Undis Servizi Srl v Comune di Sulmona.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Juhász
• ECLI: ECLI:EU:C:2016:935
• Docket Number: C-553/15
• Date: 08 December 2016
• Procedure Type: Reference for a preliminary ruling

JUDGMENT OF THE COURT (Fourth Chamber)

8 December 2016 ( *1 )

‛Reference for a preliminary ruling — Public service contracts — Award of the contract without initiating a tendering procedure — So-called ‘in-house’ award — Conditions — Similar control — Performance of the essential activity — Successful public capital tendering company owned by several local authorities — Activity also carried out for the benefit of local authorities which are not shareholders — Activity imposed by a public authority which is not a shareholder’

In Case C‑553/15,

REQUEST for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Council of State, Italy), made by decision of 25 June 2015, received at the Court on 26 October 2015, in the proceedings

Undis Servizi Srl

v

Comune di Sulmona,

other party to the proceedings:

Cogesa SpA,

THE COURT (Fourth Chamber),

composed of T. von Danwitz, President of the Chamber, E. Juhász (Rapporteur), C. Vajda, K. Jürimäe and C. Lycourgos, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

— Undis Servizi Srl, by S. Della Rocca, avvocato,

— Comune di Sulmona, by G. Blandini and M. Fracassi, avvocati,

— Cogesa SpA, by R. Colagrande, avvocato,

— the Italian Government, by G. Palmieri, acting as Agent, and by C. Colelli, avvocato dello Stato,

— the European Commission, by G. Conte and A. Tokár, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of EU law on the award of a public contract without a public tendering procedure, a so-called ‘in-house’ award.

2 The request has been submitted in a dispute between Undis Servizi Srl (‘Undis’) and the Comune di Sulmona (Municipality of Sulmona, Italy), concerning the direct award of a contract for services by that municipality to Cogesa SpA.

Legal context

EU law

3 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 (OJ 2004 L 134, p. 114) establishes the regulatory framework applicable to contracts awarded by contracting authorities.

4 Article 1 of that directive, entitled ‘Definitions’, provides in paragraph 2(a): ‘“Public contracts” are contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services within the meaning of this Directive.’

5 EU rules on the award of public contracts, in force at the time of the facts in the main proceedings, did not provide for the possibility of a direct award of a public contract without the initiation of a tendering procedure, a so-called ‘in-house’ award. Such a possibility had, however, been recognised by the case-law of the Court, the latter having also laid down the conditions in this connection.

6 According to that case-law, now settled, a contracting authority, such as a local authority, is exempted from initiating a procedure for the award of a public contract on condition that it satisfies the dual requirement that, first, it exercises over the successful contractor, legally separate from that authority, control similar to that which it exercises over its own departments and, second, the successful contractor carries out the essential part of its activities with the contracting authority or authorities to which it belongs (see, to that effect, judgment of 18 November 1999, Teckal, C‑107/98, EU:C:1999:562, paragraph 50).

7 Directive 2004/18 was repealed and replaced by 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). In accordance with Article 91 of Directive 2014/24, the repeal of Directive 2004/18 took effect on 18 April 2016.

Italian law

8 According to the information in the order for reference, no provision of Italian law lays down the conditions to which the direct award of public contracts is subject, as national law refers to EU law in that regard.

9 Article 30 of decreto legislativo n. 267 — Testo unico delle leggi sull’ordinamento degli enti locali (Legislative Decree No 267 — Consolidated Law on the rules governing local authorities) of 18 August 2000 (ordinary supplement to GURI No 162 of 28 September 2000) provides: ‘1. In order to discharge certain functions and to provide certain services in a coordinated manner, local authorities may enter into appropriate agreements with each other. 2. Such agreements must set out the objectives, duration, forms of consultation between the contracting authorities, their financial relationships and their reciprocal obligations and guarantees. 3. As regards the fixed-term management of a specific service or performance of a task, the State and Regions may, in respect of those areas which come within their responsibility, provide for forms of mandatory agreement between local authorities, subject to the establishment of standard rules. …’

10 As the referring court states, the second sentence of Article 149a(1) of decreto legislativo n. 152 — Norme in materia ambientale (Legislative Decree No 152 of 3 April 2006 on environmental standards) (Ordinary Supplement to GURI No 96 of 14 April 2006) provides: ‘The direct award of a contract may be made to wholly public companies which comply with European Union regulatory requirements for in-house management, and which are, in any event, owned by local authorities within the territory concerned.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

11 It is apparent from the documents before the Court that, by decision of 30 September 2014, the municipal council of the Municipality of Sulmona awarded the contract for management of the integrated cycle of municipal waste to Cogesa, a wholly public capital company owned by several municipalities of the Regione Abruzzo (Abruzzo Region, Italy), including the Municipality of Sulmona. The latter holds 200 shares out of the 1200 representing the company’s total share capital, that is to say, a holding of approximately 16.6% of that capital.

12 On 30 October 2014, although the contract for services with Cogesa had not yet been concluded, the local authorities with shares in Cogesa entered into an agreement to exercise jointly over that body a control similar to that exercised over their own departments (‘the Agreement of 30 October 2014’).

13 By Integrated Environmental Authorisation No 9/11, the Abruzzo Region required Cogesa, in accordance with the principles of self-sufficiency, proximity and subsidiarity, to treat and recover the urban waste of certain municipalities of that region which were not shareholders of that company.

14 Undis, a company with an interest in the contract for services at issue in the main proceedings, brought proceedings before the Tribunale amministrativo regionale per l’Abruzzo (Abruzzo Regional Administrative Court, Italy) against the decision to award that contract for services and against the decision approving the inter-municipal agreement project referred to in paragraph 12 of the present judgment. Alleging infringement of Article 2 of decreto legislativo n. 163 — Codice dei contratti pubblici relativi a lavori, servizi e forniture in attuazione delle direttive 2004/17/CE e 2004/18/CE (Legislative-Decree No 163 — Code on public works contracts, public service contracts and public supply contracts in implementation of Directives 2004/17/EC and 2004/18/EC) of 12 April 2006 (Ordinary Supplement to GURI No 100 of 2 May 2006), as well as Articles 43, 49 and 86 TFEU, Undis claimed that the two conditions required for that contract of services to be awarded on an ‘in-house’ basis had not been met.

15 More specifically, Undis claimed that the condition requiring the contracting authority to exercise over the successful tenderer, legally separate from that authority, control similar to that which it exercises over its own departments had not been met. It argues that the Municipality of Sulmona is a minority shareholder of Cogesa, that the Agreement of 30 October 2014 was entered into after the decision to award the contract for services at issue in the main proceedings, and that that company’s statute confers on the company’s constituent bodies a degree of independence incompatible with the concept of ‘similar control’. Undis added that the condition requiring the successful tenderer to perform the essential part of its activities with the contracting authority or authorities had also not been met. According to Undis, Cogesa’s financial statements covering the years 2011 to 2013 indicated that only 50% of its overall activity had been performed with shareholder local authorities, given that activities carried out for the benefit of non-shareholder municipalities had to be included in that overall activity.

16 The Tribunale amministrativo regionale per l’Abruzzo (Abruzzo Regional Administrative Court) dismissed the action. That court considered first that the condition of similar control was met as a result of the conclusion of the Agreement of 30 October 2014. It then ruled...