6.4.2013

Official Journal of the European Union

C 101/11

(Case C-42/13)

2013/C 101/23

Language of the case: Italian

Referring court

Parties to the main proceedings

Applicant: Cartiera dell’Adda SpA, Cartiera di Cologno SpA

Defendant: CEM Ambiente SpA

Questions referred

1.Is it contrary to Community law, when an undertaking participating in a tendering procedure has failed to declare, in its request for participation, that its technical director has not been the object of any of the prosecutions and convictions referred to in Article 38(1)(b) and (c) of Legislative Decree No 163/2006, for an interpretation of that article to be given, in accordance with which the awarding entity must order the exclusion of that undertaking even when that undertaking has suitably proved that the use of the term ‘technical director’ in its request was due to a mere clerical error?

2.Is it contrary to Community law, when an undertaking participating in a tendering procedure has provided relevant, suitable evidence that the persons required to make the statements referred to in Article 38(1)(b) and (c) have not been the object of any of the prosecutions and convictions referred to therein, for an interpretation of that article to be given, in accordance with which the awarding entity must order the exclusion of that undertaking as a consequence of the failure to comply with the lex specialis under which the tendering procedure was launched?