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Case C-162/16: Order of the Court (Sixth Chamber) of 10 November 2016 (request for a preliminary ruling from the Tribunale Amministrativo regionale per il Molise — Italy) — Spinosa Costruzioni Generali SpA, Melfi Srl v Comune di Monteroduni (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Public procurement — Directive 2004/18/EC — Directive 2014/24/EU — Participation in a tendering procedure — Tenderer having failed to refer in the tender to the business charges relating to safety and security at work — Judicial obligation to include such a reference — Exclusion from the contract without the possibility of rectifying that omission)
ECLI:EU:UNKNOWN:62016CB0162
62016CB0162
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27.2.2017
Official Journal of the European Union
C 63/10
(Case C-162/16) (<a id="ntc1-C_2017063EN.01001001-E0001" href="#ntr1-C_2017063EN.01001001-E0001"> (<span class="super note-tag">1</span>)</a>)
((Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court - Public procurement - Directive 2004/18/EC - Directive 2014/24/EU - Participation in a tendering procedure - Tenderer having failed to refer in the tender to the business charges relating to safety and security at work - Judicial obligation to include such a reference - Exclusion from the contract without the possibility of rectifying that omission))
(2017/C 063/15)
Language of the case: Italian
Referring court
Parties to the main proceedings
Applicant: Spinosa Costruzioni Generali SpA, Melfi Srl
Defendant: Comune di Monteroduni
Joined party: I.c.i Impresa Costruzioni Industriali Srl and Others, Alba Costruzioni ScpA, Ottoerre Group Srl
Operative part of the order
The principle of equality of treatment and the duty of transparency, as implemented by 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, must be interpreted as precluding the exclusion of a tenderer from a procedure for the award of a public works contract as a result of the tender’s failure to comply with a requirement to indicate clearly in the tender the business charges relating to safety and security at work — for which the penalty for non-compliance is exclusion from the procedure — a requirement which arises, not expressly from the procurement documents or from national legislation, but from an interpretation of that legislation and the filling of gaps in those documents by the national court adjudicating at last instance. The principles of equality of treatment and of proportionality must also be interpreted as not precluding such a tenderer from being afforded the opportunity of remedying the situation and satisfying that requirement within a time-limit set by the awarding authority.
(<a id="ntr1-C_2017063EN.01001001-E0001" href="#ntc1-C_2017063EN.01001001-E0001">(<span class="super">1</span>)</a> OJ C 200, 6.6.2016).