22

In those circumstances the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Should the company Poste Italiane, on the basis of characteristics set out above, be classified as a “body governed by public law” within the meaning of Article 3(1)(d) of [the Public Procurement Code] and of the relevant EU directives (2014/23, 2014/24 and 2014/25)? (2) Should that classification be extended to include the wholly owned subsidiary company [Poste Tutela] – whose merger with Poste Italiane is already under way – bearing in mind what is stated in recital 46 of Directive 2014/23 concerning controlled legal persons? (See, also, to that effect, judgment of 5 October 2017[, LitSpecMet (C‑567/15, EU:C:2017:736)]: competitive tendering requirement for companies controlled by public authorities; judgment No 6211 of the Consiglio di Stato [(Council of State, Italy)], Chamber VI, of 24 November 2011). (3) Are those companies, as contracting entities, required to conduct competitive tendering procedures only when awarding contracts in connection with activities carried out in the special sectors, pursuant to Directive 2014/25 – such contracting entities having to be deemed bodies governed by public law under the rules laid down in Part II of the Public Procurement Code – whilst, on the other hand, having unfettered freedom and being subject only to private-sector rules for contracts not connected to such sectors, bearing in mind the principles set out in recital 21 and Article 16 of Directive 2014/23? (4) On the other hand, with regard to contracts considered not to be directly connected with the specific activities covered by the special sectors, are those companies, where they satisfy the requirements for being classified as bodies governed by public law, subject to the general Directive 2014/24 (and therefore to the rules governing competitive tendering procedures), even when performing primarily entrepreneurial activities under competitive market conditions, having developed from when they were originally established? (5) In any event, in the case of offices in which activities connected to the universal service and activities unrelated to it are both performed, may the concept of functionality, in connection with a service which is specifically in the public interest, be said to be inapplicable as regards contracts relating to ordinary and extraordinary maintenance, cleaning, furnishing, caretaking and storage services for such offices? (6) Finally, were the arguments of Poste Italiane to be endorsed, should the fact that a decision to organise a competitive tendering procedure has been taken without there being any obligation to conduct such a procedure – which is not subject to all the guarantees of transparency and equal treatment, as governed by the Public Procurement Code – and the fact that the decision is duly published without any further notice in that regard in the Gazzetta Ufficiale della Repubblica italiana (Official Journal of the Italian Republic) and the Official Journal of the European Union, be regarded as incompatible with the established principle that the legitimate expectations of tenderers must be protected?’