Official Journal of the European Union

C 46/12

(Case C-440/13) (<span class="super">1</span>)

((Reference for a preliminary ruling - Public services contracts - Directive 2004/18/EC - Directive 89/665/EEC - Personal situation of the candidate or tenderer - Provisional award of the contract - Criminal investigations initiated in respect of the legal representative of the successful tenderer - Decision by the contracting authority not to proceed with the definitive award of the contract and to withdraw the invitation to tender - Judicial review))

(2015/C 046/15)

Language of the case: Italian

Referring court

Parties to the main proceedings

Applicant: Croce Amica One Italia Srl

Defendant: Azienda Regionale Emergenza Urgenza (AREU)

Intervener: Consorzio Lombardia Sanità

Operative part of the judgment

1)Articles 41(1), 43 and 45 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as meaning that, where the conditions for the application of the grounds for exclusion set out in Article 45 are not fulfilled, that article does not preclude the adoption by a contracting authority of a decision not to award a contract for which a procurement procedure has been held and not to proceed with the definitive award of the contract to the sole tenderer remaining in contention to whom the contract had been provisionally awarded.

2)European Union public procurement law, in particular the third subparagraph of Article 1(1) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007, must be interpreted as meaning that the review referred to in that provision constitutes a review of the lawfulness of decisions adopted by contracting authorities, the purpose of which is to ensure that the relevant rules of EU law or national provisions transposing those rules are complied with. It is not possible for such review to be confined to a simple examination of whether the decisions adopted by contracting authorities are arbitrary. On the other hand, that does not mean that it is not open to the national legislature to grant the competent national courts and tribunals the power to review whether a measure was expedient.

(<span class="super">1</span>) OJ C 344, 23.11.2013.