Case C‑327/12

Ministero dello Sviluppo economico andAutorità per la vigilanza sui contratti pubblici di lavori, servizi e forniture

v

SOA Nazionale Costruttori — Organismo di Attestazione SpA

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

‛Articles 101 TFEU, 102 TFEU and 106 TFEU — Public undertakings and undertakings to which special or exclusive rights have been granted — Undertakings entrusted with the operation of services of general economic interest — Definition — Bodies tasked with checking and certifying compliance by undertakings carrying out public works with the conditions required by the law — Article 49 TFEU — Freedom of establishment — Restriction — Justification — Protection of recipients of services — Status of certification services’

Summary — Judgment of the Court (Fourth Chamber), 12 December 2013

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer — Questions bearing no relation to the subject matter of the case in the main proceedings

   (Art. 267 TFEU)

2. Competition — European Union rules — Undertaking — Concept — Commercial undertakings entrusted with supplying certification services — Inclusion — Conditions

   (Arts 101 TFEU, 102 TFEU and 106 TFEU)

3. Competition — European Union rules — Obligations of the Member States — National legislation imposing on companies classified as attestation organisations a scheme of compulsory minimum tariffs for certification services supplied to undertakings seeking to participate in procedures for the award of public works contracts — Lawfulness — Conditions

   (Art. 4(3) TEU; Arts 101 TFEU, 102 TFEU and 106 TFEU)

4. Questions referred for a preliminary ruling — Jurisdiction of the Court — Question raised concerning a dispute confined within a single Member State — Inclusion in the light of the potential interest of undertakings from other Member States to exercise activities in that State

   (Art. 267 TFEU)

5. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Question raised concerning a dispute confined within a single Member State — Jurisdiction in the light of the potential applicability of the rule of EU law to the dispute on account of a prohibition on discrimination established by national law

   (Art. 267 TFEU)

6. Freedom of establishment — Exceptions — Activities connected with the exercise of official authority — Scope — Roadworthiness certification activities only recording the results of the roadworthiness test — Not included — Conditions

   (Art. 51 TFEU)

7. Freedom of establishment — Restrictions — National legislation imposing on companies classified as attestation organisations a scheme of compulsory minimum tariffs for certification services supplied to undertakings seeking to participate in procedures for the award of public works contracts — Restrictions justified by the general interest — Protection of recipients of services — Lawfulness — Conditions — Proportionality of such legislation — To be determined by the national court

   (Art. 49 TFEU)

1.  See the text of the decision.

   (see paras 20, 21)

2.  See the text of the decision.

   (see paras 28-35)

3.  Articles 101 TFEU, 102 TFEU and 106 TFEU must be interpreted as meaning that they do not preclude national legislation which imposes on companies classified as attestation organisations a scheme of minimum tariffs for certification services offered to undertakings seeking to participate in procedures for the award of public works contracts

   First, such legislation does not infringe Articles 101 TFEU or 102 TFEU, read in conjunction with Article 4(3) TEU, where it does not have the effect of requiring or encouraging the adoption of agreements, decisions or concerted practices contrary to Article 101 TFEU or reinforces their effects and the Member State does not divest its own rules of the character of legislation by delegating to private economic operators responsibility for taking decisions affecting the economic sphere, or requires or encourages abuses of a dominant position.

   In addition, regarding Article 106 TFEU, the fact that all attestation organisations of a Member State, and only attestation organisations, have been entrusted with certification tasks cannot be considered as granting special or exclusive rights to the latter where all attestation organisations have the same rights and competences in the context of the relevant certification service market, since no competitive advantages have been created in favour of certain undertakings active on that market to the detriment of other undertakings supplying the same services, and that the authorisation to create new attestation organisations is not restricted to a limited number of bodies, but is granted to anybody satisfying the conditions provided for in the national legislation.

   (see paras 38, 42, 44, operative part)

4.  See the text of the decision.

   (see paras 47, 48)

5.  See the text of the decision.

   (see para. 49)

6.  The exception provided for in Article 51 TFEU is restricted to activities which in themselves are directly and specifically connected with the exercise of official authority.

   Decisions whether or not to certify roadworthiness, which essentially only record the results of the roadworthiness test, in so far as, first, they lack the decision-making independence in the exercise of public authority powers and, secondly, are taken in the context of direct State supervision, do not fall within the scope of that exception. Likewise, the auxiliary and preparatory role devolved on private bodies vis-à-vis the supervisory authority cannot be regarded as being directly and specifically connected with the exercise of official authority, within the meaning of Article 51 TFEU.

   Consequently, the check, regulated entirely by national legislation, of the technical and financial capacity of the undertakings subject to certification, the contents of the declarations, certificates and documents presented by the persons to whom the certification is issued and compliance with the conditions relating to the personal situation of the candidate or tenderer does not fall within the scope of that provision, since that check is carried out under direct State supervision and is designed to facilitate the task of the contracting authorities in the field of public works contracts, its purpose being to allow those authorities to complete their tasks with exact and detailed knowledge of both the technical and financial capability of the tenderers.

   (see paras 51, 53, 54)

7.  National legislation which imposes on companies classified as attestation organisations a scheme of minimum tariffs for certification services offered to undertakings seeking to participate in procedures for the award of public works contracts constitutes a restriction of the freedom of establishment within the meaning of Article 49 TFEU, but is suitable for attaining the objective of protecting the recipients of the services in question. It is for the referring court to determine whether, in the light of, inter alia, the method of calculating the minimum tariffs, particularly in the light of the number of categories of work for which the certificate is drawn up, that national legislation goes beyond what is necessary to attain that objective.

   (see para. 69, operative part)