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Case C-538/07: Judgment of the Court (Fourth Chamber) of 19 May 2009 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia — Italy) — Assitur Srl v Camera di Commercio, Industria, Artigianato e Agricoltura di Milano (Directive 92/50/EEC — First paragraph of Article 29 — Public service contracts — National legislation not allowing companies linked by a relationship of control or significant influence to participate, as competing tenderers, in the same procedure for the award of a public contract)
ECLI:EU:UNKNOWN:62007CA0538
62007CA0538
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4.7.2009
Official Journal of the European Union
C 153/9
(Case C-538/07) (1)
(Directive 92/50/EEC - First paragraph of Article 29 - Public service contracts - National legislation not allowing companies linked by a relationship of control or significant influence to participate, as competing tenderers, in the same procedure for the award of a public contract)
2009/C 153/18
Language of the case: Italian
Referring court
Parties to the main proceedings
Applicant: Assitur Srl
Defendant: Camera di Commercio, Industria, Artigianato e Agricoltura di Milano
In the presence of: SDA Express Courier SpA, Poste Italiane SpA
Re:
Reference for a preliminary ruling — Tribunale Amministrativo Regionale per la Lombardia — Interpretation of Article 29 of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1) — National legislation precluding undertakings which are linked or controlled from participating individually in public procurement procedures for the supply of services
Operative part of the judgment
1.The first paragraph of Article 29 of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts must be interpreted as not precluding a Member State from laying down, in addition to the grounds for exclusion contained in that provision, other grounds for exclusion intended to guarantee respect for the principles of equality of treatment and transparency, provided that such measures do not go beyond what is necessary to achieve that objective.
2.Community law precludes a national provision which, while pursuing legitimate objectives of equality of treatment of tenderers and transparency in procedures for the award of public contracts, lays down an absolute prohibition on simultaneous and competing participation in the same tendering procedure by undertakings linked by a relationship of control, without allowing them an opportunity to demonstrate that that relationship did not influence their conduct in the course of that tendering procedure.
(1) OJ C 37, 9.2.2008.