La Cascina Soc. coop. arl and Zilch Srl v Ministero della Difesa and Others (C-226/04) and Consorzio G. f. M. v Ministero della Difesa and La Cascina Soc. coop. arl (C-228/04).
Date: 2006-02-09
20. In order to provide a useful reply to those questions, it must be observed as a preliminary point that the Community directives on public contracts aim to coordinate national procedures in that field. As regards, more particularly, public service contracts, the third recital in the preamble to the Directive states that the objectives set out in the first and second recitals ‘… require the coordination of the procurement procedures for the award of public service contracts’.
21. As regards that coordination, Article 29 of the Directive lays down seven grounds for excluding candidates from participation in a contract, which relate to their professional honesty, solvency and reliability. That provision leaves the application of all those cases of exclusion to the assessment of the Member States, as evidenced by the phrase ‘may be excluded from participation in a contract’, which appears at the beginning of that provision and makes express reference, in subparagraphs (e) and (f), to the provisions of national law.
22. Thus, as the Commission of the European Communities rightly pointed out, Article 29 itself lays down the only limits to the power of the Member States in the sense that they cannot provide for grounds of exclusion other than those mentioned therein. That power of the Member States is also limited by the general principles of transparency and equal treatment (see, inter alia, Case C-470/99 Universale-Bau and Others  [2002] ECR I-11617, paragraphs 91 and 92, and Case C-421/01 Traunfellner  [2003] ECR I-11941, paragraph 29).
23. Accordingly, Article 29 of the Directive does not provide in this field for uniform application of the grounds of exclusion mentioned therein at Community level, since the Member States may choose not to apply those grounds of exclusion at all and opt for the widest possible participation in procedures for the award of public contracts or to incorporate them into national law with varying degrees of rigour according to legal, economic or social considerations prevailing at national level. In that context the Member States have the power to make the criteria laid down in Article 29 of the Directive less onerous or more flexible.
31. It is, therefore, for national rules to determine the date by which or the period within which the persons concerned must have made the payments corresponding to their obligations or, as regards the other situations contemplated by the national court which are dealt with in paragraphs 34 to 39 of this judgment, must have proved that the conditions for subsequent regularisation have been fulfilled. That period may be, inter alia, the final date for lodging the request to participate in the contract, the date on which the invitation to tender was sent, the final date on which the candidates’ tenders are to be lodged, the date on which tenders are considered by the contracting authority or even immediately prior to the award of the contract.
32. It should be stated, however, that the principles of transparency and equal treatment which govern all procedures for the award of public contracts, according to which the substantive and procedural conditions concerning participation in a contract must be clearly defined in advance, require that the period be determined with absolute certainty and made public in order that the persons concerned may know exactly the procedural requirements and be sure that the same requirements apply to all candidates. That period may be fixed by national legislation or the latter may confer that responsibility on the contracting authorities.