Joined Cases C-403/23 and C-404/23, Luxone and Others: Judgment of the Court (Eighth Chamber) of 26 September 2024 (requests for a preliminary ruling from the Consiglio di Stato – Italy) – Luxone Srl, acting on its own behalf and as agent of the temporary group of undertakings to be formed with Iren Smart Solutions SpA (C-403/23), Sofein SpA, formerly Gi One SpA (C-404/23) v Consip SpA (References for a preliminary ruling – Public procurement – Directive 2004/18/EC – Article 47(3) – Article 48(4) – Exclusion of a tenderer from the tender procedure – Exclusion of the possibility to reduce the initial membership of a temporary group of undertakings which has submitted a tender – Not compatible – Period of validity of a tender – Tender does not lapse at the end of its term – Obligation under the case-law to expressly withdraw that tender – Loss of the provisional security accompanying that tender – Automatic application of that measure – Article 2 – Principles relating to public procurement – Principle of proportionality – Principle of equal treatment – Obligation of transparency – Infringement)
Date: 2024-09-26
Institutions: Court of Justice
Subjects: administrative sanction, award of contract, consortium, equal treatment, freedom to provide services, general legal principle, principle of proportionality, public procurement, right of establishment, tendering








C_202406624EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2024/6624


11.11.2024






Judgment of the Court (Eighth Chamber) of 26 September 2024 (requests for a preliminary ruling from the Consiglio di Stato – Italy) – Luxone Srl, acting on its own behalf and as agent of the temporary group of undertakings to be formed with Iren Smart Solutions SpA (C-403/23), Sofein SpA, formerly Gi One SpA (C-404/23) v Consip SpA


(Joined Cases C-403/23 and C-404/23,
                (1)
Luxone and Others)

(References for a preliminary ruling - Public procurement - Directive 2004/18/EC - Article 47(3) - Article 48(4) - Exclusion of a tenderer from the tender procedure - Exclusion of the possibility to reduce the initial membership of a temporary group of undertakings which has submitted a tender - Not compatible - Period of validity of a tender - Tender does not lapse at the end of its term - Obligation under the case-law to expressly withdraw that tender - Loss of the provisional security accompanying that tender - Automatic application of that measure - Article 2 - Principles relating to public procurement - Principle of proportionality - Principle of equal treatment - Obligation of transparency - Infringement)
(C/2024/6624)
Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings


Appellants: Luxone Srl, acting on its own behalf and as agent of the temporary group of undertakings to be formed with Iren Smart Solutions SpA (C-403/23), Sofein SpA, formerly Gi One SpA (C-404/23)

Respondent: Consip SpA

Interveners: Elba Compagnia di Assicurazioni e Riassicurazioni SpA, Sofein SpA, formerly Gi One SpA (C-403/23), Iren Smart Solutions SpA, Consorzio Stabile Energie Locali Scarl, City Green Light Srl, Enel Sole Srl, Luxone Srl (C-404/23)

Operative part of the judgment







1.


Article 47(3) and Article 48(4) 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, read in conjunction with the general principle of proportionality,
must be interpreted as precluding national legislation which excludes the possibility for original members of a temporary group of tendering undertakings to withdraw from that group where the period of validity of the tender submitted by that group elapses and the contracting authority seeks to extend the validity of the tenders submitted to it, provided that it is established, first, that the remaining members of that group meet the requirements laid down by the contracting authority and, secondly, that their continued participation in the tendering procedure in question does not place other tenderers at a competitive disadvantage.










2.


The principles of proportionality and of equal treatment, and the obligation of transparency, as set out in Article 2 and recital 2 of Directive 2004/18,
must be interpreted as precluding national legislation which provides for the automatic forfeiture of the provisional security provided by a tenderer following its exclusion from a procedure for the award of a public service contract, even though the service in question has not been awarded to it.






(1)  
            OJ C 310, 30.10.2023.


ELI: http://data.europa.eu/eli/C/2024/6624/oj
ISSN 1977-091X (electronic edition)