Consorzio Italian Management and Catania Multiservizi SpA v Rete Ferroviaria Italiana SpA.
Date: 2018-04-19
21


As a preliminary point, it should be recalled that, according to the Court’s settled case-law, in the context of the cooperation between the Court of Justice and the national courts, the need to provide an interpretation of EU law which will be of use to the national court means that the national court is bound to observe scrupulously the requirements concerning the content of a request for a preliminary ruling, expressly set out in Article 94 of the Rules of Procedure of the Court of Justice of which the national court is presumed to be aware (judgment of 26 July 2017, Persidera, C‑112/16, EU:C:2017:597, paragraph 27 and the case-law cited). Moreover, those requirements are set out in the Court’s recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ 2012 C 338, p. 1).
22


Thus, it is essential, as is stated in Article 94(a) and (c) of the Rules of Procedure, that the reference for a preliminary ruling itself contain a summary of the relevant findings of fact, or at least, an account of the facts on which the questions are based, and a statement of the reasons which prompted the national court to inquire about the interpretation or validity of certain provisions of EU law, and the relationship between those provisions and the national legislation applicable to the main proceedings (see, to that effect, judgment of 26 July 2017, Persidera, C‑112/16, EU:C:2017:597, paragraphs 28 and 29 and the case-law cited).
23


It should be noted, in that regard, that the order for reference gives no explanation of the relevance of the interpretation of Article 3(3) TEU or Articles 26, 57, 58 and 101 TFEU for the resolution of the dispute in the main proceedings. The same is true of Article 56 TFEU, in so far as it relates to aspects other than those which are examined by the Court in paragraph 32 above.
26


In that regard, it follows from the Court’s case-law that Directive 2004/17 in fact applies not only to contracts awarded in the sphere of one of the activities expressly listed in Articles 3 to 7 thereof, but also to contracts which, even though they are different in nature and could as such normally fall within the scope 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), are used in the exercise of activities defined in Directive 2004/17. Consequently, where a contract awarded by a contracting entity is connected with an activity which that entity carries out in the sectors listed in Articles 3 to 7 of that directive, that contract is subject to the procedures laid down in that directive (see, to that effect, judgment of 10 April 2008, Ing Aigner, C‑393/06, EU:C:2008:213, paragraphs 56 to 59).
30


Similarly, the general principles underlying Directive 2004/17, in particular the principle of equal treatment and the consequent obligation of transparency enshrined in Article 10 of that directive do not preclude such rules either. On the contrary, it cannot be ruled out that a price review after the contract has been awarded may run counter to that principle and that obligation (see, by analogy, judgment of 7 September 2016, Finn Frogne, C‑549/14, EU:C:2016:634, paragraph 40). Indeed, as the Commission points out in its written observations, the contract price is an element of great importance in the assessment of tenders by a contracting entity, as well as in its decision to award the contract to an operator. This is also clear from the reference to the price in both of the criteria for the award of contracts mentioned in Article 55(1) of Directive 2004/17. In those circumstances, rules of national law which do not provide for periodic price review after the award of contracts in the sectors covered by that directive are, in fact, likely to encourage compliance with those principles.
33


Thirdly, as regards the interpretation of Article 16 of the Charter, it must be recalled that, under Article 51(1) of the Charter, its provisions are addressed to the Member States only when they are implementing EU law. Under Article 51(2) of the Charter, the Charter does not establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties. Accordingly, the Court is called upon to interpret EU law, in the light of the Charter, within the limits of the powers conferred on it (see judgment of 10 July 2014, Julián Hernández and Others, C‑198/13, EU:C:2014:2055, paragraph 32 and the case-law cited).
34


In that regard, it should be borne in mind that the concept of ‘implementing Union law’ within the meaning of Article 51 of the Charter presupposes a degree of connection between the measure of EU law and the national measure at issue. In particular, the Court has ruled that fundamental European Union rights could not be applied in relation to national legislation because the provisions of EU law in the area concerned did not impose any specific obligation on Member States with regard to the situation at issue in the main proceedings (see judgment of 10 July 2014, Julián Hernández and Others, C‑198/13, EU:C:2014:2055, paragraphs 34 and 35 and the case-law cited).
35


In the present case, since it is apparent from paragraphs 29 and 30 above that neither Directive 2004/17 nor its underlying general principles impose on Member States a specific obligation to lay down provisions requiring the contracting entity to grant its contractual partner an upwards price review after the award of a contract, the provisions of Legislative Decree No 163/2006 at issue in the main proceedings, in so far as they do not provide for periodic price review within the sectors covered by that directive, do not have any connection with that directive and cannot, therefore, be regarded as implementing EU law.
37


It is apparent from the case-law of the Court that where it is quite obvious that the interpretation of a provision of EU law or the assessment of its validity, which is sought by the national court bears no relation to the actual facts of the main action or its purpose or where the problem is hypothetical, the Court may reject as inadmissible a request made by that national court (see, to that effect, judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 50 and the case-law cited).