Consorzio Nazionale Interuniversitario per le Scienze del Mare (CoNISMa) v Regione Marche.
Date: 2009-12-23
25. It should be noted, first, that, according to the Court’s case-law, when it issues an opinion in the context of an extraordinary petition, such as that in the main proceedings, the Consiglio di Stato constitutes a court or tribunal for the purposes of Article 234 EC (Joined Cases C‑69/96 to C‑79/96 Garofalo and Others  [1997] ECR I‑5603, paragraph 27).
Question 1
30. Similarly, the first and second subparagraphs of Article 1(8) of the directive grant the status of ‘economic operator’ not only to any natural or legal person but also, expressly, to any ‘public entity’ or group consisting of such entities offering services on the market. The concept of ‘public entity’ may also, therefore, include bodies which are not primarily profit-making, are not structured as an undertaking and do not have a continuous presence on the market.
33. Reference should be made in that connection to the obligations upon and options available to contracting authorities under Article 55(3) of Directive 2004/18 in cases involving abnormally low tenders where the tenderer has obtained State aid. The Court has also recognised that, in certain specific circumstances, the contracting authorities are required, or at the very least permitted, to take into account the existence of subsidies, and in particular of aid incompatible with the Treaty, in order, where appropriate, to exclude tenderers in receipt of such aid (see, to that effect, Case C‑94/99 ARGE  [2000] ECR I‑11037, paragraph 29).
34. However, the fact that an economic operator may enjoy an unfair advantage because it receives public finance or State aid cannot justify the exclusion of entities, such as the applicant in the main proceedings, from a public tendering procedure a priori and without further consideration.
37. The Court has thus held that one of the primary objectives of Community rules on public procurement is to attain the widest possible opening-up to competition (see, inter alia, to that effect Bayerischer Rundfunk and Others , paragraph 39) and that it is the concern of Community law to ensure the widest possible participation by tenderers in a call for tenders (Case C‑538/07 Assitur  [2009] ECR I‑0000, paragraph 26). It should be added that the widest possible opening-up to competition is contemplated not only from the point of view of the Community interest in the free movement of goods and services but also the interest of the contracting authority concerned itself, which will thus have greater choice as to the most advantageous tender which is most suitable for the needs of the public authority in question (see, to that effect, with regard to abnormally low tenders, Joined Cases C‑147/06 and C‑148/06 SECAP and Santorso  [2008] ECR I‑3565, paragraph 29).
38. In that spirit of opening up public contracts to the widest possible competition, the Court has also held that Community rules governing that field are applicable when the entity with which a contracting authority plans to conclude a contract for pecuniary interest is itself also a contracting authority (see, to that effect, Stadt Halle and RPL Lochau , paragraph 47 and the case-law cited). According to Article 1(9) of Directive 2004/18, a contracting authority is an entity not having an industrial or commercial character which performs a task in the general interest. As a general rule, such a body does not pursue gainful activity on the market.
39. Similarly, the Court has held that Community rules preclude any national legislation which excludes candidates or tenderers entitled under the law of the Member State in which they are established to provide the services in question from the award of public service contracts with a value greater than the threshold for the application of the relevant directives, solely on the ground that those candidates or tenderers do not have the legal form corresponding to a specific category of legal persons (see, to that effect, Case C‑357/06 Frigerio Luigi and C. [2007] ECR I‑12311, paragraph 22).
40. Moreover, it should be noted that, according to the Court’s case-law, first, the mere fact that contracting authorities allow bodies which receive subsidies enabling them to submit tenders at prices appreciably lower than those of competing, unsubsidised, tenderers to take part in a procedure for the award of a public contract does not amount to a breach of the principle of equal treatment and, second, if the Community legislature had intended to require contracting authorities to exclude such tenderers, it would have stated this explicitly ( ARGE, paragraphs 25 and 26).
41. Finally, the Court’s case-law also provides that Community rules do not require that, in order to be classed as a contractor – that is, an economic operator – a person who enters into a contract with a contracting authority must be capable of direct performance using his own resources. The person in question need only be able to arrange for execution of the works in question and to furnish the necessary guarantees in that connection (see, to that effect, Case C‑399/98 Ordine degli Architetti and Others  [2001] ECR I‑5409, paragraph 90).
42. It therefore follows from both Community rules and the Court’s case-law that any person or entity which, in the light of the conditions laid down in a contract notice, believes that it is capable of carrying out the contract, either directly or by using subcontractors, is eligible to submit a tender or put itself forward as a candidate, regardless of whether it is governed by public law or private law, whether it is active as a matter of course on the market or only on an occasional basis and whether or not it is subsidised by public funds. As the Czech Government correctly observed, whether such an entity is actually able to satisfy the conditions laid down in the contract notice must be assessed at a later stage in the procedure, by applying the criteria set out in Articles 44 to 52 of Directive 2004/18.
43. It should be added that the effect of a restrictive interpretation of the concept of ‘economic operator’ would be that contracts concluded between contracting authorities and bodies which are primarily non-profit-making would not be regarded as ‘public contracts’, could be awarded by mutual agreement and would thus not be covered by Community rules on equal treatment and transparency, which would be inconsistent with the aim of those rules.
45. In the light of the foregoing, the answer to the first question must be that the provisions of Directive 2004/18, in particular those in Article 1(2)(a) and (8), first and second subparagraphs, which refer to the concept of ‘economic operator’, must be interpreted as permitting entities which are primarily non-profit-making and do not have the organisational structure of an undertaking or a regular presence on the market – such as universities and research institutes and consortia made up of universities and public authorities – to take part in a public tendering procedure for the award of a service contract.
Question 2
47. It should be noted, as is apparent from the wording of Article 4(1) of Directive 2004/18, that the Member States have a discretion as to whether or not to allow certain categories of economic operators to provide certain services.
48. Accordingly, as the Commission correctly observed, the Member States can regulate the activities of entities, such as universities and research institutes, which are non-profit-making and whose primary object is teaching and research. They can, inter alia, determine whether or not such entities are authorised to operate on the market, according to whether the activity in question is compatible with their objectives as an institution and those laid down in their statutes.
49. However, if and to the extent that such entities are entitled to offer certain services on the market, the national legislation transposing Directive 2004/18 into domestic law cannot prevent them from taking part in public procedures for the award of contracts for the provision of those services. Such a prohibition would be incompatible with the provisions of Directive 2004/18, as interpreted in connection with the examination of the first question referred.
50. In such a situation, it is for the national court to interpret domestic law, so far as possible, in the light of the wording and the purpose of Directive 2004/18 with a view to achieving the results sought by the latter, favouring the interpretation of the national rules which is the most consistent with that purpose in order thereby to achieve an outcome compatible with the provisions of the directive, setting aside, if necessary, any contrary provision of national law (see Case C‑414/07 Magoora  [2008] ECR I-0000, paragraph 44 ).