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Joined Cases C-89/19 to C-91/19: Order of the Court (Ninth Chamber) of 6 February 2020 (requests for a preliminary ruling from the Consiglio di Stato — Italy) — Rieco SpA v Comune di Lanciano, Ecolan SpA (C-89/19), Comune di Ortona, Ecolan SpA (C-90/19), Comune di San Vito Chietino, Ecolan SpA (C-91/19) (Reference for a preliminary ruling — Article 99 of the Court’s Rules of Procedure — Public procurement — Directive 2014/24/EU — Article 12(3) — National legislation favouring public procurement procedures to the detriment of in-house contracts — Freedom of the Member States as to the choice of how services are to be provided — Limits — National legislation excluding the possibility for a contracting authority to acquire, in a body owned by contracting authorities, a shareholding which cannot guarantee control of that body or a power of veto)
ECLI:EU:UNKNOWN:62019CB0089
62019CB0089
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Valentina R., lawyer
21.9.2020
Official Journal of the European Union
C 313/5
(Joined Cases C-89/19 to C-91/19) (1)
(Reference for a preliminary ruling - Article 99 of the Court’s Rules of Procedure - Public procurement - Directive 2014/24/EU - Article 12(3) - National legislation favouring public procurement procedures to the detriment of in-house contracts - Freedom of the Member States as to the choice of how services are to be provided - Limits - National legislation excluding the possibility for a contracting authority to acquire, in a body owned by contracting authorities, a shareholding which cannot guarantee control of that body or a power of veto)
(2020/C 313/06)
Language of the case: Italian
Referring court
Parties to the main proceedings
Applicant: Rieco SpA
Defendants: Comune di Lanciano, Ecolan SpA (C-89/19), Comune di Ortona, Ecolan SpA (C-90/19), Comune di San Vito Chietino, Ecolan SpA (C-91/19)
Interveners: Comune di Ortona (C-89/19), Comune di Treglio (C-89/19), Autorità nazionale anticorruzione (ANAC).
Operative part of the order
1.Article 12(3) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC must be interpreted as not precluding a provision of national law which makes the conclusion of an in-house transaction, also referred to as an ‘in-house contract’, conditional on it not being possible to use a public procurement procedure and, in any event, on the demonstration by the contracting authority of the benefits specifically arising, for society at large, from recourse to an in-house transaction.
2.Article 12(3) of Directive 2014/24 must be interpreted as not precluding a provision of national law which prevents a contracting authority from acquiring a shareholding in an entity whose shareholders are other contracting authorities where that shareholding cannot guarantee control or a power of veto and where that contracting authority intends to later acquire joint control and, consequently, the possibility of directly awarding contracts to that entity whose share capital is owned by a number of contracting authorities.
(1) OJ C 182, 27.5.2019.