Consorzio Stabile Libor Lavori Pubblici v Comune di Milano.
Date: 2014-07-10
24. It should be borne in mind at the outset that the application of Directive 2004/18 to a public contract is subject to the condition that the estimated value of the contract reaches the threshold laid down in Article 7 of that directive. Otherwise, the fundamental rules and the general principles of the Treaty apply, provided that the contract concerned has a certain cross-border interest in the light, inter alia, of its value and the place where it is performed (see, to that effect, Ordine degli Ingegneri della Provincia di Lecce and Others , C‑159/11, EU:C:2012:817, paragraph 23 and the case-law cited). It is for the referring court to examine whether there is such an interest (see, to that effect, Belgacom , C‑221/12, EU:C:2013:736, paragraph 30 and the case-law cited).
25. So, although the public works contract at issue in the main proceedings does not reach the threshold laid down in Article 7(c) of that directive, it must be concluded, in so far as the referring court considers that that contract has a certain cross-border interest, that those fundamental rules and general principles apply in the main proceedings.
28. So far as concerns Articles 49 TFEU and 56 TFEU, according to settled case-law of the Court, those provisions preclude any national measure which, even though it is applicable without discrimination on grounds of nationality, is liable to prohibit, impede or render less attractive the exercise by nationals of the European Union of the freedom of establishment and the freedom to provide services guaranteed by those provisions of the Treaty (see, inter alia, Serrantoni and Consorzio stabile edili , C‑376/08, EU:C:2009:808, paragraph 41).
29. As regards public contracts, it is the concern of the European Union, in relation to the freedom of establishment and the freedom to provide services, to ensure the widest possible participation by tenderers in a call for tenders (see, to that effect, CoNISMa , C‑305/08, EU:C:2009:807, paragraph 37). The application of a provision which excludes persons who have committed serious infringements of national rules governing social security contributions from participating in procedures for the award of public works contracts, such as Article 38(1)(i) of Legislative Decree No 163/2006, may compromise the widest possible participation by tenderers in a call for tenders.
31. However, such a restriction may be justified in so far as it pursues a legitimate objective in the public interest, and to the extent that it complies with the principle of proportionality in that it is suitable for securing the attainment of that objective and does not go beyond what is necessary in order to attain it (see, to that effect, Serrantoni and Consorzio stabile edili , EU:C:2009:808, paragraph 44).
35. In the second place, as regards the level of the exclusion threshold laid down in the national legislation, it should be borne in mind that, so far as concerns public contracts falling within the scope of Directive 2004/18, Article 45(2) of that directive leaves the application of the cases of exclusion mentioned 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, inter alia in subparagraphs (e) and (f), to the provisions of national law (see, as regards Article 29 of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1), La Cascina and Others , C‑226/04 and C‑228/04, EU:C:2006:94, paragraph 21). In addition, under the second subparagraph of Article 45(2), Member States are to specify, in accordance with their national law and having regard for EU law, the implementing conditions for that paragraph.
36. Accordingly, Article 45(2) of Directive 2004/18 does not provide for uniform application at EU level of the grounds of exclusion it mentions, since the Member States may choose not to apply those grounds of exclusion at all 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 45(2) less onerous or more flexible (see, as regards Article 29 of Directive 92/50, La Cascina and Others , EU:C:2006:94, paragraph 23).
37. Article 45(2)(e) of Directive 2004/18 allows Member States to exclude from participation in a public contract any economic operator which has failed to fulfil its obligations relating to the payment of social security contributions without any minimum amount of outstanding contributions being set. In those circumstances, setting such a minimum amount in national law amounts to tempering the grounds for exclusion under that provision and cannot therefore be regarded as going beyond what is necessary. That is all the more true with regard to public contracts which fall below the threshold laid down in Article 7(c) of that directive and are thus not subject to the strict special procedures laid down in the directive.
39. Moreover, this situation can be distinguished from that in Hartlauer  (C‑169/07, EU:C:2009:141), in which the Court held that the national legislation in question was not appropriate for ensuring attainment of the objectives pursued in so far as it did not attain them in a consistent and systematic manner. By contrast with the legislation examined in Hartlauer , the measure at issue in the main proceedings is based, as follows from paragraph 34 above, on objective, non-discriminatory criteria known in advance (see, to that effect, Hartlauer , EU:C:2009:141, paragraph 64).