CELEX: C2001/200/81
Language: en
Date: 2001-07-14 00:00:00
Title: 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.

14.7.2001               EN                    Official Journal of the European Communities                                          C 200/45
—      the suggestion that it was permissible for NALOO to               Reference for a preliminary ruling by the Consiglio di
       supplement its 1990 complaint because it could not have           Stato, sitting in its judicial capacity, by order of that court
       challenged the May 1991 Decision is incorrect and, even           of 13 February 2001 in the case of Impresa Binda &
       if it was permissible for NALOO to act in that way, it was        C. s.p.a. against Comune di Torino, intervener: ED.ART.
       not permissible for NALOO to wait three years before                                               s.r.l.
       submitting the Supplemental Complaint;
—      the Court of First Instance’s conclusion that the 1998                                      (Case C-179/01)
       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                                    (2001/C 200/81)
       is concerned;
                                                                         Reference has been made to the Court of Justice of the
—      the fact that the pre-1 April 1990 situation had been             European Communities by order of the Consiglio di Stato
       regarded as closed by the Commission and NALOO on                 (Council of State), sitting in its judicial capacity, of 13 February
       the basis of a mistake as to the juridiction of domestic          2001, received at the Court Registry on 24 April 2001, for a
       courts is irrelevant;                                             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:
—      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        1.   In calls for tenders for public works contracts, do clauses
       conduct that was not, at the time of its commission, in                excluding undertakings which have not submitted with
       breach of any legal prohibition or right that the members              their tenders explanations concerning components of the
       of NALOO could at that time invoke before a national                   price indicated, amounting to at least 75 % of the figure
       court, can at any time in the future (and after the conduct            specified in the tender conditions, represent an obstacle
       has ceased) produce for the benefit of the members of                  to the application of Article 30(4) of Directive 93/37 (1)?
       NALOO a right to claim damages.
                                                                         2.   Does the establishment of a mechanism for automatically
                                                                              identifying tenders which overstep a threshold indicative
                                                                              of irregularities and whose validity should therefore be
The Commission’s obligation to investigate                                    checked, based on an ad hoc test and an arithmetical
NALOO’s complaint                                                             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?
Since NALOO’s Supplemental Complaint did not seek, and
was not directed at seeking, the adoption of a recommendation            3.   Does the fact that provision is made for a prior exchange
under Article 63(1), the Commission lay under no obligation                   of views, without the undertaking which has allegedly
to investigate it and the Court of First Instance erred in holding            submitted an irregular tender having an opportunity to
otherwise.                                                                    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-
The alleged failure of the Commission to                                      tive 93/37?
take into account the available evidence
                                                                         4.   Does a provision under which the contracting authority
                                                                              may take account of explanations relating solely to the
The reasons on which the Article 63(1) aspect of the 1998                     economy of the construction method or the technical
Decision was based were set out in that decision. Those                       solutions adopted or the exceptionally favourable con-
reasons did not refer to the facts or the evidence because they               ditions available to the tenderer represent an obstacle to
were not relevant to the basis on which the Commission made                   the application of Article 30(4) of Directive 93/37?
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           5.   Does the [exclusion of] explanations relating solely to
follows that the Court of First Instance erred in holding that                items for which minimum values can be inferred from
the 1998 Decision was vitiated by a failure to state reasons.                 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).