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.

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.