23.2.2008

Official Journal of the European Union

C 51/19

(Case C-357/06)

(Directive 92/50/EEC - Public service contracts - National legislation restricting the award of local public services of economic interest to companies with share capital - Compatibility)

(2008/C 51/31)

Language of the case: Italian

Referring court

Tribunale amministrativo regionale per la Lombardia (Italy)

Parties to the main proceedings

Applicant: Frigerio Luigi & C. Snc

Defendant: Comune di Triuggio

Intervening party: Azienda Servizi Multisettoriali Lombarda — A.S.M.L. SpA

Re:

Preliminary ruling — Tribunale amministrativo regionale per la Lombardia — Interpretation of Arts 39, 43, 48 and 81 EC, Article 26(2) 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), Article 4(1) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114), Article 9(1) of Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39) and Article 7(1) of Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste (OJ 2006 L 114, p. 9) — Procedure for the award of public service contracts — Environmental hygiene service — Domestic legislation authorising joint stock companies alone to hold contracts for waste management and disposal services

Operative part of the judgment

Article 26(1) and (2) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, as amended by Commission Directive 2001/78/EC of 13 September 2001, precludes national provisions, such as those at issue in the main proceedings, which exclude candidates or tenderers entitled under the law of the Member State concerned to provide the service in question, including those composed of groups of service providers, from submitting a tender, in a procedure for the award of a public service contract with a value greater than the threshold for application of Directive 92/50, solely on the ground that those candidates or tenderers do not have a legal form corresponding to a specific category of legal persons, namely that of a company with share capital. It is for the national court, to the full extent of its discretion under national law, to interpret and apply national law in accordance with the requirements of Community law and, in so far as such an interpretation is not possible, to disapply any provision of national law which is contrary to those requirements.

(1) OJ C 281, 18.11.2006.