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Italy to respect
EU rules for public works contract
Public Procurement: The Commission Requests Italy To Respect EU
Rules For Public Works Contract
Posted by: CBA Studio Legale e Tributario on March 5, 2014
in Construction law, Italy, Public procurement law, State aid and European law
The European Commission (the Commission) has recently sent to the Republic of Italy a reasoned opinion
requesting the member Country to correctly apply EU public procurement rules for the construction of new
buildings for the judicial administration of Bari (Cittadella della giustizia), with an estimated value of ! 350
million. The infringement proceedings, launched in September 2012 (case No 2012/400), concern the
award decision by which the contracting authority selected the o"er of the construction company
responsible for executing the works.
The facts
In 2003, the Municipality of Bari published a call for proposals in the OJEU for a new Cittadella della
Giustizia (court complex) in view of the poor condition and inadequacy of the existing premises. In Decision
1045/2003 it announced that the requirements were met by the proposal submitted by Impresa Pizzarotti &
C. S.p.A., under which an area of land and the complex being built were made available to the Council in the
form of a rental contract.
Legal proceedings initiated in Italy by another company resulted in de#nitive judicial recognition that
Decision 1045 did not constitute an award of tender as this was not a tender procedure, but rather that
the proposed contract was a rental agreement.
The EU infringement procedure
In September 2012, the EU opened an investigation into the infringement of Directive 2004/18/EC on public
contracts and, despite the judicial ruling, in April the Council of State referred to the European Court of
Justice the matter of whether a future rental agreement #tted the de#nition of competitive tendering
under Article 16 of Directive 2004/18/EC.
Recently, the Commission sent a reasoned opinion to the Republic of Italy, in which it indicated that
although the contract was o$cially designated an undertaking to rent, it was in fact the equivalent of a
works tendering procedure, while not taking into account indicative factors such as: a) ownership of the
area; b) the absence of works speci#cations; c) evidence of the general characteristics usually associated
with rental property; d) the value of the contract, which was inconsistent with a tendering procedure; e) the
as-yet-unsigned undertaking to rent.
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Ministry of Foreign A"airs.
The Commissions position is based on the case law of the Court of Justice of the EU, especially the
judgments in Kln Messe and Helmut Mller ( Judgment 29 October 2009, Case C-536/07, Commission v
Germany; judgment 25 March 2010, Case C-451/08, Helmut Mller). According to that case law, public
works contracts are all contracts, irrespective of their formal classi#cation, whose object is, as in the
present case the execution of works.
Italy did not apply EU public procurement rules because it considered that the contract would only
constitute a lease agreement, not a works contract. The Commission considers that Italy has violated its
obligations for the award of public works contracts. According to the Commission, the fact that no contract
has yet been signed does not exclude the existence of an infringement. The EU rules on public
procurement are designed to ensure EU-wide competition, transparency and equal treatment as well as
best value for money and therefore cannot be waived by the awarding authorities.
By: Marco Cerritelli, LLM
Tagged with: CITTADELLA CITTADELLA EUROPEAN COMMISSION EUROPEAN COMMISSION EUROPEAN COURT OF JUSTICE EUROPEAN COURT OF JUSTICE EUROPEAN UNION EUROPEAN UNION GERMANY GERMANY
HELMUT MLLER HELMUT MLLER ITALY ITALY RENTING RENTING
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