Freedom to provide services Procedural law9 December 2014updated 24 July 2026

Case C-425/14, Impresa Edilux – in praise of EU procurement law defining the personal situation of the tenderer [judgment 2015, ECLI:EU:C:2015:721]

C-425/14ECLI:EU:C:2015:721judgmentCURIA ↗EUR-Lex ↗

From the archive — report by Stephen Vousden · restored via the Wayback Machine

Article 45 of the EU’s ‘procurement’ Directive 2004/18/EC prevents people from competing for public works contracts if their personal situation falls within one of the grounds exhaustively set out in that Article. However, Article 45 also gives the Member States the right to create derogations. The issue in this case is whether Italy’s rules are compatible with EU law because they were designed to prevent organised crime from infiltrating public procurement contracts.

Facts
The Ancient Greek city of Selinunte is on Sicily’s west coast. The city boasts an ancient temple complex. Two of the temples were in need of restoration. Consequently, the relevant Italian public entity ran a public procurement exercise. As a result, the restoration contract was awarded to an adhoc association of construction companies, which had been formed with the express purpose of bidding for the contract. The joint venture was represented by Impresa Edilux.

However, the public entity subsequently rescinded the award of the contract. Upon investigation, the association’s bid had been found to be incomplete. It lacked an essential document stating compliance with the various Italian rules and protocols on ‘legality’ – measures designed to combat organised crime. Without that document, Italian rules permitted the entity to cancel the award of the contract, and to exclude the association from the tendering process. The entity duly did so. Aggrieved, the association petitioned the administrative law court in Palermo to annul the decision and to award it compensation but all was to no avail.

Undeterred, the association appealed to the Council of the Region of Sicily but the Council could not dispose of the matter for it was unclear whether the Italian ‘legality’ measures were compatible with the EU’s public procurement legislation.

That is to say, the key piece of EU legislation here is the EU’s 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] L124/114).

Article 45 of the Directive states that a person is to be excluded from participating in a public contract if they are convicted for either participation in a criminal organisation, or corruption or fraud or money laundering.

It appeared to the Council of the Region of Sicily that those grounds were exhaustive. Consequently, the Italian legality rules seemed to fall outside of the Directive and would thus be incompatible with it. On that basis, Edilux could not be excluded from the tendering procedure for having failed to put the essential ‘legality’ document into its bid.

However, Article 45 also allows Member States to have a derogation for ‘overriding requirements in the general interest’. Consequently, the Council of the Region of Sicily wondered whether Edilux might still be justifiably excluded from the procurement procedure on the basis that the Italian measures were designed to prevent organised crime from infiltrating public procedures.

Since the matter was unclear to Marco Lipari, President of the Administrative Law Council for the Region of Sicily, it was decided to make a reference to the CJEU.

Questions Referred
According to the Curia website, the Consiglio di giustizia amministrativa per la Regione Siciliana has asked:

1. Does EU law, and in particular Article 45 of Directive 2004/18/EC,[…] preclude a provision — such as Article 1(17) of Law No 190/2012 — under which contracting authorities may treat as a legitimate ground for excluding undertakings from a tendering procedure for the award of a public procurement contract the non-acceptance, or the lack of documentary evidence of acceptance, by those undertakings of the commitments set out in legality protocols and, more generally, in agreements between the contracting authorities and participating undertakings which are intended to prevent organised crime from infiltrating the public contract awards sector?

2. On a proper construction of Article 45 of Directive 2004/[18]/EC, may legislation of a Member State conferring the power of exclusion described in Question 1 be regarded as a derogation from the principle that the grounds for exclusion are exhaustive which is justified by the overriding need to combat the attempted infiltration of organised crime into procedures for the award of public contracts?

Comment
The Article 45 ‘derogation’ in the EU’s Directive 2004/18 is also at issue in another Italian reference, Case C-440/13, Croce Amica One Italia. The case concerns an entity that had decided not to proceed with the final award of the contract because criminal investigations were pending vis-à-vis the legal representative of the company to which the provisional award had been made. The Fifth Chamber of the CJEU is due to hand down its judgment in that case on 11 December 2014. See further, Case C-440/13, Croce Amica One Italia – ambulances, investigations and judicial jurisdiction in public procurement.

The personal situation of the tenderer is also at stake in another preliminary reference, Case C-387/14, Esaprojekt. According to the Curia website, the questions in Esaprojekt are:

1. Does Article 51 of 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 (‘’),[…] in conjunction with the principle of equal and non-discriminatory treatment of economic operators and the principle of transparency set out in Article 2 thereof, allow an economic operator, when clarifying or supplementing documents, to refer to the performance of contracts (that is to say, supplies provided) other than those which it referred to in the list of supplies attached to the tender, and in particular can it refer to the performance of contracts by another entity the use of whose resources it did not refer to in the tender?

2.In the light of the judgment of the Court of Justice in Case Manova [2013] ECR, according to which ‘[t]he principle of equal treatment must be interpreted as not precluding a contracting authority from asking a candidate, after the deadline for applying to take part in a tendering procedure, to provide documents describing that candidate’s situation — such as a copy of its published balance sheet — which can be objectively shown to pre-date that deadline, so long as it was not expressly laid down in the contract documents that, unless such documents were provided, the application would be rejected’, must Article 51 of be interpreted as meaning that the supplementing of documents is possible only when it involves documents which can be objectively shown to pre-date the deadline for submitting tenders or requests to participate in the procedure, or that the Court of Justice stated only one of the possibilities and the supplementing of documents is possible also in other cases, for example by attaching documents which did not pre-date the deadline but which objectively confirm fulfilment of a condition?

3. If the answer to Question 2 is to the effect that the supplementing of documents other than as stated in the judgment in Case Manova is possible, is it possible to supplement by adding documents drawn up by the economic operator, subcontractors or other entities on whose capacities the economic operator relies, if they were not submitted together with the tender?

4. Does Article 44 of , in conjunction with Article 48(2)(a) thereof and the principle of equal treatment of economic operators set out in Article 2, allow reliance on the resources of another entity, as referred to in Article 48(3), by combining the knowledge and experience of two entities, which, individually, do not have the knowledge and experience required by the contracting authority, where that experience cannot be divided (that is to say, the condition for participation in the procedure must be fulfilled in its entirety by the economic operator) and performance of the contract cannot be divided (constitutes a single whole)?

5. Does Article 44 of , in conjunction with Article 48(2)(a) thereof and the principle of equal treatment of economic operators in Article 2, allow reliance on the experience of a group of economic operators in such a way that an economic operator which performed a contract as one of a group of economic operators can rely on the performance by that group, regardless of what its participation in the performance of that contract was, or can it rely only on the experience it itself has actually acquired in performing the relevant part of the contract which was assigned to it within that group?

6. Can Article 45(2)(g) of Directive 2004/18/EC, which states that any economic operator which is guilty of serious misrepresentation in supplying or not supplying information can be excluded from the procedure, be interpreted as excluding from the procedure an economic operator which submitted incorrect information which affected, or could affect, the result of the procedure, in that the guilt for misrepresentation lies in the very supply to the contracting authority of the factually inaccurate information which affects the decision of the contracting authority concerning exclusion of the economic operator (and rejection of its tender), regardless of whether the economic operator did so knowingly and wilfully, or unknowingly, through recklessness, negligence or failure to exercise due diligence? It is possible to regard as ‘guilty of serious misrepresentation in supplying the information required … or [not having] supplied such information’ only an economic operator which has submitted incorrect (factually inaccurate) information, or also one which has submitted information which is correct, but has done so in such a way as to satisfy the contracting authority that it fulfils the requirements laid down by the contracting authority it, even though it does not?

7. Does Article 44 of , in conjunction with Article 48(2)(a) thereof and the principle of equal treatment of economic operators in Article 2, allow reliance by an economic operator on experience in such a way that it relies jointly on two or more contractual agreements as a single public contract, despite the fact that the contracting authority did not refer to such a possibility in the contract notice or the tender specifications?

(The omissions in Questions 4, 5 and 7 of Esaprojekt are in the version of the Questions on the Curia website.)

Outcome. By judgment of 22 October 2015 (ECLI:EU:C:2015:721) the Court ruled, in the words of the operative part: “The fundamental rules and general principles of the FEU Treaty, in particular the principles of equal treatment and of non-discrimination and the consequent obligation of transparency, must be interpreted as not precluding a provision of national law under which a contracting authority may provide that a candidate or tenderer be automatically excluded from a tendering procedure relating to a public contract for not having lodged, with its tender, a …” The full text is available on EUR-Lex and CURIA.