Tecnoedi Costruzioni Srl v Comune di Fossano.
Date: 2016-10-06
16


The referring court notes that, notwithstanding the fact that the works contract at issue in the main proceedings is for an estimated value of EUR 1158899.97, it cannot be ruled out that the contract does not have certain cross-border interest as Fossano is located within 200 km of the border between France and Italy and several of the tenderers admitted to the tender procedure are Italian companies which are established in regions which are not neighbouring, such as Lazio, at a distance of approximately 600 km, or Campania, at a distance of approximately 800 km from Fossano. Furthermore, in accordance with the Court’s case-law, there may be certain cross-border interest, without its being necessary that an economic operator has actually manifested its interest (judgment of 14 November 2013, Belgacom, C‑221/12, EU:C:2013:736, paragraph 31 and the case-law cited).
19


In accordance with the Court’s settled case-law, the award of contracts which, in view of their value, do not fall within the scope of the directives on the award of public contracts is nonetheless subject to the fundamental rules and the general principles of the FEU Treaty, in particular the principles of equal treatment and of non-discrimination on grounds of nationality and the consequent obligation of transparency, provided that those contracts are of certain cross-border interest (see, to that effect, judgments of 15 May 2008, SECAP and Santorso, C‑147/06 and C‑148/06, EU:C:2008:277, paragraphs 20 and 21; of 11 December 2014, Azienda sanitaria locale n. 5 Spezzino and Others, C‑113/13, EU:C:2014:2440, paragraphs 45 and 46; of 18 December 2014, Generali-Providencia Biztosító, C‑470/13, EU:C:2014:2469, paragraph 32; and of 16 April 2015, Enterprise Focused Solutions, C‑278/14, EU:C:2015:228, paragraph 16).
20


As regards the objective criteria which may indicate certain cross-border interest, the Court has previously held that such criteria may be, in particular, 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 or the technical characteristics of the contract and the specific characteristics of the products concerned. In that context, it is also possible to take account of the existence of complaints brought by operators situated in other Member States, provided that it is determined that those complaints are real and not fictitious (see, to that effect, judgments of 15 May 2008, SECAP and Santorso, C‑147/06 and C‑148/06, EU:C:2008:277, paragraph 31, and of 16 April 2015, Enterprise Focused Solutions, C‑278/14, EU:C:2015:228, paragraph 20 and the case-law cited).
22


It must be stressed, in that regard, that a conclusion that there is certain cross-border interest cannot be inferred hypothetically from certain factors which, considered in the abstract, could constitute evidence to that effect, but must be the positive outcome of a specific assessment of the circumstances of the contract at issue. More particularly, the referring court may not merely submit to the Court of Justice evidence showing that certain cross-border interest cannot be ruled out but must, on the contrary provide information capable of proving that it exists.