Joined Cases C-147/06 and C-148/06: Judgment of the Court (Fourth Chamber) of 15 May 2008 (reference for a preliminary ruling from the Consiglio di Stato (Italy)) — SECAP SpA (C-147/06) v Comune di Torino, intervening parties: Tecnoimprese Srl, Gambarana Impianti Snc, ICA Srl, Cosmat Srl, Consorzio Ravennate, ARCAS SpA, Regione Piemonte, and Santorso Soc. coop. arl (C-148/06) v Comune di Torino, intervening parties: Bresciani Bruno Srl, Azienda Agricola Tekno Green Srl, Borio Giacomo Srl, Costrade Srl (Public works contracts — Award of contracts — Abnormally low tenders — Exclusion rules — Works contracts not reaching the thresholds laid down in Directives 93/37/EEC and 2004/18/EC — Obligations upon the contracting authorities deriving from the fundamental principles of Community law)
Date: 2008-05-15
Institutions: Court of Justice
Subjects: EU law - national law, Italy, administrative procedure, award of contract, interpretation of the law, public contract, works contract

5.7.2008

EN

Official Journal of the European Union

C 171/3

Re:

Parties to the main proceedings

Annulment of Council Decision 2004/833/CFSP of 2 December
2004 implementing Joint Action 2002/589/CFSP with a view to
a European Union contribution to ECOWAS in the framework
of the Moratorium on Small Arms and Light Weapons (OJ 2004
L 359, p. 65) and a declaration of the unlawfulness of Council
Joint Action 2002/589/CFSP of 12 July 2002 on the European
Union's contribution to combating the destabilising accumula-
tion and spread of small arms and light weapons and repealing
Joint Action 1999/34/CFSP (OJ 2002 L 191, p. 1)

Operative part of the judgment

Applicant: SECAP SpA (C-147/06), Santorso Soc. coop. arl
(C-148/06)

Defendant: Comune di Torino

Intervening parties: Tecnoimprese Srl, Gambarana Impianti Snc,
ICA Srl, Cosmat Srl, Consorzio Ravennate, ARCAS SpA,
Regione Piemonte (C-147/06), Bresciano Bruno Srl, Azienda
Argicola Tekno Green Srl, Borio Giacomo Srl, Costrade Srl
(C-148/06)

1. Annuls Council Decision 2004/833/CFSP of 2 December 2004
implementing Joint Action 2002/589/CFSP with a view to a
European Union contribution to ECOWAS in the framework of the
Moratorium on Small Arms and Light Weapons.

Re:

2. Orders the Commission of

the European Communities and the

Council of the European Union to bear their own costs.

3. Orders the Kingdom of Denmark,

the
French Republic, the Kingdom of the Netherlands, the Kingdom of
Sweden,
the United Kingdom of Great Britain and Northern
Ireland and the European Parliament to bear their own costs.

the Kingdom of Spain,

(1) OJ C 82, 14.4.2007.

Judgment of the Court (Fourth Chamber) of 15 May 2008
(reference for a preliminary ruling from the Consiglio di
Stato (Italy)) — SECAP SpA (C-147/06) v Comune di
Torino, intervening parties: Tecnoimprese Srl, Gambarana
Impianti Snc, ICA Srl, Cosmat Srl, Consorzio Ravennate,
ARCAS
Santorso
Soc. coop. arl (C-148/06) v Comune di Torino, intervening
parties: Bresciani Bruno Srl, Azienda Agricola Tekno Green
Srl, Borio Giacomo Srl, Costrade Srl

Piemonte,

Regione

SpA,

and

(Joined Cases C-147/06 and C-148/06) (1)

(Public works contracts — Award of contracts — Abnormally
low tenders — Exclusion rules — Works contracts not
reaching the thresholds laid down in Directives 93/37/EEC
and 2004/18/EC — Obligations upon the contracting authori-
ties deriving from the fundamental principles of Community
law)

(2008/C 171/04)

Language of the case: Italian

Referring court

Consiglio di Stato

Reference for a preliminary ruling — Consiglio di Stato — Inter-
pretation of 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 (OJ 1993 L 199, p. 54) and
of Article 55(1) and (2) 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) — Abnormally low tenders — Extent
of the obligation to set in motion an examination procedure

Operative part of the judgment

The fundamental rules of the EC Treaty on freedom of establishment
and freedom to provide services and the general principle of non-discri-
mination preclude national legislation which, with regard to contracts
with a value below the threshold set by Article 6(1)(a) of Council
Directive 93/37/EEC of 14 June 1993 concerning the coordination of
procedures for the award of public works contracts, as amended by
European Parliament and Council Directive 97/52/EC of 13 October
1997, which are of certain cross-border interest, imposes an absolute
duty on the contracting authorities, where the number of valid tenders
is greater than five, automatically to exclude tenders considered to be
abnormally low in relation to the goods, works or services according to
a mathematical
legislation without
allowing those contracting authorities any possibility of verifying the
those tenders by requesting the tenderers
constituent elements of
concerned to provide details of those elements. That would not be the
case if national or local legislation or even the contracting authorities
concerned were to set a reasonable threshold above which abnormally
low tenders were automatically excluded on account of there being an
unduly large number of tenders, which might oblige the contracting
authorities to examine on an inter partes basis such a high number of
bids that it would exceed their administrative capacity or might, due to
the delay which such an examination would entail,
jeopardise the
implementation of the project.

criterion laid down by that

(1) OJ C 143, 17.6.2006.
OJ C 154, 1.7.2006.