Assitur Srl v Camera di Commercio, Industria, Artigianato e Agricoltura di Milano.
Date: 2009-05-19
16. None the less, the referring court asks whether such an approach is compatible with the Community legal order and, in particular, with Article 29 of Directive 92/50, as interpreted by the Court of Justice in Joined Cases C‑226/04 and C‑228/04 La Cascina and Others  [2006] ECR I‑1347, paragraphs 21 to 23. That provision, which constitutes an expression of the principle of ‘favor participationis’ – whereby as many undertakings as possible should take part in the tendering procedure – comprises, according to that judgment, an exhaustive list of the grounds for exclusion from participation in a tendering procedure for the award of a service contract. Those grounds do not include the situation of undertakings linked by a relationship of control or decisive influence.
19. For the purpose of answering that question, it must be noted that, according to the case-law of the Court of Justice, the seven grounds for excluding a contractor from participating in a public contract laid down in the first paragraph of Article 29 of Directive 92/50 relate to the professional honesty, solvency and reliability of the tenderer, in other words, his professional qualities (see, to that effect, La Cascina and Others , paragraph 21).
20. The Court of Justice emphasised in connection with the first paragraph of Article 24 of Directive 93/37, which reproduces the same grounds for exclusion as those mentioned in the first paragraph of Article 29 of Directive 92/50, that the intention of the Community legislature was to adopt in that provision only grounds for exclusion related to the professional qualities of the tenderer. In so far as it reproduces those grounds for exclusion, the Court considered that list to be exhaustive (see, to that effect, Case C-213/07 Michaniki [2008] ECR I-0000, paragraphs 42 and 43, as well as the case-law cited).
21. The Court added that that this exhaustive list does not, however, preclude the option for Member States to maintain or adopt, in addition to the grounds for exclusion, substantive rules designed, in particular, to ensure, as regards public contracts, observance of the principle of equal treatment of all tenderers and of the principle of transparency which constitute the basis of the directives on procedures for the award of public contracts, provided always that the principle of proportionality is observed (see, to that effect, Michaniki , paragraphs 44 to 48 and the case-law cited).
22. It is clear that a national legislative measure such as that at issue in the main proceedings is intended to prevent any potential collusion between participants in the same procedure for the award of a public contract and to safeguard the equal treatment of candidates and the transparency of the procedure.
23. It must therefore be considered that the first paragraph of Article 29 of Directive 92/50 does not preclude a Member State from laying down, in addition to the grounds for exclusion contained in that provision, other grounds for exclusion intended to guarantee respect for the principles of equality of treatment and transparency, provided that such measures do not go beyond what is necessary to achieve that objective.
24. It follows that the compliance with Community law of the national legislation at issue in the main proceedings must be examined again in the light of the principle of proportionality.
25. It should be recalled, in this connection, that the Community rules on public procurement were adopted in pursuance of the establishment of the internal market, in which freedom of movement is ensured and restrictions on competition are eliminated (see, to that effect, Case C‑412/04 Commission  v Italy [2008] ECR I‑619, paragraph 2).
26. In this context of a single internal market and effective competition it is the concern of Community law to ensure the widest possible participation by tenderers in a call for tenders.
27. According to the order for reference, the provision at issue in the main proceedings, which is drafted in clear and binding terms, entails for the contracting authorities an absolute obligation to exclude from the procedure for awarding the contract those undertakings which submit separate and competing tenders, if those undertakings are linked by a relationship of control such as that contemplated by the national legislation at issue in the main proceedings.
28. However, it would run counter to the effective application of Community law to exclude systematically undertakings affiliated to one another from participating in the same procedure for the award of a public contract. Such a solution would considerably reduce competition at Community level.
29. Thus, clearly, in so far as it extends the prohibition on participation in the same procedure for the award of a contract to situations in which the relationship of control between the undertakings concerned has no effect on their conduct in the course of such procedures, the national legislation at issue in the main proceedings goes beyond what is necessary to achieve the objective of ensuring the application of the principles of equal treatment and transparency.
30. Such legislation, which is based on an irrebuttable presumption that tenders submitted for the same contract by affiliated undertakings will necessarily have been influenced by one another, breaches the principle of proportionality in that it does not allow those undertakings an opportunity to demonstrate that, in their case, there is no real risk of occurrence of practices capable of jeopardising transparency and distorting competition between tenderers (see, to that effect, Joined Cases C‑21/03 and C-34/03 Fabricom  [2005] ECR I‑1559, paragraphs 33 and 35, and Michaniki , paragraph 62).
31. It should be pointed out in this connection that groups of undertakings can have different forms and objectives, which do not necessarily preclude controlled undertakings from enjoying a certain autonomy in the conduct of their commercial policy and their economic activities, inter alia, in the area of their participation in the award of public contracts. Moreover, as the Commission pointed out in its written observations, relationships between undertakings in the same group may be governed by specific provisions, for example, of a contractual nature, such as to guarantee both independence and confidentiality in the drawing-up of tenders to be submitted simultaneously by the undertakings in question in the same tendering procedure.
32. Against that background, the question whether the relationship of control at issue influenced the respective content of the tenders submitted by the undertakings concerned in the same public procurement procedure requires an examination and assessment of the facts which it is for the contracting authorities to carry out. A finding of such influence, in any form, is sufficient for those undertakings to be excluded from the procedure in question. However, a mere finding of a relationship of control between the undertakings concerned, by reason of ownership or the number of voting rights exercisable at ordinary shareholders’ meetings is not sufficient for the contracting authority to automatically exclude those undertakings from the procedure for the award of the contract, without ascertaining whether such a relationship had a specific effect on their conduct in the course of that procedure.
33. Having regard to all the foregoing considerations, the answer to the question referred is that:
– the first paragraph of Article 29 of Directive 92/50 must be interpreted as not precluding a Member State from laying down, in addition to the grounds for exclusion contained in that provision, other grounds for exclusion intended to guarantee respect for the principles of equality of treatment and transparency, provided that such measures do not go beyond what is necessary to achieve that objective, and
– Community law precludes a national provision which, while pursuing legitimate objectives of equality of treatment of tenderers and transparency in procedures for the award of public contracts, lays down an absolute prohibition on simultaneous and competing participation in the same tendering procedure by undertakings linked by a relationship of control or affiliated to one another, without allowing them an opportunity to demonstrate that that relationship did not influence their conduct in the course of that tendering procedure.
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