Impresa Edilux srl and Società Italiana Costruzioni e Forniture srl (SICEF) v Assessorato Beni Culturali e Identità Siciliana – Servizio Soprintendenza Provincia di Trapani and Others.
Date: 2015-10-22
19. It must be borne in mind that the strict special procedures prescribed by the EU directives on the coordination of procedures for the award of public contracts apply only to contracts whose value exceeds a threshold expressly laid down in each of those directives. Accordingly, the rules in those directives do not apply to contracts with a value below the threshold set by those directives (see judgment in Enterprise Focused Solutions , C‑278/14, EU:C:2015:228, paragraph 15 and the case-law cited). Therefore, Article 45 of Directive 2004/18 does not apply in the context of the dispute in the main proceedings.
20. Nevertheless, it is clear from the settled case-law of the Court that the fact that the referring court’s question refers only to certain provisions of EU law does not mean that the Court may not provide the national court with all the guidance on points of interpretation that may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to those points in its question. It is, in this regard, for the Court to extract from all the information provided by the referring court, in particular from the grounds of the decision to make the reference, the points of EU law which require interpretation in view of the subject-matter of the dispute (see, inter alia, judgment in Ville d’Ottignies-Louvain-la-Neuve and Others , C‑225/13, EU:C:2014:245, paragraph 30 and the case-law cited).
21. In accordance with equally well-established case-law, the award of contracts which, in view of their value, do not fall within the scope of the EU directives on the coordination of procedures for the award of public contracts is none the less 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 have certain cross-border interest in the light of certain objective criteria (see, to that effect, judgment in Enterprise Focused Solutions , C‑278/14, EU:C:2015:228, paragraph 16 and case-law cited).
26. The Court has already held that, as regards the principles of equal treatment and transparency, the Member States must be recognised to have a certain discretion for the purpose of adopting measures intended to ensure observance of those principles, which are 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 those principles (see, to that effect, judgment in Serrantoni and Consorzio stabile edili , C‑376/08, EU:C:2009:808, paragraphs 31 and 32 and the case-law cited).
27. According to the referring court, a legality protocol such as that at issue in the case in the main proceedings is intended to prevent and combat the phenomenon of organised crime, firmly entrenched in some regions of southern Italy, from infiltrating, in particular, the public procurement sector. It also serves to protect the principles of competition and transparency underlying Italian and EU public procurement legislation.
28. It is clear that, by preventing criminal activity and distortions of competition in the public contracts sector, a measure such as the obligation to declare acceptance of that type of legality protocol appears to be such as to strengthen equal treatment and transparency in procurement procedures. In addition, inasmuch as that obligation is incumbent upon every candidate or tenderer without distinction, it does not conflict with the principle of non-discrimination.
29. However, in accordance with the principle of proportionality, which constitutes a general principle of EU law, such a measure must not go beyond what is necessary to achieve the intended objective (see, to that effect, judgment in Serrantoni and Consorzio stabile edili , C‑376/08, EU:C:2009:808, paragraph 33 and the case-law cited).
36. As the European Commission has observed in its written observations, it follows from the case-law of the Court that the automatic exclusion of candidates or tenderers who are in such a relationship with other candidates or tenderers goes beyond what is necessary to prevent collusive behaviour and, therefore, to ensure the application of the principle of equal treatment and observance of the obligation of transparency. Such an automatic exclusion constitutes an irrebutable presumption of mutual interference in the respective tenders, for the same contract, of undertakings linked by a relationship of control or of association. Accordingly, it precludes the possibility for those candidates or tenderers of showing that their tenders are independent and is therefore contrary to the EU interest in ensuring the widest possible participation by tenderers in a call for tenders (see, to that effect, judgments in Assitur , C‑538/07, EU:C:2009:317, paragraphs 28 to 30, and Serrantoni and Consorzio stabile edili , C‑376/08, EU:C:2009:808, paragraphs 39 and 40).
38. It follows that an obligation for a participant in a tendering procedure to declare, on the one hand, that it is not in a relationship of control or of association with other competitors and, on the other, that it has not concluded any agreement with other participants in the tendering procedure, with the consequence that, failing such a declaration, that participant is automatically excluded from that procedure, infringes the principle of proportionality.