23.1.2017

Official Journal of the European Union

C 22/7

(Case C-536/16)

(2017/C 022/10)

Language of the case: Italian

Referring court

Parties to the main proceedings

Applicant: DUEMMESGR SpA

Defendant: Associazione Cassa Nazionale di Previdenza e Assistenza in favore dei Ragionieri e Periti Commerciali (CNPR)

Questions referred

1.Although the Member States have the ability to require payment for soccorso istruttorio, a procedure whereby the tenderer is given an opportunity to remedy shortcomings in its tendering documentation, which has the effect of remedying any irregularity, is Article 38(2a) of Legislative Decree No 163 of 2006, in the version in force at the time of the tendering procedure in question …, which makes provision for the payment of a ‘pecuniary penalty’, in so far as that penalty must be fixed by the contracting authority (‘not less than 0.1 % and not more than 1 % of the value of the contract and in any event not more than EUR 50 000, the payment of which shall be guaranteed by the provisional security’), contrary to EU law in view of the excessively high amount and the predetermined nature of that penalty, which cannot be adjusted according to the specific situation to be regulated or the seriousness of the irregularity to be remedied?

2.Is Article 38(2a) of Legislative Decree No 163 of 2006 (in the version in force at the time indicated above) contrary to EU law, in that that requirement to pay for soccorso istruttorio may be regarded as contrary to the principle of opening up the market to competition as widely as possible, an aim which the soccorso istruttorio mechanism is intended to achieve, the facility which the contracting authority is required to offer in that regard therefore being a logical consequence of the duties imposed on that authority by law in the light of the public interest in achieving that aim?