Case C-179/01: Reference for a preliminary ruling by the Consiglio di Stato, sitting in its judicial capacity, by order of that court of 13 February 2001 in the case of Impresa Binda & C. s.p.a. against Comune di Torino, intervener: ED.ART. s.r.l.
Date: 2001-07-14
Institutions: Court of Justice
Subjects: administrative procedure, interpretation of the law, invitation to tender, public contract

14.7.2001

EN

Official Journal of the European Communities

C 200/45

— the suggestion that it was permissible for NALOO to
supplement its 1990 complaint because it could not have
challenged the May 1991 Decision is incorrect and, even
if it was permissible for NALOO to act in that way, it was
not permissible for NALOO to wait three years before
submitting the Supplemental Complaint;

— the Court of First Instance’s conclusion that the 1998
Decision did not merely confirm a decision that had
already been made is misconceived and wrong so far as
the Article 63 (1) aspect of the Supplemental Complaint
is concerned;

— the fact that the pre-1 April 1990 situation had been
regarded as closed by the Commission and NALOO on
the basis of a mistake as to the juridiction of domestic
courts is irrelevant;

— NALOO’s claim, and the Court of First Instance’s apparent
acceptance of it, blatantly offend the principles of legal
certainty and non-retrospectivity because its case is that
conduct that was not, at the time of its commission, in
breach of any legal prohibition or right that the members
of NALOO could at that time invoke before a national
court, can at any time in the future (and after the conduct
has ceased) produce for the benefit of the members of
NALOO a right to claim damages.

T h e C o m m i s s i o n ’ s o b l i g a t i o n t o i n v e s t i g a t e
N A L O O ’ s c o m p l a i n t

Since NALOO’s Supplemental Complaint did not seek, and
was not directed at seeking, the adoption of a recommendation
under Article 63(1), the Commission lay under no obligation
to investigate it and the Court of First Instance erred in holding
otherwise.

T h e a l l e g e d f a i l u r e o f
t a k e i n t o a c c o u n t t h e a v a i l a b l e e v i d e n c e

t h e C o m m i s s i o n t o

The reasons on which the Article 63(1) aspect of the 1998
Decision was based were set out in that decision. Those
reasons did not refer to the facts or the evidence because they
were not relevant to the basis on which the Commission made
its decision. A decision cannot be annulled on the ground that
it fails to state the reasons on which it was not based and it
follows that the Court of First Instance erred in holding that
the 1998 Decision was vitiated by a failure to state reasons.

Reference for a preliminary ruling by the Consiglio di
Stato, sitting in its judicial capacity, by order of that court
of 13 February 2001 in the case of Impresa Binda &
C. s.p.a. against Comune di Torino, intervener: ED.ART.
s.r.l.

(Case C-179/01)

(2001/C 200/81)

Reference has been made to the Court of Justice of the
European Communities by order of the Consiglio di Stato
(Council of State), sitting in its judicial capacity, of 13 February
2001, received at the Court Registry on 24 April 2001, for a
preliminary ruling in the case of Impresa Binda & C. s.p.a.
against Comune di Torino, intervener: ED.ART. s.r.l., on the
following questions:

1.

In calls for tenders for public works contracts, do clauses
excluding undertakings which have not submitted with
their tenders explanations concerning components of the
price indicated, amounting to at least 75 % of the figure
specified in the tender conditions, represent an obstacle
to the application of Article 30(4) of Directive 93/37 (1)?

2. Does the establishment of a mechanism for automatically
identifying tenders which overstep a threshold indicative
of irregularities and whose validity should therefore be
checked, based on an ad hoc test and an arithmetical
mean, which is such that undertakings are unable to
ascertain that threshold in advance, represent an obstacle
to the application of Article 30(4) of Directive 93/37?

3. Does the fact that provision is made for a prior exchange
of views, without the undertaking which has allegedly
submitted an irregular tender having an opportunity to
state its reasons, after the opening of the envelopes and
before the adoption of the measure excluding it, represent
an obstacle to the application of Article 30(4) of Direc-
tive 93/37?

4. Does a provision under which the contracting authority
may take account of explanations relating solely to the
economy of the construction method or the technical
solutions adopted or the exceptionally favourable con-
ditions available to the tenderer represent an obstacle to
the application of Article 30(4) of Directive 93/37?

5. Does the [exclusion of] explanations relating solely to
items for which minimum values can be inferred from
official lists represent an obstacle to the application of
Article 30(4) of Directive 93/37?

(1) OJ C 234, 25.7.98, p. 36.
(2) [1996] ECR II-705.

(1) Council Directive of 14 June 1993 (OJ 1993 L 199, p. 54).