Lloyd's of London v Agenzia Regionale per la Protezione dell'Ambiente della Calabria.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Regan
• ECLI: ECLI:EU:C:2018:78
• Celex Number: 62017CJ0144
• Docket Number: C-144/17
• Procedure Type: Reference for a preliminary ruling
• Date: 08 February 2018

JUDGMENT OF THE COURT (Sixth Chamber)

8 February 2018 ( *1 )

(Reference for a preliminary ruling — Public procurement — Articles 49 and 56 TFEU — Directive 2004/18/EC — Reasons for exclusion from a tendering procedure — Insurance services — Participation of several Lloyd’s of London syndicates in the same tendering procedure — Signature of tenders by the Lloyd’s of London General Representative for the country concerned — Principles of transparency, equal treatment and non-discrimination — Proportionality)

In Case C‑144/17,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunale amministrativo regionale per la Calabria (Regional Administrative Court, Calabria, Italy), made by decision of 22 February 2017, received at the Court on 22 March 2017, in the proceedings

Lloyd’s of London

v

Agenzia Regionale per la Protezione dell’Ambiente della Calabria,

THE COURT (Sixth Chamber),

composed of C.G. Fernlund, President of the Chamber, J.-C. Bonichot and E. Regan (Rapporteur), Judges,

Advocate General: E. Tanchev,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Lloyd’s of London, by R. Villata, A. Degli Esposti and P. Biavati, avvocati,

– Agenzia Regionale per la Protezione dell’Ambiente della Calabria, by V. Zicaro, avvocato,

– the Italian Government, by G. Palmieri, acting as Agent, and by E. De Bonis, avvocato dello Stato,

– the European Commission, by N. Khan, G. Gattinara and P. Ondrůšek, 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 the principles of transparency, equal treatment and non-discrimination which derive from Articles 49 and 56 TFEU and are referred to in Article 2 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 (OJ 2004 L 134, p. 114).

2 The request has been made in proceedings between Lloyd’s of London (‘Lloyd’s’) and the Agenzia Regionale per la Protezione dell’Ambiente della Calabria (Calabria Regional Environmental Protection Agency, Italy) (‘Arpacal’), concerning the decision of the latter to exclude two syndicates of Lloyd’s from the procedure for the award of a public service contract for insurance.

Legal context

European Union law

Directive 2004/18

3 As stated in recital 46 of Directive 2004/18: ‘Contracts should be awarded on the basis of objective criteria which ensure compliance with the principles of transparency, non-discrimination and equal treatment and which guarantee that tenders are assessed in conditions of effective competition. …’

4 Article 2 of that directive provided: ‘Contracting authorities shall treat economic operators equally and non-discriminatorily and shall act in a transparent way.’

5 Article 45 of the directive specified the reasons for excluding an economic operator from participation in a tendering procedure.

6 Directive 2004/18 was repealed by Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement (OJ 2014 L 94, p. 65). Under Article 90(1) of Directive 2014/24, the Member States were to bring into force the measures necessary to comply with that directive by 18 April 2016 at the latest. Pursuant to Article 91 of that directive, the repeal of Directive 2004/18 took effect on the same date.

Directive 2009/138/EC

7 Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (OJ 2009 L 335, p. 1), provides, in Article 145(2), entitled ‘Conditions for branch establishment’, as follows: ‘Member States shall require every insurance undertaking that proposes to establish a branch within the territory of another Member State to provide the following information when effecting the notification provided for in paragraph 1: … (c) the name of a person who possesses sufficient powers to bind, in relation to third parties, the insurance undertaking or, in the case of Lloyd’s, the underwriters concerned and to represent it or them in relations with the authorities and courts of the host Member State (the authorised agent); … With regard to Lloyd’s, in the event of any litigation in the host Member State arising out of underwritten commitments, the insured persons shall not be treated less favourably than if the litigation had been brought against businesses of a conventional type.’

8 Annex III to Directive 2009/138, entitled ‘Legal Forms of Undertakings’, contains, in each of its parts A to C on the forms of life insurance, non-life insurance and reinsurance undertakings, a point 27 which mentions, with regard to the United Kingdom, the association of underwriters known as Lloyd’s.

Italian law

9 The 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 implementing Directives 2004/17/EC and 2004/18/EC) of 12 April 2006 (Ordinary Supplement to GURI No 100 of 2 May 2006), as amended by Decree-Law No 135 of 25 September 2009 (GURI No 223 of 25 September 2009), converted into law by Law No 166 of 20 November 2009 (GURI No 274 of 24 November 2009) (‘Legislative Decree No 163/2006’), governed, in their entirety, the procedures in Italy for the award of public works contracts, public service contracts and public supply contracts.

10 Article 38(1)(m), quater, of that legislative decree provided that tenderers which ‘… are, in relation to another participant in the same tendering procedure, in a situation of control for the purposes of Article 2359 of the Codice civile (Civil Code), or in any relationship, including a de facto relationship, where the situation of control or relationship means that the tenders are attributable to a single decision-making centre’ would be excluded from participation in a procedure for the award of concessions and of public works, supply and service contracts, and could not conclude contracts pertaining thereto or sub-contracts.

11 As regards, in particular, the declarations that candidates or tenderers must submit, Article 38(2) of Legislative Decree No 163/2006 provided: ‘For the purposes of paragraph (1)(m), quater, the tenderer shall attach one of the following declarations: (a) a declaration that it is not in a situation of control for the purposes of Article 2359 of the Civil Code in relation to any person, and that it is submitting the tender independently; (b) a declaration that it is not aware of the participation in the procedure of persons that are, in relation to the tenderer, in any of the situations of control referred to in Article 2359 of the Civil Code, and that it is submitting the tender independently; or (c) a declaration that it is not aware of the participation in the procedure of persons that are, in relation to the tenderer, in any of the situations of control referred to in Article 2359 of the Civil Code, and that it is submitting the tender independently. In the situations described in points (a), (b) and (c), the contracting authority shall exclude those tenderers in respect of which it establishes that the tenders are attributable to a single decision-making centre, on the basis of unambiguous evidence. Verification shall take place and any tenders be excluded after the opening of the envelopes containing the financial bid.’

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

12 On 13 August 2015, Arpacal launched an open tendering procedure for the award of a contract for insurance cover services, with a view to covering risk linked to the agency’s civil liability towards third parties and workers for the period covering the years 2016 to 2018. The contract was to be awarded on the basis of the most economically advantageous tender (MEAT) criterion.

13 Amongst others, two Lloyd’s syndicates, Arch and Tokio Marine Kiln, participated in the call for tenders. The tenders were both signed by the Special Agent of Lloyd’s General Representative for Italy.

14 By decisions of 29 September 2015 and 1 October 2016, Arpacal excluded those two syndicates from the procedure, on the ground of infringement of Article 38(1)(m), quater, of Legislative Decree No 163/2006.

15 Seised by Lloyd’s through its General Representative for Italy, the referring court, the Tribunale amministrativo regionale per la Calabria (Regional Administrative Court, Calabria, Italy), censured each of those two decisions by judgments, respectively, of 19 January and 21 November 2016 and ordered, at the end of each judgment, that the two syndicates be readmitted to the tendering procedure.

16 By two decisions adopted on 14 December 2016, Arpacal again excluded the two syndicates from the procedure for infringement of Article 38(1)(m), quater, of Legislative Decree No 163/2006 on the ground that the tenders were objectively attributable to a single decision-making centre, since the technical and economic tenders had...