Luxone Srl, agissant pour son propre compte et en qualité de mandataire du GME à constituer avec Iren Smart Solutions SpA and Sofein SpA, anciennement Gi One SpA v Consip SpA.

• Jurisdiction: European Union
• Celex Number: 62023CJ0403
• ECLI: ECLI:EU:C:2024:805
• Date: 26 September 2024
• Docket Number: C-403/23,C-404/23
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Eighth Chamber)

26 September 2024 (*)

( References for a preliminary ruling – Public procurement – Directive 2004/18/EC – Article 47(3) – Article 48(4) – Exclusion of a tenderer from the tender procedure – Exclusion of the possibility to reduce the initial membership of a temporary group of undertakings which has submitted a tender – Not compatible – Period of validity of a tender – Tender does not lapse at the end of its term – Obligation under the case-law to expressly withdraw that tender – Loss of the provisional security accompanying that tender – Automatic application of that measure – Article 2 – Principles relating to public procurement – Principle of proportionality – Principle of equal treatment – Obligation of transparency – Infringement )

In Joined Cases C‑403/23 and C‑404/23,

TWO REQUESTS for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Council of State, Italy), made by decisions of 16 June 2023, received at the Court on 30 June 2023 and 3 July 2023, in the proceedings

Luxone Srl, acting on its own behalf and as agent of the temporary group of undertakings to be formed with Iren Smart Solutions SpA (C‑403/23),

Sofein SpA, formerly Gi One SpA (C‑404/23)

v

Consip SpA,

interveners:

Elba Compagnia di Assicurazioni e Riassicurazioni SpA,

Sofein SpA, formerly Gi One SpA (C‑403/23),

Iren Smart Solutions SpA,

Consorzio Stabile Energie Locali Scarl,

City Green Light Srl,

Enel Sole Srl,

Luxone Srl (C‑404/23),

THE COURT (Eighth Chamber),

composed of N. Piçarra, President of the Chamber, N. Jääskinen and M. Gavalec (Rapporteur), Judges,

Advocate General: P. Pikamäe,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Luxone Srl, acting on its own behalf and as agent of the temporary group of undertakings to be formed with Iren Smart Solutions SpA, and Sofein SpA, by P. Leozappa, avvocato,

– the Italian Government, by G. Palmieri, acting as Agent, and by A. De Curtis, L. Fiandaca and D.G. Pintus, avvocati dello Stato,

– the European Commission, by G. Gattinara and G. Wils, acting as Agents,

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

gives the following

Judgment

1 These requests for a preliminary ruling concern the interpretation 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 and corrigendum OJ 2004 L 351, p. 44), Article 6 TEU, Articles 49, 50, 54 and 56 TFEU, Articles 16, 49, 50 and 52 of the Charter of Fundamental Rights of the European Union (‘the Charter’), and Article 4 of Protocol No 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Strasbourg on 22 November 1984.

2 The requests have been made in two sets of proceedings between, respectively, Luxone Srl, in its own name and as agent of the temporary group of undertakings to be formed with Iren Smart Solutions SpA, in Case C‑403/23, and Sofein SpA, formerly Gi One SpA, in Case C‑404/23, on the one hand, and the same contracting authority, Consip SpA, on the other, concerning decisions by which Consip SpA (i) excluded the temporary group of undertakings, of which Luxone and Sofein formed part, from a public procurement procedure and (ii) enforced the provisional security provided by the members of the group for their participation in that procedure.

Legal context

European Union law

Directive 2004/18

3 Recitals 2 and 32 of Directive 2004/18 stated:

‘(2) The award of contracts concluded in the Member States on behalf of the State, regional or local authorities and other bodies governed by public law entities, is subject to the respect of the principles of the Treaty and in particular to the principle of freedom of movement of goods, the principle of freedom of establishment and the principle of freedom to provide services and to the principles deriving therefrom, such as the principle of equal treatment, the principle of non-discrimination, the principle of mutual recognition, the principle of proportionality and the principle of transparency. However, for public contracts above a certain value, it is advisable to draw up provisions of Community coordination of national procedures for the award of such contracts which are based on these principles so as to ensure the effects of them and to guarantee the opening-up of public procurement to competition. These coordinating provisions should therefore be interpreted in accordance with both the aforementioned rules and principles and other rules of the Treaty.

…

(32) In order to encourage the involvement of small and medium-sized [enterprises (SMEs)] in the public contracts procurement market, it is advisable to include provisions on subcontracting.’

4 Article 2 of that directive, entitled ‘Principles of awarding contracts’, provided:

‘Contracting authorities shall treat economic operators equally and non-discriminatorily and shall act in a transparent way.’

5 Article 4 of that directive, entitled ‘Economic operators’, provided, in paragraph 2 thereof:

‘Groups of economic operators may submit tenders or put themselves forward as candidates. In order to submit a tender or a request to participate, these groups may not be required by the contracting authorities to assume a specific legal form; however, the group selected may be required to do so when it has been awarded the contract, to the extent that this change is necessary for the satisfactory performance of the contract.’

6 Article 45 of that directive, entitled ‘Personal situation of the candidate or tenderer’, provided, in paragraph 2 thereof:

‘Any economic operator may be excluded from participation in a contract where that economic operator:

…

(c) has been convicted by a judgment which has the force of res judicata in accordance with the legal provisions of the country of any offence concerning his professional conduct;

(d) has been guilty of grave professional misconduct proven by any means which the contracting authorities can demonstrate;

…

(g) is guilty of serious misrepresentation in supplying the information required under this Section or has not supplied such information.

Member States shall specify, in accordance with their national law and having regard for Community law, the implementing conditions for this paragraph.’

7 Article 47 of Directive 2004/18, entitled ‘Economic and financial standing’, provided, in paragraphs 2 and 3 thereof:

‘2. An economic operator may, where appropriate and for a particular contract, rely on the capacities of other entities, regardless of the legal nature of the links which it has with them. It must in that case prove to the contracting authority that it will have at its disposal the resources necessary, for example, by producing an undertaking by those entities to that effect.

3. Under the same conditions, a group of economic operators as referred to in Article 4 may rely on the capacities of participants in the group or of other entities.’

8 Article 48 of that directive, entitled ‘Technical and/or professional ability’, provided:

‘1. The technical and/or professional abilities of the economic operators shall be assessed and examined in accordance with paragraphs 2 and 3.

…

3. An economic operator may, where appropriate and for a particular contract, rely on the capacities of other entities, regardless of the legal nature of the links which it has with them. It must in that case prove to the contracting authority that it will have at its disposal the resources necessary for the execution of the contract, for example, by producing an undertaking by those entities to place the necessary resources at the disposal of the economic operator.

4. Under the same conditions a group of economic operators as referred to [in] Article 4 may rely on the abilities of participants in the group or in other entities.’

9 Entitled ‘Information which must be included in public contract notices’, Annex VII A to that directive provided, in points 14 and 21 of the section dealing with ‘Contract notices’, that a contract notice had to state, respectively, ‘where appropriate, [the] deposit and guarantees required’, and the ‘time frame during which the tenderer must maintain its tender (open procedures)’.

Directive 2004/17

10 It follows from Articles 3 to 9 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 (OJ 2004 L 134, p. 1) that that directive applied to public contracts which relate to one or more activities in the following fields: gas, heat and electricity; water; transport services; postal services; exploration for, or extraction of, oil, gas, coal or other solid fuels.

11 Article 11(2) of Directive 2004/17 was worded in the same terms as Article 4(2) of Directive 2004/18, except that the expression ‘contracting authorities’ was replaced by a reference to ‘contracting entities’.

Italian law

12 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 adopting the Code on public works contracts, public service contracts and public supply contracts and transposing Directives 2004/17/EC and 2004/18/EC) of 12 April 2006 (GURI No 100 of 2 May 2006, Ordinary Supplement No 107) (‘the previous Public Procurement Code’) contained Article 11, entitled ‘Stages of the public procurement process’, which provided, in paragraph 6 thereof:

‘No tenderer may submit more than one tender. The tender shall be binding on the tenderer for the period specified in the notice or invitation to tender or, if...