Vitali SpA v Autostrade per l'Italia SpA.
Date: 2019-09-26
26


It follows that, like Directive 2004/18 that it repealed, Directive 2014/24 provides for the possibility for tenderers to rely on subcontractors for the performance of a contract, provided that the conditions laid down in that directive are met (see, to that effect, in respect of Directive 2004/18, judgment of 14 July 2016, Wrocław — Miasto na prawach powiatu, C‑406/14, EU:C:2016:562, paragraphs 31 to 33).
27


According to settled case-law, and as recital 78 of Directive 2014/24 makes clear, it is in the interests of the European Union to ensure, in the field of public procurement, that the opening up of competition in tendering procedures is enhanced. The use of subcontractors, which is likely to facilitate access of small and medium-sized undertakings to public contracts, contributes to the pursuit of that objective (see, to that effect, judgment of 5 April 2017, Borta, C‑298/15, EU:C:2017:266, paragraph 48 and the case-law cited).
36


In addition, according to settled case-law, Member States must be recognised as having a certain discretion for the purpose of adopting measures intended to ensure observance of the principle of transparency, which is binding on contracting authorities in any procedure for the award of a public contract. Each Member State is best placed to identify, in the light of historical, legal, economic or social considerations specific to it, situations propitious to conduct liable to bring about breaches of that principle (see, to that effect, judgment of 22 October 2015, Impresa Edilux and SICEF, C‑425/14, EU:C:2015:721, paragraph 26 and the case-law cited).
37


More specifically, the Court has already held that combating the phenomenon of infiltration of the public procurement sector by organised crime constitutes a legitimate objective capable of justifying a restriction on the fundamental rules and general principles of the TFEU which apply in public procurement procedures (see, to that effect, judgment of 22 October 2015, Impresa Edilux and SICEF, C‑425/14, EU:C:2015:721, paragraphs 27 and 28).
39


In that regard, it should be borne in mind that the contracting authorities must, throughout the procedure, observe the principles of procurement set out in Article 18 of Directive 2014/24, which include, inter alia, the principles of equal treatment, transparency and proportionality (judgment of 20 September 2018, Montte, C‑546/16, EU:C:2018:752, paragraph 38).
40


In particular, as pointed out in paragraph 30 of the present judgment, the national legislation at issue in the main proceedings prohibits, in general and abstract terms, use of subcontracting which exceeds a fixed percentage of the public contract concerned, so that that prohibition applies whatever the economic sector concerned by the contract at issue, the nature of the works or the identity of the subcontractors. Furthermore, such a general prohibition does not allow for any assessment on a case-by-case basis by the contracting entity (see, by analogy, judgment of 5 April 2017, Borta, C‑298/15, EU:C:2017:266, paragraphs 54 and 55).
41


It follows that, in the context of national legislation such as that at issue in the main proceedings, in respect of all contracts, a significant part of the works, supplies or services concerned must be performed by the tenderer itself, failing which it will be automatically excluded from the procurement procedure, including where the contracting entity would be able to verify the identity of the subcontractors concerned and would take the view, after verification, that such a prohibition is not necessary in order to combat organised crime in the context of the contract in question.
42


As the Commission points out, the objective pursued by the Italian legislature could be achieved by less restrictive measures, as in the case of those provided for in Article 71 of Directive 2014/24 and referred to in paragraph 29 of the present judgment. In fact, as the referring court states, Italian law already provides for numerous measures explicitly intended to prohibit undertakings suspected of belonging to the mafia, or in any event of being linked to the interests of the main criminal organisations operating in the country, from having access to public tendering procedures.
43


Accordingly, a restriction on the use of subcontracting such as that at issue in the main proceedings cannot be regarded as compatible with Directive 2014/24.