Judgment of the Court (Sixth Chamber) of 27 November 2001 in Joined Cases C-285/99 and C-286/99 (reference for a preliminary ruling from the Consiglio di Stato): Impresa Lombardini SpA — Impresa Generale di Costruzioni v ANAS — Ente nazionale per le strade, Società Italiana per Condotte d'Acqua SpA (C-285/99), and between Impresa Ing. Mantovani SpA and ANAS — Ente nazionale per le strade, Ditta Paolo Bregoli (C-286/99), intervener: Coopsette Soc. coop. arl (C-286/99) (Directive 93/37/EEC — Public works contracts — Award of contracts — Abnormally low tenders — Detailed rules for explanation and rejection applied in a Member State — Obligations of the awarding authority under Community law)
Date: 2002-04-06
Institutions: Court of Justice
Subjects: administrative procedure, entrepreneur, interpretation of the law, market prices, public contract, works contract

6.4.2002

EN

Official Journal of the European Communities

C 84/7

the decision of the Secretary-General of the European Parlia-
ment of 28 October 1996 imposing on him the disciplinary
measure of downgrading, the other party to the proceedings
being: European Parliament (Agent: H. Krück) — the Court,
composed of: F. Macken, President of the Chamber, N. Colner-
ic, C. Gulmann, J.-P. Puissochet and V. Skouris (Rapporteur),
Judges; F.G. Jacobs, Advocate General; H.A. Rühl, Principal
Administrator, for the Registrar, has given a judgment on
27 November 2001, in which it:

concerning the coordination of procedures for the award of
public works contracts (OJ 1993 L 199, p. 54) — the Court
(Sixth Chamber), composed of: N. Colneric, President of the
Second Chamber, acting as President of the Sixth Chamber,
C. Gulmann, J.-P. Puissochet, R. Schintgen (Rapporteur) and
V. Skouris, Judges; D. Ruiz-Jarabo Colomer, Advocate General;
L. Hewlett, Administrator,
for the Registrar, has given a
judgment on 27 November 2001, in which it has ruled:

1. Dismisses the appeal;

2. Orders Z to pay the costs.

(1) OJ C 281 of 2.10.1999.

JUDGMENT OF THE COURT

(Sixth Chamber)

of 27 November 2001

in Joined Cases C-285/99 and C-286/99 (reference for a
preliminary ruling from the Consiglio di Stato): Impresa
Lombardini SpA — Impresa Generale di Costruzioni v
ANAS — Ente nazionale per le strade, Società Italiana per
Condotte d’Acqua SpA (C-285/99), and between Impresa
Ing. Mantovani SpA and ANAS — Ente nazionale per
intervener:
le strade, Ditta Paolo Bregoli

(C-286/99),

Coopsette Soc. coop. arl (C-286/99) (1)

(Directive 93/37/EEC — Public works contracts — Award
of contracts — Abnormally low tenders — Detailed rules for
explanation and rejection applied in a Member State —
Obligations of the awarding authority under Community
law)

(2002/C 84/12)

(Language of the case: Italian)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Joined Cases C-285/99 and C-286/99: reference to the
Court under Article 234 EC) from the Consiglio di Stato (Italy)
for a preliminary ruling in the proceedings pending before that
court between Impresa Lombardini SpA — Impresa Generale
di Costruzioni v ANAS — Ente nazionale per le strade, Società
Italiana per Condotte d’Acqua SpA (C-285/99), and between
Impresa Ing. Mantovani SpA and ANAS — Ente nazionale per
le strade, Ditta Paolo Bregoli (C-286/99), intervener: Coopsette
Soc. coop. arl (C-286/99) — on the interpretation of Article
30(4) of Council Directive 93/37/EEC of 14 June 1993

Article 30(4) of Council Directive 93/37/EEC of 14 June 1993
concerning the coordination of procedures for the award of public
works contracts must be interpreted as follows:

— it precludes a Member State’s legislation and administrative
practice which allow the contracting authority to reject tenders
offering a greater discount than the anomaly threshold as
abnormally low, taking into account only those explanations of
the prices proposed, covering at least 75 % of the basic contract
value mentioned in the contract notice, which tenderers were
required to attach to their tender, without giving the tenderers
the opportunity to argue their point of view, after the opening
of the envelopes, on those elements of the prices proposed which
gave rise to suspicions;

— it also precludes a Member State’s legislation and administrative
practice which require the contracting authority to take into
consideration, for the purposes of examining abnormally low
tenders, only explanations based on the economy of
the
construction method, technical solutions chosen, or exceptionally
favourable conditions available to the tenderer, but not expla-
nations relating to all those elements for which minimum values
are laid down by law, regulation or administrative provision or
can be ascertained from official data;

— however, provided all the requirements it imposes are otherwise
complied with and the aims pursued by Directive 93/37 are
not defeated, it does not in principle preclude a Member State’s
legislation and administrative practice which, in the matter of
identifying and examining abnormally low tenders, first, require
all tenderers, under threat of exclusion from participation in the
contract, to accompany their tender with explanations of the
prices proposed, covering at least 75 % of the basic value of
that contract, and, second, apply a method of calculating the
anomaly threshold based on the average of all the tenders
received for the tender procedure in question, so that tenderers
are not in a position to know that threshold at the time they
lodge their file; the result produced by applying that calculation
method must, however, be capable of being reconsidered by the
contracting authority.

(1) OJ C 314 of 30.10.1999.