26.5.2012

Official Journal of the European Union

C 151/15

(Case C-100/12)

2012/C 151/25

Language of the case: Italian

Referring court

Parties to the main proceedings

Applicant: Fastweb SpA

Defendant: Azienda Sanitaria Locale di Alessandria

Other parties: Telecom Italia SpA, Path-net SpA

Question referred

Do the principles of equality of the parties, of non-discrimination and of protection of competition in public tendering procedures referred to in Directive 89/665/EEC, as amended by Directive 2007/66/EC, preclude the most recent case-law (the ‘diritto vivente’) as laid down in Decision No 4 of [7 April] 2011 of the Plenary Assembly of the Consiglio di Stato, according to which the cross action, which seeks to challenge recognition of the legitimacy of the applicant in the main action by contesting its admission to the tendering procedure, must of necessity be heard before the main action and carry compelling implications for examination of the main action, even in cases where the applicant in the main action has an interest in the recommencement of the entire selection procedure (interesse strumentale) and irrespective of the number of competitors which took part in the procedure, with specific reference to cases where only two participants remained in play in that procedure (namely, the applicant in the main action and the applicant in the cross-action, the latter being also the successful tenderer), each seeking to have the other excluded on the grounds that its tender failed to meet the minimum requirements for the tender to be considered suitable?

Language of the case: Italian

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(1) OJ 1989 L 395, p. 33.

(2) OJ 2007 L 335, p. 31.