Serrantoni Srl and Consorzio stabile edili Scrl v Comune di Milano.
Date: 2009-12-23
22. It is clear from the Court’s settled case-law that, in the context of the award of a contract with a value below that threshold, the fundamental rules of the Treaty and in particular the principle of equal treatment must be complied with. The distinguishing feature in relation to contracts with a value above the threshold prescribed by the provisions of Directive 2004/18 is that only the latter are subject to the strict special procedures laid down in those provisions (see, to that effect, Joined Cases C‑147/06 and C-148/06 SECAP and Santorso  [2008] ECR I‑3565, paragraphs 19 and 20).
23. That interpretation is confirmed by recital 2 in the preamble to Directive 2004/18, which states that the award of all contracts concluded in the Member States on behalf of bodies with the status of a contracting authority must comply with the basic rules of the Treaty, and in particular with those concerning freedom of movement of goods and services, the right of establishment and the fundamental principles deriving therefrom, such as the principles of equal treatment, proportionality and transparency.
24. However, according to the case-law of the Court, the application of the fundamental rules and general principles of the Treaty to procedures for the award of contracts below the threshold for the application of Community provisions is based on the premiss that the contracts in question are of certain cross-border interest ( SECAP and Santorso , paragraph 21 and case-law cited).
25. In that connection, the Court has already pointed out that it is for the referring court to carry out a detailed assessment of all the relevant facts concerning the contract in question in order to determine whether there is certain cross-border interest ( SECAP and Santorso , paragraph 34). In the present case, the answers to the questions referred take as their premiss that it is none the less for the referring court to ascertain whether the contract in question involves certain cross-border interest.
The first question
31. As regards the principles of equal treatment and transparency, the Member States must be recognised as having a certain amount of discretion for the purpose of adopting measures intended to ensure compliance with those principles, which are binding on contracting authorities in any procedure for the award of a public contract (see, to that effect, Case C‑213/07 Michaniki  [2008] ECR I-0000, paragraph 44).
32. 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 those principles (see Michaniki , paragraph 56).
33. However, in accordance with the principle of proportionality, which constitutes a general principle of Community law (see, inter alia, Case C-210/03 Swedish Match  [2004] ECR I-11893, paragraph 47), the measures adopted by the Member States must not go beyond what is necessary to achieve that objective (see, to that effect, Michaniki , paragraphs 48 and 61, and Case C-538/07 Assitur  [2009] ECR I-0000, paragraphs 21 and 23).
38. It should be added that, even if the treatment in question applied without distinction to all forms of consortium, or the national court found that there were objective elements which distinguished the situation of permanent consortia from that of other forms of consortium, a rule requiring automatic exclusion, such as the rule at issue in the main proceedings, would not in any event be compatible with the principle of proportionality.
39. A rule of that kind involves an irrebutable presumption of mutual interference in cases in which a consortium and one or more of its member companies have submitted competing tenders in the same procedure for the award of a public contract, even where the consortium in question has not participated in the procedure on behalf and in the interests of those companies, without either the consortium or the companies concerned being afforded the possibility of showing that their tenders were drawn up completely independently and that there is therefore no risk of influencing competition between tenderers (see, to that effect, Michaniki , paragraph 67, and Assitur , paragraph 30, in relation to the public contracts falling within the scope of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54) and 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).
40. A systematic rule of exclusion, which also entails an absolute obligation on the contracting authorities to exclude the entities concerned, even in cases in which the relationship between those entities has no effect on their conduct in the context of the procedures in which they have participated, is contrary to the Community interest in ensuring the widest possible participation by tenderers in a call for tenders, and goes beyond what is necessary to achieve the objective of ensuring the application of the principles of equal treatment and transparency (see, to that effect, Assitur , paragraphs 26 to 29, with regard to public contracts falling within the scope of Directive 92/50).
41. Second, it should be noted that, in accordance with the settled case-law of the Court, Articles 43 EC and 49 EC 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 Community nationals of the freedom of establishment and the freedom to provide services guaranteed by those provisions of the Treaty (see, to that effect, Case C‑299/02 Commission  v Netherlands  [2004] ECR I‑9761, paragraph 15, and Case C-433/04 Commission  v Belgium  [2006] ECR I‑10653, paragraph 28).
43. A national measure of that kind which is likely to have a dissuasive effect on economic operators established in other Member States constitutes a restriction within the meaning of Articles 43 EC and 49 EC (see, to that effect, Commission  v Belgium , paragraph 29), all the more so as that dissuasive effect is heightened by the risk of criminal sanctions which are laid down in the national legislation at issue in the main proceedings.
44. However, a restriction such as that at issue in the main proceedings may possibly be justified in so far as it pursues a legitimate objective in the public interest, and to the extent that it is suitable for securing the attainment of the objective and does not go beyond what is necessary in order to attain it.