Order of the Court (Tenth Chamber) of 16 May 2013 — Consulta Regionale Ordine Ingegneri della Lombardia and Others

(Case C-564/11)

‛Article 99 of the Rules of Procedure — Public contracts — Directive 2004/18/EC — Article 1(2)(a) and (d) — Services — Study and technical and scientific consultancy for the purposes of drawing up the measures forming a municipal town and country planning programme — Contract concluded between two public entities, one of which is a university — Public entity capable of being classified as an economic operator’

1. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Scope — Contract of a lower value than the threshold laid down by the directive — Not included — Application of the fundamental rules and general principles of the TFEU — Condition — Contract having a certain cross-border interest — Relevance, irrespective of the applicable EU rules, of the same criteria concerning the obligation of the authorities to issue an invitation to tender (European Parliament and Council Directive 2004/18, Art. 7(b)) (see paras 24, 25)

2. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Public procurement — Meaning — Contract for pecuniary interest — Included — Conditions (European Parliament and Council Directive 2004/18, Art. 1(2), and Annex II A) (see paras 26-30)

3. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — National legislation authorising the conclusion, without an invitation to tender, of a contract establishing cooperation between public entities — Conditions under which permissible — Contract ensuring that a public task that those entities all have to perform is carried out, being solely in the public interest and not placing a private provider of services in a position of advantage vis-à-vis his competitors — For national court to establish (European Parliament and Council Directive 2004/18, Art. 1(2) and Annex II A) (see paras 33-40, operative part)

Re:

Request for a preliminary ruling — Consiglio di Stato — Interpretation of Article 1(2)(a) and (d), Article 2 and Article 28 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), and of Categories 8 and 12 of Annex II thereto — Award of a public procurement contract outside of the procurement procedures provided for under that directive — Contract entered into by two public administrative authorities, under which the supplier of services is a university and the consideration is in essence non-remunerative.

Operative part

European Union public procurement law precludes national legislation under which public entities may, without issuing an invitation to tender, enter into a contract establishing mutual cooperation, where — this being for the referring court to determine — the purpose of such a contract is not to ensure the performance of a public service task incumbent upon all those entities, or where that contract is not governed solely by considerations and requirements relating to the pursuit of objectives in the public interest, or where that contract is of such a nature as to place a private provider of services in a position of advantage vis-à-vis its competitors.

Order of the Court (Tenth Chamber) of 16 May 2013 — Consulta Regionale Ordine Ingegneri della Lombardia and Others

(Case C-564/11)

‛Article 99 of the Rules of Procedure — Public contracts — Directive 2004/18/EC — Article 1(2)(a) and (d) — Services — Study and technical and scientific consultancy for the purposes of drawing up the measures forming a municipal town and country planning programme — Contract concluded between two public entities, one of which is a university — Public entity capable of being classified as an economic operator’

1. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Scope — Contract of a lower value than the threshold laid down by the directive — Not included — Application of the fundamental rules and general principles of the TFEU — Condition — Contract having a certain cross-border interest — Relevance, irrespective of the applicable EU rules, of the same criteria concerning the obligation of the authorities to issue an invitation to tender (European Parliament and Council Directive 2004/18, Art. 7(b)) (see paras 24, 25)

2. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Public procurement — Meaning — Contract for pecuniary interest — Included — Conditions (European Parliament and Council Directive 2004/18, Art. 1(2), and Annex II A) (see paras 26-30)

3. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — National legislation authorising the conclusion, without an invitation to tender, of a contract establishing cooperation between public entities — Conditions under which permissible — Contract ensuring that a public task that those entities all have to perform is carried out, being solely in the public interest and not placing a private provider of services in a position of advantage vis-à-vis his competitors — For national court to establish (European Parliament and Council Directive 2004/18, Art. 1(2) and Annex II A) (see paras 33-40, operative part)

Re:

Request for a preliminary ruling — Consiglio di Stato — Interpretation of Article 1(2)(a) and (d), Article 2 and Article 28 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), and of Categories 8 and 12 of Annex II thereto — Award of a public procurement contract outside of the procurement procedures provided for under that directive — Contract entered into by two public administrative authorities, under which the supplier of services is a university and the consideration is in essence non-remunerative.

Operative part

European Union public procurement law precludes national legislation under which public entities may, without issuing an invitation to tender, enter into a contract establishing mutual cooperation, where — this being for the referring court to determine — the purpose of such a contract is not to ensure the performance of a public service task incumbent upon all those entities, or where that contract is not governed solely by considerations and requirements relating to the pursuit of objectives in the public interest, or where that contract is of such a nature as to place a private provider of services in a position of advantage vis-à-vis its competitors.