Autorità Garante della Concorrenza e del Mercato - Antitrust and Coopservice Soc. coop. arl v Azienda Socio-Sanitaria Territoriale della Vallecamonica - Sebino (ASST) and Others.
Date: 2018-12-19
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That being said, in accordance with the Court’s settled case-law, the procedure provided for by Article 267 TFEU is an instrument of cooperation between the Court of Justice and national courts, by means of which the former provides the latter with the points of interpretation of EU law necessary in order for them to decide the disputes before them (see, in particular, to that effect, judgments of 16 July 1992, Meilicke, C‑83/91, EU:C:1992:332, paragraph 22, and of 20 December 2017, Global Starnet, C‑322/16, EU:C:2017:985, paragraph 24).
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In the context of that cooperation, questions relating to EU law enjoy a presumption of relevance, which means that the Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, to that effect, judgments of 5 December 2006, Cipolla and Others, C‑94/04 and C‑202/04, EU:C:2006:758, paragraph 25, and of 11 May 2017, Archus and Gama, C‑131/16, EU:C:2017:358, paragraph 42).
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Moreover, EU law does not require national courts to raise of their own motion an issue concerning the breach of provisions of EU law where examination of that issue would oblige them to abandon the passive role assigned to them by going beyond the ambit of the dispute defined by the parties themselves and relying on facts and circumstances other than those on which the party with an interest in application of those provisions bases his claim (see, to that effect, judgment of 14 December 1995, van Schijndel and van Veen, C‑430/93 and C‑431/93, EU:C:1995:441, paragraphs 21 and 22).
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In that regard, it should be recalled, as a preliminary point, that, in accordance with the Court’s settled case-law, the applicable directive is, as a rule, the one in force when the contracting authority chose the type of procedure to be followed and decides definitively whether it is necessary for a prior call for tenders to be issued for the award of a public contract. Conversely, a directive is not applicable if the period prescribed for its transposition expired after that point in time (see, to that effect, judgments of 10 July 2014, Impresa Pizzarotti, C‑213/13, EU:C:2014:2067, paragraph 31, and of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraph 83).
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As the wording of that provision in isolation does not allow it to be determined whether the requirement to be an original party to the framework agreement applies to both contracting authorities and economic operators or solely to the latter, it is necessary to take into account not only the terms of that provision, but also its context and the objectives pursued by the legislation of which it is a part (see, to that effect, judgment of 17 November 1983, Merck, 292/82, EU:C:1983:335, paragraph 12).
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Third, that interpretation ensures that the fundamental principles governing the awarding of public contracts, which apply to the conclusion of framework agreements in accordance with the first subparagraph of Article 32(2) of Directive 2004/18, are observed. Generally, a framework agreement falls within the concept of public procurement to the extent that it turns into a whole the various specific contracts that it governs (see, to that effect, judgments of 4 May 1995, Commission v Greece, C‑79/94, EU:C:1995:120, paragraph 15; of 29 November 2007, Commission v Italy, C‑119/06, not published, EU:C:2007:729, paragraph 43; and of 11 December 2014, Azienda sanitaria locale n. 5 Spezzino and Others, C‑113/13, EU:C:2014:2440, paragraph 36).
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Not only the principles of equal treatment and non-discrimination, but also the principle of transparency that stems from them (see, to that effect, judgment of 17 December 2015, UNIS and Beaudout Père et Fils, C‑25/14 and C‑26/14, EU:C:2015:821, paragraph 38) imply that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or tender specifications so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, second, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the contract in question (see, to that effect, judgment of 13 July 2017, INGSTEEL and Metrostav, C‑76/16, EU:C:2017:549, paragraph 34).