Case C‑152/17

Consorzio Italian Management and Catania Multiservizi SpA

v

Rete Ferroviaria Italiana SpA

(Request for a preliminary ruling from the Consiglio di Stato)

(Reference for a preliminary ruling — Procurement procedures of entities operating in the water, energy, transport and postal services sectors — Directive 2004/17/EC — Obligation to review prices after the award of the contract — No such obligation in Directive 2004/17/EC or arising from the general principles underlying Article 56 TFEU and Directive 2004/17/EC — Cleaning and maintenance services linked to railway transport operations — Article 3(3) TEU — Articles 26, 57, 58 and 101 TFEU — Lack of sufficient information concerning the factual context of the dispute in the main proceedings and the reasons justifying the need for a reply to the questions referred — Inadmissibility — Article 16 of the Charter of Fundamental Rights of the European Union — Provision of national law not implementing EU law — Lack of jurisdiction)

Summary — Judgment of the Court (Ninth Chamber), 19 April 2018

1. Approximation of laws—Procurement procedures of entities operating in the water, energy, transport and postal services sectors, and for public works contracts, public service contracts and public supply contracts—Directives 2004/17 and 2004/18—Scope—Contracting authority within the meaning of Directive 2004/17—Contracts connected to the carrying out of activities in one or more sectors covered by Directive 2004/17—Applicability of procedures laid down in that directive—Contracts concluded in relation to the carrying out of other activities—Applicability of procedures laid down in Directive 2004/18

   (European Parliament and Council Directive 2004/17, as amended by Regulation No 1251/2011, Articles 3 to 7, and 2004/18)

2. Approximation of laws—Procedures for awarding contracts in the water, energy, transport and postal services sectors—Directive 2004/17—Award of contracts—No obligation to review prices after the award of the contract

   (European Parliament and Council Directive 2004/17, as amended by Regulation No 1251/2011)

1.  See the text of the decision.

   (see para. 26)

2.  Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, as amended by Commission Regulation (EU) No 1251/2011 of 30 November 2011, and the general principles underlying that directive are to be interpreted as not precluding national rules, such as those at issue in the main proceedings, which do not provide for periodic price review after a contract has been awarded in the sectors covered by that directive.

   In this respect, it should be noted that it is not apparent from any provision of that directive that it must be interpreted as precluding rules of national law, such as Article 115, in conjunction with Article 206, of Legislative Decree No 163/2006, which do not provide for periodic review of prices after contracts are awarded in the sectors covered by the directive, since the latter does not impose any specific obligation on Member States to lay down provisions requiring the contracting entity to grant its contractual partner an upwards review of the price after the contract has been awarded. Similarly, the general principles underlying Directive 2004/17, in particular the principle of equal treatment and the consequent obligation of transparency enshrined in Article 10 of that directive do not preclude such rules either. On the contrary, it cannot be ruled out that a price review after the contract has been awarded may run counter to that principle and that obligation (see, by analogy, judgment of 7 September 2016, Finn Frogne, C‑549/14, EU:C:2016:634, paragraph 40). Indeed, as the Commission points out in its written observations, the contract price is an element of great importance in the assessment of tenders by a contracting entity, as well as in its decision to award the contract to an operator. This is also clear from the reference to the price in both of the criteria for the award of contracts mentioned in Article 55(1) of Directive 2004/17. In those circumstances, rules of national law which do not provide for periodic price review after the award of contracts in the sectors covered by that directive are, in fact, likely to encourage compliance with those principles.

   (see paras 29, 30, 36, operative part)