26.11.2011

Official Journal of the European Union

C 347/20

(Case C-502/11)

2011/C 347/30

Language of the case: Italian

Referring court

Parties to the main proceedings

Appellant: Vivaio dei Molini Azienda Agricola Porro Savoldi ss

Respondent: Autorità per la Vigilanza sui Contratti Pubblici di lavori, servizi e forniture

Questions referred

1.Does Community law and, in particular, Article 6 of Directive 93/37/EEC (subsequently, Article 4 of Directive 2004/18/EC) preclude, in principle, a provision of national law (such as Article 10(1)(a) of Law No 109/1994 (subsequently, Article 34(1)(a) of Legislative Decree No 163/2006), which reserves the right to participate in public tendering procedures to undertakings which are engaged in a commercial activity, thereby excluding certain operators (such as civil-law partnerships) which do not ordinarily and predominantly engage in that type of activity; or is that prohibition reasonable and non-discriminatory in the light of the special rules governing civil-law partnerships and their special asset structure?

In the event that the first question is answered in the negative, the following question is also referred to the Court of Justice for a preliminary ruling:

2.Does Community law and, in particular, Article 6 of Directive 93/37/EEC (subsequently, Article 4 of Directive 2004/18/EC) and the principle of the freedom of entities admitted to participate in tendering procedures to adopt a particular legal form, allow the national legislature to place limits on the legal capacity of a contractor (or, according to the definition given in Directive 2004/18/EC, an economic operator), in the light of the special features of the rules of national law governing such contractors, prohibiting them from participating in public tendering procedures, or is such a restriction in breach of the principles of reasonableness and non-discrimination?

OJ L 199, p. 54.

OJ L 134, p. 114.