Joined Cases C-182/11 and C-183/11: Judgment of the Court (Third Chamber) of 29 November 2012 (references for a preliminary ruling from the Consiglio di Stato — Italy) — Econord SpA v Comune di Cagno (C-182/11), Comune di Varese, Comune di Solbiate (C-183/11), Comune di Varese (Public service contracts — Directive 2004/18/EC — Contracting authority exercising over a legally distinct successful tenderer control similar to that exercised over its own departments — No obligation to carry out a tendering procedure in accordance with the rules of European Union law ( ‘in-house’ award) — Successful tenderer controlled jointly by several local authorities — Conditions for the applicability of an in-house award)
Date: 2012-11-29
Institutions: Court of Justice
Subjects: EU control, award of contract, interpretation of the law, invitation to tender, legal status, services contract








C_2013026EN.01000701.xml










26.1.2013   


EN


Official Journal of the European Union


C 26/7





Judgment of the Court (Third Chamber) of 29 November 2012 (references for a preliminary ruling from the Consiglio di Stato — Italy) — Econord SpA v Comune di Cagno (C-182/11), Comune di Varese, Comune di Solbiate (C-183/11), Comune di Varese
(Joined Cases C-182/11 and C-183/11) (1)

(Public service contracts - Directive 2004/18/EC - Contracting authority exercising over a legally distinct successful tenderer control similar to that exercised over its own departments - No obligation to carry out a tendering procedure in accordance with the rules of European Union law (‘in-house’ award) - Successful tenderer controlled jointly by several local authorities - Conditions for the applicability of an in-house award)
2013/C 26/12
Language of the cases: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings


Applicant: Econord SpA

Defendants: Comune di Cagno (C-182/11), Comune di Varese, Comune di Solbiate (C-183/11), Comune di Varese

Re:

References for a preliminary ruling — Consiglio di Stato — Interpretation of Articles 49 TFEU and 56 TFEU — Procedures for the award of public service contracts — Award without a call for tenders — Contract for the provision of urban hygiene services awarded by two public authorities, outside any formal procedure for the award of public procurement contracts, to a company in which the contracting authorities hold share capital — No effective control exercised by those authorities over the company providing the services

Operative part of the judgment

Where, in their capacity as contracting authority, a number of public authorities jointly establish an entity with responsibility for carrying out their public service mission, or where a public authority subscribes to such an entity, the condition established by the case-law of the Court of Justice of the European Union to the effect that, in order to be exempted from their obligation to initiate a public tendering procedure in accordance with the rules of European Union law, those authorities must jointly exercise over that entity control similar to the control they exercise over their own departments, is fulfilled where each of those authorities not only holds capital in that entity, but also plays a role in its managing bodies.


(1)  OJ C 211, 16.7.2011.