Tim SpA - Direzione e coordinamento Vivendi SA v Consip SpA and Ministero dell'Economia e delle Finanze.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2020:58
• Date: 30 January 2020
• Docket Number: C-395/18

Provisional text

JUDGMENT OF THE COURT (Second Chamber)

30 January 2020(*)

(Reference for a preliminary ruling — Public procurement of supplies, works or services — Directive 2014/24/EU — Article 18(2) — Article 57(4) — Optional grounds for exclusion — Ground for exclusion of a subcontractor mentioned in the economic operator’s tender — Subcontractor’s failure to comply with environmental, social and labour law obligations — National legislation providing for automatic exclusion of the economic operator for such a failure)

In Case C‑395/18,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy), made by decision of 21 February 2018, received at the Court on 14 June 2018, in the proceedings

Tim SpA — Direzione e coordinamento Vivendi SA

v

Consip SpA,

Ministero dell’Economia e delle Finanze,

intervener:

E-VIA SpA,

THE COURT (Second Chamber),

composed of A. Arabadjiev, President of the Chamber, P.G. Xuereb, T. von Danwitz, C. Vajda (Rapporteur) and A. Kumin, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: R. Schiano, Administrator,

having regard to the written procedure and further to the hearing on 2 May 2019,

after considering the observations submitted on behalf of

– Tim SpA — Direzione e coordinamento Vivendi SA, by F. Cardarelli, F. Lattanzi and F.S. Cantella, avvocati,

– Consip SpA, by F. Sciaudone and F. Iacovone, avvocati,

– the Austrian Government, by J. Schmoll, M. Fruhmann and G. Hesse, acting as Agents,

– the European Commission, by G. Gattinara, P. Ondrůšek and L. Haasbeek, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 11 July 2019,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 57(4) and Article 71(6) 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).

2 That request has been made in proceedings between Tim SpA — Direzione e coordinamento Vivendi SA (‘Tim’) and Consip SpA and the Ministero dell’Economia e delle Finanze (Ministry of the Economy and Finance, Italy) concerning the exclusion of Tim from an open tender procedure organised by Consip.

Legal context

European Union law

3 Recitals 40, 101 and 102 of Directive 2014/24 state:

‘(40) Control of the observance of the environmental, social and labour law provisions should be performed at the relevant stages of the procurement procedure, when applying the general principles governing the choice of participants and the award of contracts, when applying the exclusion criteria and when applying the provisions concerning abnormally low tenders. …

…

(101) Contracting authorities should further be given the possibility to exclude economic operators which have proven unreliable, for instance because of violations of environmental or social obligations, including rules on accessibility for disabled persons or other forms of grave professional misconduct, such as violations of competition rules or of intellectual property rights. …

…

In applying facultative grounds for exclusion, contracting authorities should pay particular attention to the principle of proportionality. Minor irregularities should only in exceptional circumstances lead to the exclusion of an economic operator. However repeated cases of minor irregularities can give rise to doubts about the reliability of an economic operator which might justify its exclusion.

(102) Allowance should, however, be made for the possibility that economic operators can adopt compliance measures aimed at remedying the consequences of any criminal offences or misconduct and at effectively preventing further occurrences of the misbehaviour. Those measures might consist in particular of personnel and organisational measures such as the severance of all links with persons or organisations involved in the misbehaviour, appropriate staff reorganisation measures, the implementation of reporting and control systems, the creation of an internal audit structure to monitor compliance and the adoption of internal liability and compensation rules. Where such measures offer sufficient guarantees, the economic operator in question should no longer be excluded on those grounds alone. Economic operators should have the possibility to request that compliance measures taken with a view to possible admission to the procurement procedure be examined. However, it should be left to Member States to determine the exact procedural and substantive conditions applicable in such cases. They should, in particular, be free to decide whether to allow the individual contracting authorities to carry out the relevant assessments or to entrust other authorities on a central or decentralised level with that task.’

4 Under Article 2(1), points (10) to (12), of that directive:

‘For the purpose of this Directive:

…

10. “economic operator” means any natural or legal person or public entity or group of such persons and/or entities, including any temporary association of undertakings, which offers the execution of works and/or a work, the supply of products or the provision of services on the market;

11. “tenderer” means an economic operator that has submitted a tender;

12. “candidate” means an economic operator that has sought an invitation or has been invited to take part in a restricted procedure, in a competitive procedure with negotiation, in a negotiated procedure without prior publication, in a competitive dialogue or in an innovation partnership;’

5 Article 18 of that directive, entitled ‘Principles of procurement’ and which constitute the first provision of Chapter II of that directive, entitled ‘General Rules’, provides:

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

The design of the procurement shall not be made with the intention of excluding it from the scope of this Directive or of artificially narrowing competition. Competition shall be considered to be artificially narrowed where the design of the procurement is made with the intention of unduly favouring or disadvantaging certain economic operators.

2. Member States shall take appropriate measures to ensure that in the performance of public contracts economic operators comply with applicable obligations in the fields of environmental, social and labour law established by Union law, national law, collective agreements or by the international environmental, social and labour law provisions listed in Annex X.’

6 Under Article 56(1)(b) of that directive:

‘Contracts shall be awarded on the basis of criteria laid down in accordance with Articles 67 to 69, provided that the contracting authority has verified in accordance with Articles 59 to 61 that all of the following conditions are fulfilled:

…

(b) the tender comes from a tenderer that is not excluded in accordance with Article 57 …’

7 Article 57 of Directive 2014/24, entitled ‘Exclusion grounds’, provides in paragraphs 4 to 7 thereof:

‘4. Contracting authorities may exclude or may be required by Member States to exclude from participation in a procurement procedure any economic operator in any of the following situations:

(a) where the contracting authority can demonstrate by any appropriate means a violation of applicable obligations referred to in Article 18(2);

…

5. …

At any time during the procedure, contracting authorities may exclude or may be required by Member States to exclude an economic operator where it turns out that the economic operator is, in view of acts committed or omitted either before or during the procedure, in one of the situations referred to in paragraph 4.

6. Any economic operator that is in one of the situations referred to in paragraphs 1 and 4 may provide evidence to the effect that measures taken by the economic operator are sufficient to demonstrate its reliability despite the existence of a relevant ground for exclusion. If such evidence is considered as sufficient, the economic operator concerned shall not be excluded from the procurement procedure.

…

The measures taken by the economic operators shall be evaluated taking into account the gravity and particular circumstances of the criminal offence or misconduct. …

…

7. By law, regulation or administrative provision and having regard to Union law, Member States shall specify the implementing conditions for this Article. …’

8 Article 71(6)(b) of that Directive provides:

‘With the aim of avoiding breaches of the obligations referred to in Article 18(2), appropriate measures may be taken, such as:

…

(b) Contracting authorities may, in accordance with Articles 59, 60 and 61, verify or may be required by Member States to verify whether there are grounds for exclusion of subcontractors pursuant to Article 57. In such cases, the contracting authority shall require that the economic operator replaces a subcontractor in respect of which the verification has shown that there are compulsory grounds for exclusion. The contracting authority may require or may be required by a Member State to require that the economic operator replaces a subcontractor in respect of which the verification has shown that there are non-compulsory grounds for exclusion.’

Italian law

9 Article 17 of legge n. 68 — Norme per il diritto al lavoro dei disabili (Law No 68 concerning the rules on disabled persons’ right to work) of 12 March 1999 (ordinary supplement to GURI No 68, of 23 March 1999) provides:

‘Both public and private sector companies which take part in public procurement procedures, operate concessions or have agreements with government bodies must first provide the government body in question with a declaration by their legal representative stating that they comply with the rules on disabled persons’ right to work. If...