24.8.2020

EN

Official Journal of the European Union

C 279/27

(Case C-210/20)

(2020/C 279/38)

Language of the case: Italian

Referring court

Parties to the main proceedings

Applicants: Rad Service Srl Unipersonale, Cosmo Ambiente Srl, Cosmo Scavi Srl

Defendants: Del Debbio SpA, Gruppo Sei Srl, Ciclat Val di Cecina Soc. Coop., Daf Costruzioni Stradali Srl, as representative of the ad hoc tendering consortium formed with GARC SpA and Edil Moter Srl

Question referred

Does Article 63 of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014, (1) concerning reliance on the capacities of other entities, in conjunction with the principles of freedom of establishment and freedom to provide services enshrined in Articles 49 and 56 of the Treaty on the Functioning of the European Union (TFEU), preclude the application of the provisions of Italian law relating to reliance on the capacities of other entities and exclusion from award procedures set out in the fourth sentence of Article 89(1) of the Public Procurement Code referred to in decreto legislativo 18 aprile 2016, n. 50 (Legislative Decree No 50 of 18 April 2016), under which, if untruthful declarations are made by an ancillary undertaking regarding the existence of convictions in criminal proceedings that have become final, which may demonstrate serious professional misconduct, the contracting authority must in all cases exclude the economic operator taking part in the tender procedure, without requiring or permitting that operator to indicate another suitable ancillary undertaking to replace the former undertaking, which is, conversely, permitted in other cases where the entities on whose capacities the economic operator intends to rely fail to meet a relevant selection criterion or are subject to mandatory grounds for exclusion?

(1) 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 (OJ 2014 L 94, p. 65).