Official Journal of the European Union

C 142/8

(Joined Cases C-523/16 and C-536/16) (<span class="super note-tag">1</span>)

((Reference for a preliminary ruling - Public procurement - Directive 2004/18/EC - Article 51 - Rectification of procedural shortfalls in tenders - Directive 2004/17/EC - Clarification of tenders - National legislation making the rectification by tenderers of the documentation submitted subject to the payment of a financial penalty - Principles relating to the award of public works contracts - Principle of equal treatment - Principle of proportionality))

(2018/C 142/11)

Language of the case: Italian

Referring court

Parties to the main proceedings

Applicants: MA.T.I. SUD SpA (C-523/16), Duemme SGR SpA (C-536/16)

Intervener: China Taiping Insurance Co. Ltd (C-523/16)

Defendants: Centostazioni SpA (C-523/16), Associazione Cassa Nazionale di Previdenza e Assistenza in favore dei Ragionieri e Periti Commerciali (CNPR) (C-536/16)

Operative part of the judgment

European Union Law, in particular Article 51 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, the principles relating to the award of public contracts, including the principles of equal treatment and transparency referred to in Article 10 of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors and Article 2 of Directive 2004/18, and the principle of proportionality must be interpreted as not precluding, in principle, national legislation establishing a mechanism of assistance in compiling the documentation, under which the contracting authority may in a procedure for the award of a public contract, invite any tenderer whose tender is vitiated by serious irregularities within the meaning of that regulation to rectify its tender, subject to the payment of a financial penalty, provided that the amount of that penalty is consistent with the principle of proportionality, which it is for the referring court to determine.

However, those provisions and principles must be interpreted as precluding national legislation establishing a mechanism of assistance in compiling the documentation under which the contracting authority may require a tenderer, on payment of a financial penalty, to remedy the lack of a document which, according to the express provisions in the contract documentation, must result in the exclusion of that tenderer, or to eliminate the irregularities affecting its tender such that any corrections or changes would amount to a new tender.

(<span class="super">1</span>) OJ C 22, 23.1.2017.

* * *