OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 23 January 2019 ( 1 )

Case C‑697/17

Telecom Italia SpA

v

Ministero dello Sviluppo Economico,

Infrastrutture e telecomunicazioni per l’Italia SpA (Infratel Italia SpA),

interveners:

Open Fiber SpA

(Request for a preliminary ruling from the Consiglio di Stato (Council of State, Italy))

(Preliminary-ruling proceedings — Public contracts — Directive 2014/24/EU — Restricted procedure — Economic operators invited to submit a tender — Merger by absorption carried out during the procurement procedure — Requirement that legal identity must remain the same during the preselection stage and the tender submission stage)

1. In this reference for a preliminary ruling, the Consiglio di Stato (Council of State, Italy) asks whether, for the purposes of Directive 2014/24/EU, ( 2 ) a company initially selected as part of a restricted public procurement procedure remains ‘legally and substantively identical’ if that company merges by absorption with another company which was also selected but which did not ultimately submit a tender.

2. The case now before the Court is, in some ways, the reverse of the case which led to the judgment in MT Højgaard and Züblin, ( 3 ) in which the tenderer, when it was preselected, was part of a group of undertakings that was subsequently dissolved. The question in that case was whether, following the dissolution of the group, that tenderer could continue to participate in its own name in the negotiated procedure for the award of a public contract.

3. The Court of Justice is therefore presented with a fresh opportunity to develop its case-law on the requirement that preselected economic operators and those who submit tenders must be legally and substantively identical.

I. Legislative framework

A. EU law: Directive 2014/24

4. Article 8 provides: ‘This Directive shall not apply to public contracts and design contests for the principal purpose of permitting the contracting authorities to provide or exploit public communications networks or to provide to the public one or more electronic communications services. For the purposes of this Article, “public communications network” and “electronic communications service” shall have the same meaning as in Directive 2002/21/EC of the European Parliament and of the Council.’ ( 4 )

5. In accordance with Article 18(1): ‘Contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner. The design of the procurement shall not be made with the intention of excluding it from the scope of this Directive or of artificially narrowing competition. Competition shall be considered to be artificially narrowed where the design of the procurement is made with the intention of unduly favouring or disadvantaging certain economic operators.’

6. Pursuant to Article 28: ‘1. In restricted procedures, any economic operator may submit a request to participate in response to a call for competition containing the information set out in Annex V parts B or C as the case may be by providing the information for qualitative selection that is requested by the contracting authority. … 2. Only those economic operators invited to do so by the contracting authority following its assessment of the information provided may submit a tender. Contracting authorities may limit the number of suitable candidates to be invited to participate in the procedure in accordance with Article 65. …’

B. National law: Codice dei contratti pubblici (Code on public sector contracts) ( 5 )

7. Article 61(3) reads: ‘Following the assessment by the contracting authority of the information provided, only those economic operators invited to do so may submit a tender.’

8. In accordance with Article 48(11): ‘In restricted or negotiated procedures, or in competitive dialogue procedures, economic operators who are invited individually, or candidates who are admitted individually to the competitive dialogue procedure, shall have the possibility of submitting a tender or of negotiating on their own behalf or as representatives for associated operators.’

II. Facts and question referred for a preliminary ruling

9. Infratel Italia SpA (‘Infratel’), on behalf of the Ministero dello Sviluppo economico (Ministry of Economic Development, Italy), launched a restricted procedure for the award of a concession contract for the construction, maintenance and management of a publicly owned passive ultra-broadband network in certain regions.

10. The restricted procedure, subdivided into five lots (corresponding to five geographical areas), was split into the following stages: (a) submission of applications to participate (by 18 July 2016); (b) sending of invitations to participate to the selected operators (by 9 August 2016); and (c) submission of tenders (by 17 October 2016).

11. Telecom Italia SpA (‘Telecom Italia’), Metroweb Sviluppo SpA (‘Metroweb Sviluppo’) and Enel Open Fiber SpA (‘Enel Open Fiber’), ( 6 ) in addition to other operators, submitted their applications (first stage of the procedure). Infratel accepted those applications and therefore invited those undertakings to participate (second stage of the procedure) as selected tenderers.

12. Although it was selected in that second stage, Metroweb Sviluppo did not submit any tender, thereby de facto waiving its right to participate in the tendering procedure.

13. On 9 January 2017, Infratel published the list of invited tenderers, and, on 24 January 2017, it published the provisional lists of successful tenderers. Enel Open Fiber was ranked first in the five lots while Telecom Italia was ranked second in all lots apart from Lot No 4, where it was ranked third.

14. Following the conclusion of the procedure, Telecom Italia had access to the documents held by the contracting authority and after viewing those documents it found that, at some point between the selection stage and the deadline for submitting tenders (17 October 2016), Metroweb Sviluppo and Enel Open Fiber had been involved in a complex company transaction.

15. That transaction arose from a concentration whereby the companies Enel SpA (‘Enel’) and Cassa Depositi e Prestiti SpA (‘CDP’), through its subsidiary CDP Equity SpA. (‘CDPE’), acquired overall control of the undertaking resulting from the merger of Enel Open Fiber with Metroweb Italia SpA (‘Metroweb Italia’).

16. According to the ‘investment framework agreement’ concluded on 10 October 2016 between the holding company Enel (which controlled Enel Open Fiber) and Metroweb Italia (which controlled Metroweb Sviluppo), the transaction involved: – the acquisition by Enel and CDPE of 50% each of the share capital of Enel Open Fiber; – the acquisition by Enel Open Fiber of 100% of the share capital of Metroweb Italia; – the merger by absorption by Metroweb Italia of certain companies in the Metroweb Italia group, including Metroweb Sviluppo; – the merger of Enel Open Fiber with the company resulting from the merger of the Metroweb Italia group, creating a ‘new Enel Open Fiber’. ( 7 )

17. Pursuant to that agreement, on 17 October 2016 Metroweb Sviluppo (participating in the tendering procedure) was merged by absorption into the Metroweb group. On 23 January 2017, the merger by absorption of Metroweb into Open Fiber was agreed.

18. The proposed concentration was notified to the European Commission on 10 November 2016, ( 8 ) pursuant to Regulation (EC) No 139/2004. ( 9 ) By decision of 15 December 2016, the Commission decided not to oppose the transaction. ( 10 )

19. Telecom Italia challenged the award of the five lots into which the restricted procedure was divided in five actions brought before the Tribunale amministrativo regionale del Lazio (Regional Administrative Court, Lazio, Italy), which dismissed those actions by five similarly worded judgments.

20. Against that background, Telecom Italia brought five appeals before the Consiglio di Stato (Council of State), which decided to stay the proceedings and refer the following question for a preliminary ruling: ‘Must the first sentence of Article 28(2) of Directive 2014/24/EU be interpreted as requiring pre-qualified operators and those who submit tenders in the context of a restricted procedure to be completely legally and economically identical and, in particular, must that provision be interpreted as precluding the conclusion of an agreement between the holding companies which control two pre-qualified operators at some point between pre-qualification and the submission of tenders, where: (a) that agreement has as its purpose and effect (inter alia) the completion of a merger by the absorption of one of those pre-qualified undertakings into the other (a transaction which, however, is authorised by the European Commission); (b) the effects of that merger were fully realised after the submission of a tender by the absorbing undertaking (for which reason, at the time the tender was submitted, its composition had not changed from that which existed at the time of pre-qualification); (c) the undertaking then absorbed (whose composition had not changed at the time of the deadline for submitting tenders) has however stated that it is not taking part in the restricted procedure, probably in implementation of the contractual schedule established by the agreement drawn up between the holding companies?’

21. The referring court points out that the disputed procedure is not governed in its entirety by Directive 2014/24 or by Directive 2014/23/EU, ( 11 ) but rather only by the rules of the invitation to tender, in accordance with which Article 61 of the CCP, transposing Article 28 of Directive 2014/24, was applicable.

22. The invitation to tender further stipulated that the outcome of the procurement procedure would be decided in favour of the most economically advantageous tender, on the basis of the best price-quality ratio, within the meaning of Article 95 of the CCP, which transposes Article 67 of Directive 2014/24.

23. The referring court considers that it is unlikely, in the context of a restricted procedure governed by Article 28 of Directive 2014/24, that it will be possible to apply the principle of legal and substantive identity established by the Court in MT Højgaard and Züblin. ( 12 )

24. The Consiglio di Stato (Council of State) notes that the merger operation which ended in January 2017 had only just started on the date for the submission of tenders (October 2016), meaning that the structure of Enel Open Fiber had not yet been altered. The Consiglio di Stato (Council of State) believes that, ultimately, it is not possible to prove that through the merger agreement — which resulted in a stable and structural alteration of the companies concerned — the parties involved intended to engage in concerted action to distort competition in the procurement procedure.

III. Procedure before the Court of Justice and the parties’ positions

25. The reference for a preliminary ruling was received at the Registry of the Court of Justice on 11 December 2017. Written observations were lodged by Telecom Italia, Infratel, Open Fiber, the EFTA Surveillance Authority, the Italian Government and the Commission. All the parties which have entered an appearance, with the exception of the EFTA Surveillance Authority, attended the hearing which was held on 15 November 2018.

26. Telecom Italia maintains that, in the case of a proposed merger by absorption, it is the substantive identity of the preselected absorbing undertaking, rather than its legal identity, which really changes, making the merger incompatible with the principle in Article 28(2) of Directive 2014/24.

27. Telecom Italia further submits that the referring court underestimated the complexity of the transaction at issue, since it merely examined the subjective and formal identity of Enel Open Fiber on the deadline for the submission of tenders, thereby fragmenting the overall programme of gradual integration with Metroweb Sviluppo. In fact, in Telecom Italia’s submission, leaving aside any anti-collusion principle, that overall programme was initiated by a mandatory framework agreement entered into between the preselection stage and the deadline for the submission of tenders, implemented during the tendering procedure, and concluded after the contract was finally awarded but before it was signed. The framework agreement merged the two companies into a single decision-making centre with effect from the invitation to tender stage, which enabled Metroweb Sviluppo to refrain from submitting a tender while at the same time ensuring that it could be selected as if it had submitted one. That situation should be penalised in the same way as it would if the same decision-making centre had submitted two tenders.

28. Infratel submits that the reference for a preliminary ruling is inadmissible for being hypothetical because the referring court does not ask about the interpretation of the applicable EU law and there has already been a ruling on the subject matter of the main proceedings. In the alternative, Infratel contends that the preselected entities did not change in any way from the entities which submitted tenders. At the time when it submitted its tender, Enel Open Fiber acted as a single operator with the same composition as it had during the preselection stage. The merger did not alter its legal personality and therefore its identity was the same as that of the preselected undertaking.

29. Open Fiber also contends that the reference for a preliminary ruling is inadmissible: – first, because it raises the question of the conformity of the framework agreement with Directive 2014/24, even though the lawfulness of that agreement is not in issue in the main proceedings; – second, because, since the tendering procedure concerns a concession for the construction of a communications network, it would be governed by Directive 2014/23, but both that directive and Directive 2014/24 are inapplicable on account of the derogation laid down therein in respect of communications networks and services. The documents relating to the procedure cannot be construed as referring to Article 28 of Directive 2014/24; – third, because the alleged prohibition on merger by absorption between preselected entities is not an inherent principle of the EU legal order; – fourth, because the referring court does not have any uncertainties regarding the interpretation of EU law.

30. As regards the substance, Open Fiber agrees with the view expressed by the referring court and contends that its invitation to participate in the tender evaluation stage is not contrary to Article 28 of Directive 2014/24 or the Court’s case-law.

31. The Italian Government also submits that the reference for a preliminary ruling is inadmissible, arguing that the referring court merely refers, in general terms, to a rule of EU law and accepts that there is no link at all between the situation at issue and that rule, because Enel Open Fiber’s tender was submitted by the same legal person which had been permitted to participate in the restricted procedure.

32. As regards the substance, the Italian Government submits that it is apparent from Article 51(2) of Directive 2004/17/EC ( 13 ) that the operator invited to participate and the operator which submits the tender must be completely economically and legally identical. However, Article 28(2) of Directive 2014/24 introduced a less stringent requirement.

33. The Italian Government contends that it does not follow from either the national provisions or the general principles of EU law that the merger by absorption of the preselected entities, which was authorised by the Commission and completed after the absorbing company submitted the tender, is an unlawful operation.

34. The EFTA Surveillance Authority submits that there is no breach of the identity requirement if — as it believes occurred in this case — first, the economic operator which ultimately submits the tender fulfils the conditions established by the contracting entity and, second, the fact that that operator is permitted to submit a tender does not place other competitors at a disadvantage. The identity requirement — which is by no means an absolute requirement — does not preclude the conclusion of an agreement leading to the merger of two preselected operators during a public procurement procedure.

35. In the Commission’s submission, the question should be reworded, for it could be construed as asking the Court about the lawfulness of the merger agreement.

36. The Commission maintains that the criteria laid down in MT Højgaard and Züblin, ( 14 ) in relation to Directive 2004/17, could be applied mutatis mutandis in similar circumstances governed by Directive 2014/24. However, the Commission observes that the situation which led to that judgment is very different from that now at issue. In this case, there was no change of identity whatsoever between the date for preselection of operators invited to submit a tender and the date for submission of tenders, as occurred in MT Højgaard and Züblin.

37. The Commission contends that the conclusion of a merger by absorption agreement does not in itself result in a deterioration of the competitive position of other tenderers or a breach of the principle of equal treatment. That risk can be excluded if, first, pursuant to Article 7(1) of Regulation No 139/2004, the parties have not carried out — even partially — the merger operation and have not previously exchanged sensitive information likely to influence their conduct during the public procurement procedure, and, second, all the operators participating in the procedure are aware that the merger agreement has been concluded.

38. The Commission believes that it is irrelevant that the company being absorbed waived its right to participate in the restricted procedure. That factor can have no bearing on the admission of the absorbing company to the evaluation stage, unless it makes clear that the parties have partially performed the merger and have exchanged sensitive information likely to influence their conduct during the procurement procedure, thereby infringing the principle of equal treatment.

IV. Analysis

A. The admissibility of the reference for a preliminary ruling

39. Infratel, Open Fiber and the Italian Government submit that the reference for a preliminary ruling is inadmissible because, they claim, it is of no relevance to the main proceedings and it is also hypothetical, in that it does not actually reflect a genuine uncertainty of the referring court.

40. I believe, however, that that plea should be dismissed.

41. The Consiglio di Stato (Council of State) has indicated that the procurement procedure is governed by the rules contained in the invitation to tender, one of which refers to Article 61 of CCP which transposes Article 28 of Directive 2014/24 into Italian law. Moreover, the grounds of appeal put forward by Telecom Italia include the infringement of the principle of identity laid down by EU law, ( 15 ) inter alia other grounds relating to national law.

42. Having dismissed the infringements of national law alleged by the appellant, the referring court states that it only remains for it to examine the ground alleging infringement of EU law, which ‘has become relevant and decisive for the purposes of adjudicating on the dispute at issue and on which the Division considers it necessary to seek a preliminary ruling within the meaning of Article 267 TFEU.’ ( 16 )

43. In such a situation, I believe that the presumption of the relevance of questions referred for a preliminary ruling should apply. As is well known, that presumption can be rebutted but only if very specific circumstances exist: (a) where it is quite obvious that the interpretation, or the determination of validity, of a rule of EU law that is sought bears no relation to the actual facts of the main action or its purpose; (b) where the problem is hypothetical; or (c) where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. ( 17 )

44. In my view, none of those three circumstances exist in this case. Further, although, admittedly, the Consiglio di Stato (Council of State) sets out the reasons which, in its opinion, support a particular interpretation of Article 28 of Directive 2014/24, that does not mean that it does not harbour uncertainties about the meaning of that provision. ( 18 )

45. The referring court believes that its interpretation of that provision is feasible but it takes the view that another interpretation might also be possible and that, therefore, the permitted intervention of the Court of Justice is required. By acting in that way, the referring court is cooperating faithfully with the Court of Justice in the exercise of jurisdiction, in accordance with the spirit underlying point 17 of the Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings. ( 19 )

B. Substance

46. The Commission rightly suggests that the question referred by the Consiglio di Stato (Council of State) should be reworded, as that question might give the — incorrect — impression that it concerns the compatibility of the merger agreement with EU law. However, the referring court does not actually express any uncertainty about that agreement or cast doubt on its validity.

47. Accordingly, the dispute is confined to the determination of whether Article 28(2) of Directive 2014/24 precludes an operator involved in a merger by absorption with another preselected operator from being admitted to the tender evaluation stage (in a restricted procurement procedure).

48. That is the question specifically asked by the referring court, which, as I stated above, ( 20 ) considers that Article 28(2) of Directive 2014/24 is applicable (by way of reference from the national provisions) to the case on which it is required to adjudicate and that the outcome of the proceedings turns on the interpretation of that provision, once the issues of national law to be determined in those proceedings have been addressed.

49. Although Infratel, Open Fiber and the Italian Government insisted on disputing that assessment of the Consiglio di Stato (Council of State) at the hearing, I believe that that court’s interpretation of the law applicable to the case is reasonable and based on adequate reasoning.

50. In view of the clear separation of functions between the national courts and the Court of Justice which characterises the procedure laid down in Article 267 TFEU, it is solely for the Consiglio di Stato (Council of State), before which the dispute has been brought and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. ( 21 ) That assertion assumes that there has been a prior determination of the legislation applicable to the case, a determination which, for the reasons set out, cannot be challenged on grounds of reasonableness or reasoning.

1. The legal and substantive identity of the operators selected in a restricted procedure

51. It is, in short, a matter of determining whether Article 28(2) of Directive 2014/24 requires ‘pre-qualified operators and those who submit tenders in … a restricted procedure to be completely legally and economically identical’ in a situation in which two preselected operators have agreed the merger by absorption of one of them, which has the following particular features: – the proposed merger was agreed between the selection date and the date for the submission of tenders and was subsequently authorised by the Commission; – the effects of the merger were completed after the absorbing company had submitted its tender; and – the company being absorbed decided not to participate in the restricted procedure.

52. The so-called ‘requirement for preselected economic operators and those who submit tenders to be legally and substantively identical’ is based on Article 51(3) of Directive 2004/17, which states that the contracting entities are to ‘verify that the tenders submitted by the selected tenderers comply [with the rules and requirements applicable to tenders] …’ That is what the Court held in MT Højgaard and Züblin, ( 22 ) a judgment to which the referring court explicitly refers.

53. The same rule has been encapsulated in Article 28(2) of Directive 2014/24, according to which ‘only those economic operators invited to do so by the contracting authority … may submit a tender (in restricted procedures)’.

54. That requirement is ultimately intended to safeguard the principle of equal treatment of tenderers. ( 23 ) Strict application of that principle must ‘lead to the conclusion that only those economic operators who have been preselected can in that capacity submit tenders and be awarded contracts.’ ( 24 )

55. Article 28(2) of Directive 2014/24 is aimed at ensuring that restricted procedures really are just that; in other words, that in such procedures only economic operators who have been invited to do so by the contracting authority — and no other operators — may submit tenders. As a result of that invitation, the scope to which the tendering procedure is restricted, from a subjective point of view, is established.

56. If an economic operator who has not been preselected were permitted to submit a tender, that would constitute preferential treatment of that operator in relation to other operators. The latter will have been able to submit their tenders only after formally applying to participate in the (restricted) procedure and after having undergone the appropriate evaluation by the contracting authority.

57. In MT Højgaard and Züblin, the Court observed that the identity rule ‘may be qualified in order to ensure, in a negotiated procedure, adequate competition’. ( 25 ) That observation must be understood in the context of that case, the facts of which were, as I pointed out above, completely the opposite of those now at issue.

58. Advocate General Mengozzi correctly described the background to that case when he stated that ‘the factual context of the question is that a group of two undertakings, constituted in the form of a commercial company and having been preselected in a procurement procedure, was dissolved following the insolvency of one of its two members, and the contracting authority allowed the remaining member to continue to take part in the procedure in place of the group and ultimately awarded it the contract, despite the fact that that member as such had not been preselected.’ ( 26 )

59. Had the identity principle been strictly applied on that occasion and had it accordingly been concluded that the remaining member of the group of undertakings could not, as a different person, continue to participate in the procedure, the number of candidates tendering for the contract would have been reduced to three. However, that outcome was contrary to the terms of the contract notice, according to which the contracting entity considered that there should be at least four candidates in order to ensure competition. ( 27 )

60. When striking a proper balance between the principle of equal treatment of tenderers — which the identity principle reflects — and the need to ensure effective competition — in a case in which, moreover, a reduction of the number of tenderers was liable to result in the failure of the procurement procedure — the Court held that the principle of equal treatment is not undermined where ‘one of two economic operators, who formed part of a group of undertakings that had, as such, been invited to submit tenders …, [is permitted] to take the place of that group following the group’s dissolution, and to take part, in its own name, in the negotiated procedure for the award of a public contract, provided that it is established, first, that that economic operator by itself meets the requirements laid down by the contracting entity and, second, that the continuation of its participation in that procedure does not mean that the other tenderers are placed at a competitive disadvantage.’ ( 28 )

61. In the case now before the Court, there is no suggestion that the exclusion of the absorbing company (this is, in truth, what Telecom Italia seeks), together with the withdrawal, on its own initiative, of the company being absorbed, would have restricted the number of tenderers so that, because that number was below the minimum required, it might have prevented the award of the contract.

62. Thus, it is not mandatory to modify the requirements of the identity principle in the interests of the principle of preservation of the procedure for the award of the contract, rather than in the interests of competition between tenderers. Accordingly, since the particular and special situation on which the approach taken in MT Højgaard and Züblin ( 29 ) was based is not present in this case, there are, in principle, no reasons to ‘qualify’ the requirement of identity.

63. However, the Court took the view in that case that it was necessary to ‘qualify’ the identity principle on the basis that it did not concern a tenderer who was completely different from the preselected tenderers and who was seeking to submit a tender (which is, I stress, the typical situation which the legislature had in mind when enacting Article 28(2) of Directive 2014/24). The Court accepted that a company which, owing to its links to one of the preselected operators (of which, in fact, it formed part), was not completely unconnected to the procedure, could do so.

64. This case also involves a situation in which the financial structure of two of the preselected operators, one of which absorbed the other, was altered or was in the course of being altered. Accordingly, this case does not concern the possible involvement of a third party with no connection to the restricted procedure either.

2. The impact of the merger by absorption on the legal and substantive identity of the selected tenderer

65. According to the information provided by the referring court, there had been no change in the legal personality of Enel Open Fiber on the date on which that company, having been selected, submitted its tender, which is the exact point in the procurement procedure about which the referring court asks. The referring court states that ‘its composition had not changed at the time of the deadline for submitting tenders’.

66. In that connection, it should be noted that, as the Commission has observed, ( 30 ) since the merger by absorption was a concentration with an EU dimension, it could not be performed without having first obtained the Commission’s consent (more correctly, its non-opposition and a declaration that the concentration was compatible with the internal market), which was given on 15 December 2016, in other words, two months after the deadline for the submission of tenders.

67. Nonetheless, what really interests the referring court is whether the fact that the negotiations for the merger were already in progress when the operators which were to be merged were selected by the contracting authority amounted to a certain substantive change in the personality of Enel Open Fiber, which would be sufficient to support the conclusion that that company was not, de facto, the same legal person as the Enel Open Fiber which had been preselected.

68. In other words, the question is whether the fact that a change is in the process of being made to the financial structure of a preselected tenderer, which is acquiring or is proposing to absorb another preselected tenderer, is sufficient to exclude that tenderer from a (restricted) procedure. ( 31 )

69. In support of exclusion, it could be argued that, since the merger process is set to culminate in a structural change to the absorbing company and the company being absorbed, the principles of transparency and equal treatment of tenderers require that that outcome be brought forward to the actual moment when, as a result of the planned merger agreement, substantive confusion between the companies concerned commences. The selected company and the company which submitted the tender would therefore have ceased to be substantively identical and, for those purposes, they would no longer be the same person.

70. However, I am not persuaded by that argument. First, it overlooks the fact that, in this case, the two operators (the absorbing operator and the operator being absorbed) were preselected to submit tenders prior to the merger, from which it follows that it is possible to refer to a cessation of the substantive identity and also to a substantive continuity between the two of them.

71. Second, I believe that it is disproportionate to take the requirement of substantive identity to that extreme in a situation involving the merger of companies by absorption. In a transaction of this kind, the absorbing company retains its legal personality and increases its assets, by adding to them those of the company being absorbed. ( 32 ) In fact, from a substantive point of view, that change to the acquiring company’s assets is no different from that which would occur in the event of an increase in the company’s share capital or other similar transactions. If the preselected tenderers were unable to carry out this kind of corporate transaction during the restricted tendering procedure, because doing so would undermine their substantive identity, their business capability would be unnecessarily and disproportionately reduced.

72. At the hearing, Telecom Italia qualified its written observations, acknowledging that transactions of this kind (including mergers) would be irrelevant, from the perspective that is important for the present purposes, if they involved operators who were not participants in the tendering procedure. In so doing, I believe that Telecom Italia accepts that its complaint is actually concerned with the risk of collusion which could result from a merger with another tenderer in the same tendering procedure, rather than the preservation of the substantive identity of the preselected tenderer (for, if its original argument were adopted the tenderer’s identity would also be altered by the absorption of any other undertaking).

73. The prohibition of changes to the shareholding structure of a preselected undertaking while a restricted procedure for the award of a contract is underway could also create the legal uncertainty to which the Consiglio di Stato (Council of State) refers in its order for reference. ( 33 )

74. Directive 2014/24 provides for the possibility that, following a corporate restructuring (as a result, inter alia, of a merger), a new contractor may replace the contractor named as the successful tenderer, without the need to commence a new procurement procedure. ( 34 ) If the conditions to which the legislature has made that possibility subject are fulfilled, ( 35 ) I see no reason why that provision should not also apply to the case of a procedure which is in progress. ( 36 )

75. It is worth pointing out that any ground of exclusion based on that reason must have been expressly stated in the tender documents, in the national provisions or in the EU provisions governing the tendering procedure. That is not so in this case and therefore the arguments set out in the judgment in Specializuotas transportas, ( 37 ) concerning the imposition on tenderers of an obligation which is not provided for in either ‘applicable national legislation [or] the call for tenders or the tender specifications …, [since it does] not constitute a clearly defined condition for the purpose of the case-law [cited]’ are fully applicable. ( 38 )

3. The principle of equal treatment as regards (the other) selected operators

76. Based on the continuity of the two preselected operators (the absorbing company and the company being absorbed), I believe that there are no reasons to find that here has been a breach of the principle of equal treatment in relation to the other tenderers. None of those tenderers was required to compete with an economic operator who was entirely unconnected to the restricted procedure but rather with an operator which has an undeniable substantive connection to two operators which were also preselected and which were required to undergo the same evaluation procedure.

77. Therefore, there was no breach of the principle of equal treatment at the time when the tenders were submitted, which is what essentially matters for the present purposes. Although it later merged with another of the preselected operators, the fact is that Enel Open Fiber was also successful in the preselection stage, and its circumstances are radically different from those of a third party which has been invited to submit a tender without being required to follow the procedure with which operators admitted to the restricted procedure have had to comply.

78. Under the principle of equal treatment as between tenderers, the aim of which is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure, all tenderers must be afforded equality of opportunity when formulating their tenders. This therefore implies that the tenders of all competitors must be subject to the same conditions, ( 39 ) and its effects extend to the whole of the procedure for the award of a contract, in particular, both when tenderers formulate their tenders and when those tenders are being assessed by the contracting authority. ( 40 )

79. Was the fact that the merger of the two operators took place after the deadline for the submission of tenders but before the definitive classification of those tenders ( 41 ) liable to be detrimental to the other tenderers by placing them in a position of inequality? I do not believe so. The decisive factor is that the contract was ultimately awarded to the tenderer who fulfilled the conditions set out in the contract notice, provided that the successful tenderer did not receive preferential treatment throughout the procedure.

80. In particular, for our purposes here, since the procedure was restricted, the following factors are relevant: – first, Enel Open Fiber was duly preselected and kept its legal personality unchanged even though its shareholding structure was altered when it absorbed another tenderer; – second, Metroweb Sviluppo, the tenderer which was absorbed, did not submit a tender in the end even though it had been preselected. That means that, ultimately, the merger of the two operators resulted in the submission of a single tender.

81. It was not even absolutely essential that Metroweb withdrew from the tendering procedure, for the purposes of giving full effect to the principle of equal treatment, since the Court has held that tenderers who are linked to one another may submit tenders simultaneously in the same procedure, provided that these are not ‘coordinated or concerted tenders, that is to say, tenders that are neither autonomous nor independent, which would be likely to give them unjustified advantages in relation to the other tenderers’. ( 42 )

82. The possible risks of collusion which could arise as a result of the merger do not really have anything to do with a change in the substantive identity of Enel Open Fiber but rather with the fact that improper contact might have taken place between two of the tenderers, irrespective of whether or not they were involved in a merger operation.

83. There is nothing to suggest that Metroweb Sviluppo and Enel Open Fiber’s tenders were coordinated or concerted and, in any event, only one of them ultimately submitted a tender, which eliminates the risk of collusion.

84. Moreover, the Consiglio di Stato (Council of State) expressly rules out the possibility that the merger agreement was aimed at circumventing the rules of competition or that it sought, ‘in essence, to disturb the balance of the tendering procedure to the detriment of the other competitors and the procuring entity … The concentration transaction carried out under the framework agreement of 10 October 2016 cannot, in itself, be said to amount to a concerted practice between participants in the tendering procedure’. ( 43 )

85. However, it is appropriate to consider the situations in which a merger in progress is capable of undermining the principle of equal treatment. I am not ruling out that, in the abstract, that might occur where, contrary to Article 7(1) of the EC Merger Regulation, ( 44 ) the merger has de facto begun to take effect, thereby enabling a possible exchange of information between the operators concerned — who have been preselected — which could place them at an advantage over the other tenderers. ( 45 )

86. It is for the referring court to determine whether that occurred in this case although, I repeat, its view, as set out in the order for reference, is that the structural merger of the two companies ‘falls far short of being a collusive agreement between two competitors who intend to upset the balance of an individual tendering procedure’. ( 46 )

87. In summary, the submission of a tender by a tenderer which is in the process of merging with another tenderer, which has also been selected, is not incompatible with Article 28(2) of Directive 2014/24, unless the two operators act in a coordinated or concerted manner in the restricted procurement procedure so that they have an unfair advantage over other tenderers, a matter which it is for the national court to determine.

V. Conclusion

88. In the light of the foregoing considerations, I suggest that the Court of Justice reply as follows to the Consiglio di Stato (Council of State, Italy): Article 28(2) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC must be interpreted as meaning that it does not preclude, in a restricted procedure, the admission to the tender evaluation stage of an economic operator which has concluded an agreement for the merger by absorption of another economic operator which has also been selected, provided that: – that merger agreement was not legally or substantively implemented before the tender submission stage; and – the two operators have not acted in a coordinated or concerted manner in the restricted procurement procedure so that they have an unfair advantage over other tenderers, a matter which it is for the national court to determine.

( 1 ) Original language: Spanish.

( 2 ) Directive of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65).

( 3 ) Judgment of 24 May 2016 (C‑396/14, EU:C:2016:347).

( 4 ) Directive of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108 p. 33).

( 5 ) Legislative Decree No 50 of 18 April 2016 (GURI No 91 of 19 April 2016, Ordinary Supplement No 10) transposing, inter alia, the provisions of Directive 2014/24 (‘CCP’).

( 6 ) Open Fiber has been the name of Enel Open Fiber since December 2016.

( 7 ) See paragraph 9 of the Commission decision of 15 December 2016 declaring the concentration compatible with the internal market and with the EEA Agreement (Case M.8234 — Enel/CDP Equity/Cassa Depositi e Prestiti/Enel Open Fiber/Metroweb Italia).

( 8 ) OJ 2016 C 427, p. 5.

( 9 ) Council Regulation of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1).

( 10 ) OJ 2017 C 15, p. 1.

( 11 ) Directive of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p. 1).

( 12 ) Case C‑396/14, EU:C:2016:347.

( 13 ) Directive 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.)

( 14 ) Case C‑396/14, EU:C:2016:347.

( 15 ) In particular, Telecom Italia contends that there has been an ‘infringement of the mandatory principle that preselected persons and those who submit tenders must be legally and economically identical, which, for the purposes of the restricted procedure, is laid down by Article 28(2) of Directive 2014/24/EU and the relevant case-law of the Court of Justice’ (paragraph 7.3 of the order for reference).

( 16 ) Paragraph 7.4 of the order for reference.

( 17 ) In that connection, see, for example, judgments of 16 June 2015, Gauweiler and Others (C‑62/14, EU:C:2015:400, paragraphs 24 and 25); of 4 May 2016, Pillbox 38 (C‑477/14, EU:C:2016:324, paragraphs 15 and 16); of 5 July 2016, Ognyanov (C‑614/14, EU:C:2016:514, paragraph 19); of 15 November 2016, Ullens de Schooten (C‑268/15, EU:C:2016:874, paragraph 54); of 28 March 2017Rosneft (C‑72/15, EU:C:2017:236, paragraphs 50 and 155); of 10 July 2018, Jehovan todistajat (C‑25/17, EU:C:2018:551, paragraph 31); and of 4 October 2018, Kantarev (C‑571/16, EU:C:2018:807, paragraph 44).

( 18 ) Paragraph 8.2, in fine, of the order for reference states that ‘it would be possible to come to a different conclusion only if the Court of Justice were to find that EU law prohibits the conclusion of agreements between competing operators in the context of the same tendering procedure in implementation of which a transaction is carried out, such as a merger by absorption, which is in principle permitted by that same EU law.’

( 19 ) ‘The referring court or tribunal may also briefly state its view on the answer to be given to the questions referred for a preliminary ruling. That information may be useful to the Court’ (OJ 2018 C 257, p. 1).

( 20 ) See points 21 to 23, 41 and 42 of this Opinion.

( 21 ) For example, judgment of 26 June 2007, Ordre des barreaux francophones et germanophone and Others (C‑305/05, EU:C:2007:383, paragraph 18).

( 22 ) Case C‑396/14, EU:C:2016:347, paragraph 40.

( 23 ) That principle, ‘the aim of which is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure, requires that all tenderers must be afforded equality of opportunity when formulating their tenders, and therefore implies that the tenders of all competitors must be subject to the same conditions’. Judgment in MT Højgaard and Züblin (C‑396/14, EU:C:2016:347, paragraph 38).

( 24 ) Loc. cit., paragraph 39.

( 25 ) Loc. cit., paragraph 41.

( 26 ) Opinion of Advocate General Mengozzi in MT Højgaard and Züblin (C‑396/14, EU:C:2015:774, point 48).

( 27 ) As explained in paragraphs 10 and 42 of the judgment in MT Højgaard and Züblin (C‑396/14, EU:C:2016:347).

( 28 ) Judgment in MT Højgaard and Züblin (C‑396/14, EU:C:2016:347, paragraph 44), italics added.

( 29 ) Case C‑396/14, EU:C:2016:347.

( 30 ) Point 31 of its written observations.

( 31 ) As Telecom Italia states in its written observations (point 31), ‘in that scenario, the [subsequent] formal legal nature of the absorbed company (Metroweb Sviluppo) is not important …; in reality, it is sufficient that the substantive, rather than legal, identity of the absorbing company (Open Fiber) changes … for the merger to be incompatible with … the principle laid down in Article 28(2) of Directive 2014/24’.

( 32 ) Pursuant to Article 3(1) of Directive 2011/35/EU of the European Parliament and of the Council of 5 April 2011 concerning mergers of public limited liability companies (OJ 2011 L 110, p. 1), ‘“merger by acquisition” shall mean the operation whereby one or more companies are wound up without going into liquidation and transfer to another all their assets and liabilities in exchange for the issue to the shareholders of the company or companies being acquired of shares in the acquiring company and a cash payment, if any, not exceeding 10% of the nominal value of the shares so issued or, where they have no nominal value, of their accounting par value.’

( 33 ) ‘If the principles to be inferred from Article 28(2) were more broadly construed, the consequences would be difficult for contracting authorities to manage and there would be a constant risk of the ex post nullity of acts awarding a contract … in clear contravention of the general principle of the stability of legal situations’ (paragraph 8.3 in fine of the order for reference).

( 34 ) The specific situation referred to in Article 72(1)(d)(ii) is ‘universal or partial succession into the position of the initial contractor, following corporate restructuring, including takeover, merger, acquisition or insolvency, of another economic operator that fulfils the criteria for qualitative selection initially established provided that this does not entail other substantial modifications to the contract and is not aimed at circumventing the application of this Directive’.

( 35 ) That possibility is based on the principle of preservation of the contract and the requirement that any changes in the shareholding structure should not be prejudiced by interference in the normal performance of corporate transactions. The latter could be affected if changes occurring in the capital had a negative impact on restricted procurement procedures. Companies would therefore be prevented from carrying out corporate restructuring programmes.

( 36 ) According to recital 110 in the preamble to Directive 2014/24, ‘… the successful tenderer performing the contract should be able, in particular where the contract has been awarded to more than one undertaking, to undergo certain structural changes during the performance of the contract, such as purely internal reorganisations, takeovers, mergers and acquisitions or insolvency. Such structural changes should not automatically require new procurement procedures for all public contracts performed by that tenderer.’

( 37 ) Judgment of 17 May 2018 (C‑531/16, EU:C:2018:324).

( 38 ) Ibid., paragraph 24.

( 39 ) Judgment of 12 March 2015, eVigilo (C‑538/13, EU:C:2015:166, paragraph 33 and the case-law cited).

( 40 ) For example, judgment of 16 December 2008, Michaniki (C‑213/07, EU:C:2008:731, paragraph 45).

( 41 ) As stated above (point 17), the merger took place on 23 January 2017, while the provisional lists of successful tenderers for the five lots were published on 24 January 2017.

( 42 ) Specializuotas transportas (C‑531/16, EU:C:2018:324, paragraph 29).

( 43 ) Order for reference, paragraph 8.4.

( 44 ) Pursuant to which ‘a concentration with a Community dimension … or which is to be examined by the Commission … shall not be implemented either before its notification or until it has been declared compatible with the common market pursuant to a decision’.

( 45 ) These are the situations referred to in paragraph 29 of the judgment in Specializuotas transportas (C‑531/16, EU:C:2018:324), transcribed above. That situation might have occurred if the merger process had begun before the submission of tenders and the substantive (and unlawful) implementation of the merger prior to the Commission’s decision had affected the subject matter of Enel Open Fiber’s tender in the same way as would have happened if that undertaking and Metroweb Sviluppo had coordinated with one another to align their conduct throughout the successive stages of the procedure, to the detriment of other operators.

( 46 ) Order for reference, paragraph 8.4.