Official Journal of the European Union

C 408/5

(Case C-332/20) (*)

(Reference for a preliminary ruling - Public procurement - Concession contracts - Formation of a semi-public company - Award to that company of the management of an ‘integrated school service’ - Appointment of the private partner under a tender procedure - Directive 2014/23/EU - Article 38 - Directive 2014/24/EU - Article 58 - Applicability - ‘In-house’ criteria - Requirement for minimum participation of the private partner in the capital of the semi-public company - Indirect participation of the contracting authority in the capital of the private partner - Selection criteria)

(2022/C 408/05)

Language of the case: Italian

Referring court

Parties to the main proceedings

Applicants: Roma Multiservizi SpA, Rekeep SpA

Defendants: Roma Capitale, Autorità Garante della Concorrenza e del Mercato

Intervener: Consorzio Nazionale Servizi Soc. coop. (CNS)

Operative part of the judgment

1.Article 58 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, as amended by Commission Delegated Regulation (EU) 2017/2365 of 18 December 2017 must be interpreted as meaning that a contracting authority may exclude an economic operator from the procedure seeking, first, to form a semi-public company and, second, to award that company a service contract, where that exclusion is justified by the fact that, on the basis of the indirect participation of that contracting authority in that economic operator, the maximum participation of that contracting authority in that company, as determined in the call-for-tenders documents would be, in practice, exceeded if that contracting authority selected that economic operator as its partner, in so far as the excess participation serves to increase the financial uncertainty borne by that contracting authority;

2.Article 38 of Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts, as amended by Commission Delegated Regulation (EU) 2017/2366 of 18 December 2017 must be interpreted as meaning that a contracting authority may exclude an economic operator from the procedure seeking, first, to form a semi-public company and, second, to award that company a services concession, where that exclusion is justified by the fact that, on the basis of the indirect participation of that contracting authority in that economic operator, the maximum participation of that contracting authority in that company, as determined in the call-for-tenders documents would be, in practice, exceeded if that contracting authority selected that economic operator as its partner, in so far as that excess participation serves to increase the financial uncertainty borne by that contracting authority.

(*)

OJ C 329, 5.10.2020.