Decision n. 2734, 15th March 2023, Council of State, sec. V, Italy
Article(s) in Directive 2014/24/EU: Art. 19
Topic: Neutrality of legal forms of economic operators competing in public procurement tenders
Member State: ITA
Court/rev. board: Council of State
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Articles 45 and 83, para. 8, of Legislative Decree no. 50/2016
2. FACTS
A cultural association (Retròbottega) has appealed against the judgment of the Regional Administrative Tribunal of Veneto region, which, upholding the appeal of the second-ranked association (Non Ho l’Età), annulled the measure the Municipality of Verona entrusted to the current appellant, at the outcome of a selective procedure called by public notice, foreseeing the management of the Antiques and Collectibles Market held in the city, for the period 2020-2023.
The first instance judgment found well-founded the third ground of complaint alleging the unlawfulness of the contested award for violating the law, in that the counterpart should have been excluded because it lacked a participation requirement, being it constituted in the form of an unrecognized association and not “by public deed or notarized private writing” (as prescribed in the public notice).
According to the Tribunal, the registration of the association – considered aimed at the mere acquisition of tax subjectivity – would be of no use in the opposite sense, nor could the request by the tender notice be considered unreasonable or abnormal, since the Administration could have limited the choice to only those operators who, in so far as they are constituted by public deed or notarized private deed (and therefore have legal personality and complete financial autonomy) “are provided with adequate economic reliability and an organizational apparatus more capable of responding to the tasks assumed with the entrustment of the service”.
The appellant challenged this view, claiming the violation of the national law (Articles 45 and 83, para. 8, of Legislative Decree no. 50/2016); of the EU law principles on the neutrality of the legal forms of economic operators (in particular non-profit entities participating in procedures for the award of public contracts and concessions), and of the principle of necessary unambiguity of exclusionary clauses.
3. JUDGMENT
In this case, the Consiglio di Stato noted that the neutrality of the legal forms assumed by economic operators competing in public procurement procedures is inferred from EU law. Therefore, enterprises, branches, subsidiaries, partnerships, cooperative societies, limited liability companies, public or private universities and other forms of entities other than natural persons should be included in the notion of economic operator, regardless of whether they are “legal persons” or not in all circumstances. The interpretation upheld in this case does not consider either that the formal constitution constraint recognized by it cannot be applied to all economic operators covered by the clause of the notice, nor that the clause in question also covers operators without complete financial autonomy. Otherwise, i.e. making compulsory for entities having those certain purposes, through the provisions of the lex specialis, particular forms or publicity of their establishment, instead expressly excluded by law, would prevent the same entities from competing in a procedure for the awarding of a service that the same entities are authorized by the legislator to offer on the market.
MAIN LEGAL ISSUE: the contracting authority cannot preclude legal entities from participating in a procurement based on its legal form and, in particular, on the legal procedure required for its incorporation (in the specific case, the applicant was incorporated on the basis of an act without the signature authenticated by a notary). The decision of CJEU C-219/19 is mentioned.
