SECAP SpA (C-147/06) and Santorso Soc. coop. arl (C-148/06) v Comune di Torino.
Date: 2008-05-15
19. The strict special procedures prescribed by the Community directives coordinating public procurement procedures apply only to contracts whose value exceeds a threshold expressly laid down in each of those directives (order in Case C‑59/00 Vestergaard  [2001] ECR I‑9505, paragraph 19). Accordingly, the rules in those directives do not apply to contracts with a value below the threshold set by those directives (see, to that effect, Case C‑412/04 Commission  v Italy [2008] ECR I‑0000, paragraph 65).
20. That does not mean, however, that contracts below the threshold are excluded from the scope of Community law (order in Vestergaard , paragraph 19). According to the established case-law of the Court concerning the award of contracts which, on account of their value, are not subject to the procedures laid down by Community rules, the contracting authorities are nonetheless bound to comply with the fundamental rules of the Treaty and the principle of non-discrimination on the ground of nationality in particular ( Telaustria and Telefonadress , paragraph 60; the order in Vestergaard , paragraphs 20 and 21; Case C‑264/03 Commission  v France  [2005] ECR I‑8831, paragraph 32; and Case C‑6/05 Medipac-Kazantzidis  [2007] ECR I‑4557, paragraph 33).
21. However, according to the case-law of the Court, the application of the fundamental rules and general principles of the Treaty to procedures for the award of contracts below the threshold for the application of Community directives is based on the premiss that the contracts in question are of certain cross-border interest (see, to that effect, Case C‑507/03 Commission  v Ireland  [2007] ECR I‑0000, paragraph 29, and Commission  v Italy , paragraphs 66 and 67).
24. Consequently, that rule, which is formulated in clear, imperative and absolute terms, deprives tenderers who have submitted abnormally low bids of the opportunity to demonstrate that those bids are viable and genuine. That aspect of the legislation at issue in the main proceedings could have consequences incompatible with Community law if, in view of its particular characteristics, a given contract is likely to be of certain cross-border interest and therefore attract operators from other Member States. A works contract could, for example, be of such cross-border interest because of its estimated value in conjunction with its technical complexity or the fact that the works are to be located in a place which is likely to attract the interest of foreign operators.
28. Accordingly, the application of the rule requiring the automatic exclusion of abnormally low tenders to contracts of certain cross-border interest could deprive economic operators from other Member States of the opportunity of competing more effectively with operators located in the Member State in question and thereby affect their access to the market in that State, thus impeding the exercise of freedom of establishment and freedom to provide services, which constitutes a restriction on those freedoms (see, to that effect, Case C-79/01 Payroll and Others  [2002] ECR I‑8923, paragraph 26; Case C‑442/02 CaixaBank France  [2004] ECR I‑8961, paragraphs 12 and 13; and Case C‑452/04 Fidium Finanz  [2006] ECR I‑9521, paragraph 46).
29. By applying such legislation to contracts of certain cross-border interest, the contracting authorities, lacking any power to assess the soundness and viability of abnormally low tenders, cannot comply with their obligation to observe the fundamental rules of the Treaty on freedom of movement or the general principle of non-discrimination, as required by the case-law of the Court cited at paragraph 20 above. It is also contrary to the contracting authorities’ own interests for them to be deprived of such power, since they are not able to assess tenders which are submitted to them under conditions of effective competition and therefore to award the contract by applying the criteria, which are also laid down in the public interest, of the lowest price or the most economically advantageous tender.
31. It is permissible, however, for legislation to lay down objective criteria, at national or local level, indicating that there is certain cross-border interest. Such criteria could be, inter alia, the fact that the contract in question is for a significant amount, in conjunction with the place where the work is to be carried out. The possibility of such an interest may also be excluded in a case, for example, where the economic interest at stake in the contract in question is very modest (see, to that effect, Case C‑231/03 Coname  [2005] ECR I‑7287, paragraph 20). However, in certain cases, account must be taken of the fact that the borders straddle conurbations which are situated in the territory of different Member States and that, in those circumstances, even low-value contracts may be of certain cross-border interest.
34. As regards the actions in the main proceedings, it is for the referring court to carry out a detailed assessment of all the relevant facts concerning both the contracts in question in order to determine whether, in each case, there is certain cross-border interest.