and precision of criminal penalties too for national legislation such as Article 38(1)(c) of Legislative Decree No 163 of 12 April 2006 (Code on public works contracts, public service contracts and public supply contracts implementing Directives 2004/17/EC (2) and 2004/18/EC) and subsequent amendments, to extend the legal obligation to make a declaration regarding the absence of convictions by way of final judgment (including judgments regarding a sentence negotiated between the parties delivered at their request), for the crimes set out in that legislation, to office-holders in the tendering undertakings, whose tenure ceased in the year preceding the publication of the tender notice, which amounts to a corresponding ground for exclusion from the call for tender, if the undertaking does not show that there has been complete and genuine dissociation from the conduct which carries criminal sanctions, referring to the discretion of the contracting authority the assessment of whether the dissociation is complete, which allows the contracting authority to introduce effectively the following obligations, for failure to fulfil which the tenderer will be excluded:

(i) obligations to provide information and make declarations relating to criminal activities not yet settled by a final judgment (and, therefore, by definition with an uncertain outcome), not laid down in the Legislative Decree, even in respect of office holders;

(ii) obligations of voluntary dissociation, without describing the kind of conduct which would be exculpatory, the relative timing (including whether it must occur before the criminal conviction becomes final) and the stage of the procedure at which those obligations must be met;

(iii) obligations of sincere cooperation, not clearly defined, except with reference to the general clause of good faith.

(1) 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).

(2) Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1).