Roma Multiservizi spa and Rekeep spa v Roma Capitale and Autorità Garante della Concorrenza e del Mercato.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:610
• Date: 01 August 2022
• Docket Number: C-332/20
• Celex Number: 62020CJ0332
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Fourth Chamber)

1 August 2022 (*)

(Reference for a preliminary ruling – Public procurement – Concession contracts – Formation of a semi-public company – Award to that company of the management of an ‘integrated school service’ – Appointment of the private partner under a tender procedure – Directive 2014/23/EU – Article 38 – Directive 2014/24/EU – Article 58 – Applicability – ‘In-house’ criteria – Requirement for minimum participation of the private partner in the capital of the semi-public company – Indirect participation of the contracting authority in the capital of the private partner – Selection criteria)

In Case C‑332/20,

REQUEST for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Council of State, Italy), made by decision of 13 February 2020, received at the Court on 22 July 2020, in the proceedings

Roma Multiservizi SpA,

Rekeep SpA

v

Roma Capitale,

Autorità Garante della Concorrenza e del Mercato,

intervener:

Consorzio Nazionale Servizi Soc. coop. (CNS),

THE COURT (Fourth Chamber),

composed of C. Lycourgos (Rapporteur), President of the Chamber, S. Rodin, J.‑C. Bonichot, L. S. Rossi and O. Spineanu‑Matei, Judges,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Roma Multiservizi SpA, by F. Baglivo, T. Frosini, P. Leozappa, D. Lipani and F. Sbrana, avvocati,

– Rekeep SpA, by A. Lirosi, M. Martinelli, G. Vercillo and A. Zoppini, avvocati,

– Roma Capitale, by L. D’Ottavi, avvocato,

– Consorzio Nazionale Servizi Soc. coop. (CNS), by F. Cintioli, G. Notarnicola and A. Police, avvocati,

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

after hearing the Opinion of the Advocate General at the sitting on 24 February 2022,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 30 of Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p. 1), as amended by Commission Delegated Regulation (EU) 2017/2366 of 18 December 2017 (OJ 2017 L 337, p. 21) (‘Directive 2014/23), and Articles 12 and 18 of 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), as amended by Commission Delegated Regulation (EU) 2017/2365 of 18 December 2017 (OJ 2017 L 337, p. 19) (‘Directive 2014/24’), read in conjunction with Article 107 TFEU.

2 The request has been made in proceedings between Roma Multiservizi SpA and Rekeep SpA, on the one hand, and Roma Capitale (city of Rome, Italy) and the Autorità Garante della Concorrenza e del Mercato (Italian competition authority, Italy), on the other hand, concerning that city’s decision to exclude from the contract award procedure the consortium proposed by Roma Multiservizi and Rekeep.

Legal context

European Union law

Directive 2014/23

3 Article 3 of Directive 2014/23 provides as follows:

‘1. Contracting authorities and contracting entities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.

The design of the concession award procedure, including the estimate of the value, shall not be made with the intention of excluding it from the scope of this Directive or of unduly favouring or disadvantaging certain economic operators or certain works, supplies or services.

2. Contracting authorities and contracting entities shall aim at ensuring the transparency of the award procedure and of the performance of the contract, while complying with Article 28.’

4 Article 5 of that directive provides:

‘For the purposes of this Directive, the following definitions apply:

(1) “concessions” means works or services concessions, as defined in points (a) and (b):

…

(b) “services concession” means a contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or contracting entities entrust the provision and the management of services other than the execution of works referred to in point (a) to one or more economic operators, the consideration of which consists either solely in the right to exploit the services that are the subject of the contract or in that right together with payment.

The award of a works or services concession shall involve the transfer to the concessionaire of an operating risk in exploiting those works or services encompassing demand or supply risk or both. The concessionaire shall be deemed to assume operating risk where, under normal operating conditions, it is not guaranteed to recoup the investments made or the costs incurred in operating the works or the services which are the subject matter of the concession. The part of the risk transferred to the concessionaire shall involve real exposure to the vagaries of the market, such that any potential estimated loss incurred by the concessionaire shall not be merely nominal or negligible;

…’

5 Article 8(1) of that directive states:

‘This Directive shall apply to concessions the value of which is equal to or greater than EUR 5 548 000.’

6 Article 10(3) of the directive is worded as follows:

‘This Directive shall not apply to concessions for air transport services based on the granting of an operating licence within the meaning of Regulation (EC) No 1008/2008 of the European Parliament and of the Council [of 24 September 2008 on common rules for the operation of air services in the Community (OJ 2008 L 293, p. 3)] or to concessions for public passenger transport services within the meaning of Regulation (EC) No 1370/2007 [of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70 (OJ 2007 L 315, p. 1)].’

7 Under Article 17 of Directive 2014/23:

‘1. A concession awarded by a contracting authority or a contracting entity as referred to in point (a) of Article 7(1) to a legal person governed by private or public law shall fall outside the scope of this Directive where all of the following conditions are fulfilled:

(a) the contracting authority or contracting entity exercises over the legal person concerned a control which is similar to that which it exercises over its own departments; and

(b) more than 80% of the activities of the controlled legal person are carried out in the performance of tasks entrusted to it by the controlling contracting authority or contracting entity or by other legal persons controlled by that contracting authority or contracting entity; and

(c) there is no direct private capital participation in the controlled legal person with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence on the controlled legal person.

A contracting authority or contracting entity as referred to in point (a) of Article 7(1) shall be deemed to exercise over a legal person a control similar to that which it exercises over its own departments within the meaning of point (a) of the first subparagraph of this paragraph, where it exercises a decisive influence over both strategic objectives and significant decisions of the controlled legal person. That control may also be exercised by another legal person, which is itself controlled in the same way by the contracting authority or contracting entity.

…

4. A contract concluded exclusively between two or more contracting authorities or contracting entities as referred to in point (a) of Article 7(1) shall fall outside the scope of this Directive where all of the following conditions are fulfilled:

(a) the contract establishes or implements a cooperation between the participating contracting authorities or contracting entities with the aim of ensuring that public services they have to perform are provided with a view to achieving objectives they have in common;

(b) the implementation of that cooperation is governed solely by considerations relating to the public interest; and

(c) the participating contracting authorities or contracting entities perform on the open market less than 20% of the activities concerned by the cooperation.

…’

8 Article 19 of that directive provides:

‘Concessions for social and other specific services listed in Annex IV falling within the scope of this Directive shall be subject only to the obligations arising from Article 31(3) and Articles 32, 46 and 47.’

9 Article 20(1) of that directive provides:

‘Concessions which have as their subject matter both works and services shall be awarded in accordance with the provisions applicable to the type of concession that characterises the main subject matter of the contract in question.

In the case of mixed concessions consisting partly of social and other specific services listed in Annex IV and partly of other services, the main subject matter shall be determined according to which of the estimated values of the respective services is the higher.’

10 Article 30 of Directive 2014/23 states:

‘1. The contracting authority or contracting entity shall have the freedom to organise the procedure leading to the choice of concessionaire subject to compliance with this Directive.

2. The design of the concession award procedure shall respect the principles laid down in Article 3. In particular during the concession award procedure, the contracting authority or contracting entity shall not provide information in a discriminatory manner which may give some candidates or tenderers an advantage over others.

…’

11 Article 38(1) of Directive 2014/23 is worded as follows:

‘Contracting authorities and contracting entities shall verify the conditions for...