Iveco Orecchia SpA v APAM Esercizio SpA and Brescia Trasporti SpA.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:835
• Date: 27 October 2022
• Docket Number: C-68/21,C-84/21
• Celex Number: 62021CJ0068
• Procedure Type: Reference for a preliminary ruling
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Sixth Chamber)

27 October 2022 (*)

(References for a preliminary ruling – Approximation of laws – Motor vehicles – Directive 2007/46/EC – Technical specifications – Offer to supply spare parts equivalent to the originals of a specific mark – Absence of proof of type-approval – Declaration of equivalence to the original by the tenderer – Concept of ‘manufacturer’ – Means of proof – Public procurement – Directive 2014/25/EU)

In Joined Cases C‑68/21 and C‑84/21,

TWO REQUESTS for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Council of State, Italy), made by decisions of 14 December 2020, received at the Court on 3 and 11 February 2021, in the proceedings

Iveco Orecchia SpA

v

APAM Esercizio SpA (C‑68/21),

Brescia Trasporti SpA (C‑84/21),

intervening parties:

Veneta Servizi International Srl unipersonale,

VAR Srl,

Di Pinto & Dalessandro SpA,

Bellizzi Srl,

THE COURT (Sixth Chamber),

composed of P.G. Xuereb (Rapporteur), President of the Chamber, A. Kumin and I. Ziemele, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: C. Di Bella, Administrator,

having regard to the written procedure and further to the hearing on 10 March 2022,

after considering the observations submitted on behalf of:

– Iveco Orecchia SpA, by F. Brunetti and A. Vitale, avvocati,

– APAM Esercizio SpA, by E. Zani, avvocato,

– Brescia Trasporti SpA, by A. Salvadori, avvocato,

– Veneta Servizi International Srl unipersonale, by S. Lago and by A. Calegari, N. Creuso, N. de Zan and A. Manzi, avvocati,

– Var Srl, by M. Goria and S.E Viscio, avvocati,

– Di Pinto & Dalessandro SpA and Bellizzi Srl, by M. Lancieri, avvocato,

– the Italian Government, by G. Palmieri, acting as Agent, and by C. Pluchino, avvocatessa dello Stato,

– the European Commission, by G. Gattinara and M. Huttunen and by K. Talabér-Ritz, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 5 May 2022,

gives the following

Judgment

1 These requests for a preliminary ruling concern the interpretation of Article 3(27) and Articles 10, 19 and 28 of Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (Framework Directive) (OJ 2007 L 263, p. 1), and of Articles 60 and 62 of Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ 2014 L 94, p. 243).

2 The references have been made in two sets of proceedings between, on the one hand, Iveco Orecchia SpA and APAM Esercizio SpA (C‑68/21) and, on the other hand, between Iveco Orecchia SpA and Brescia Trasporti SpA (C‑84/21), concerning two public contracts awarded by APAM Esercizio SpA and Brescia Trasporti SpA, respectively.

Legal context

European Union law

Directive 2007/46

3 Recitals 2, 3 and 14 of Directive 2007/46 state:

‘(2) For the purposes of the establishment and operation of the internal market of the Community, it is appropriate to replace the Member States’ approval systems with a Community approval procedure based on the principle of total harmonisation.

(3) The technical requirements applicable to systems, components, separate technical units and vehicles should be harmonised and specified in regulatory acts. Those regulatory acts should primarily seek to ensure a high level of road safety, health protection, environmental protection, energy efficiency and protection against unauthorised use.

…

(14) The main objective of the legislation on the approval of vehicles is to ensure that new vehicles, components and separate technical units put on the market provide a high level of safety and environmental protection. …’

4 Article 1 of that directive, entitled ‘Subject matter’, provides:

‘This Directive establishes a harmonised framework containing the administrative provisions and general technical requirements for approval of all new vehicles within its scope and of the systems, components and separate technical units intended for those vehicles, with a view to facilitating their registration, sale and entry into service within the Community.

This Directive also establishes the provisions for the sale and entry into service of parts and equipment intended for vehicles approved in accordance with this Directive.

Specific technical requirements concerning the construction and functioning of vehicles shall be laid down in application of this Directive in regulatory acts, the exhaustive list of which is set out in Annex IV.’

5 Article 2 of that directive, entitled ‘Scope’, states in paragraph 1 thereof:

‘This Directive applies to the type-approval of vehicles designed and constructed in one or more stages for use on the road, and of systems, components and separate technical units designed and constructed for such vehicles.

…’

6 Article 3 of Directive 2007/46, headed ‘Definitions’, states:

‘For the purposes of this Directive and of the regulatory acts listed in Annex IV, save as otherwise provided therein:

1. “regulatory act” means a separate directive or regulation or a UNECE Regulation annexed to the Revised 1958 Agreement;

2. “separate directive or regulation” means a directive or regulation listed in Part I of Annex IV. This term includes also their implementing acts;

3. “type-approval” means the procedure whereby a Member State certifies that a type of vehicle, system, component or separate technical unit satisfies the relevant administrative provisions and technical requirements;

…

5. “EC type-approval” means the procedure whereby a Member State certifies that a type of vehicle, system, component or separate technical unit satisfies the relevant administrative provisions and technical requirements of this Directive and of the regulatory acts listed in Annex IV or XI;

…

23. “system” means an assembly of devices combined to perform one or more specific functions in a vehicle and which is subject to the requirements of any of the regulatory acts;

24. component” means a device subject to the requirements of a regulatory act and intended to be part of a vehicle, which may be type-approved independently of a vehicle where the regulatory act makes express provisions for so doing;

25. “separate technical unit” means a device subject to the requirements of a regulatory act and intended to be part of a vehicle, which may be type-approved separately, but only in relation to one or more specified types of vehicle where the regulatory act makes express provisions for so doing;

26. “original parts or equipment” means parts or equipment which are manufactured according to the specifications and production standards provided by the vehicle manufacturer for the production of parts or equipment for the assembly of the vehicle in question. This includes parts or equipment which are manufactured on the same production line as these parts or equipment. It is presumed unless the contrary is proven, that parts constitute original parts if the part manufacturer certifies that the parts match the quality of the components used for the assembly of the vehicle in question and have been manufactured according to the specifications and production standards of the vehicle manufacturer;

27. “manufacturer” means the person or body who is responsible to the approval authority for all aspects of the type-approval or authorisation process and for ensuring conformity of production. It is not essential that the person or body be directly involved in all stages of the construction of the vehicle, system, component or separate technical unit which is the subject of the approval process;

…’

7 Under Article 5 of Directive 2007/46, entitled ‘Obligations of manufacturers’:

‘1. The manufacturer is responsible to the approval authority for all aspects of the approval process and for ensuring conformity of production, whether or not the manufacturer is directly involved in all stages of the construction of a vehicle, system, component or separate technical unit.

…’

8 Article 10 of that directive, entitled ‘Specific provisions concerning systems, components or separate technical units’, is worded as follows:

‘1. Member States shall grant an EC type-approval in respect of a system which conforms to the particulars in the information folder and which meets the technical requirements laid down in the relevant separate directive or regulation, as prescribed in Annex IV or Annex XI.

2. Member States shall grant a component or separate technical unit EC type-approval in respect of a component or separate technical unit which conforms to the particulars in the information folder and which meets the technical requirements laid down in the relevant separate directive or regulation, as prescribed in Annex IV.

…’

9 Under Article 19 of that directive, entitled ‘EC type-approval mark’:

‘1. The manufacturer of a component or separate technical unit, whether or not it is part of a system, shall affix to each component or unit manufactured in conformity with the approved type the EC type-approval mark, required by the relevant separate directive or regulation.

2. Where no EC type-approval mark is required, the manufacturer shall affix at least his trade name or trade mark, and the type number and/or an identification number.

…’

10 Article 28 of that directive, entitled ‘Sale and entry into service of components and separate technical units’, provides, in paragraph 1 thereof:

‘Member States shall permit the sale or entry into service of components or separate technical units if and only if they comply with the requirements of the relevant regulatory acts and are properly marked in accordance with Article 19.’

11 Article 38(1) of Directive 2007/46, entitled ‘Information intended for...