CJEU, 9th chamber, November 10, 2016, No C-199/15

THE COURT (Ninth Chamber),

1 This request for a preliminary ruling concerns the interpretation of Article 45 of 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 L 134, p. 114), and Articles 49 and 56 TFEU.

2 The request has been made in proceedings between the consortium Ciclat Soc. coop. ('Ciclat'), on the one hand, and Consip SpA and the Autorità per la vigilanza sui contratti pubblici di lavori, servizi e forniture (Supervisory Authority for public works contracts, public supply contracts and public service contracts), on the other hand, concerning a procedure for the award of contracts for cleaning and other services for maintaining the buildings, educational establishments and training centres of the public authorities.

Legal context

EU law

3 Recital 2 of Directive 2004/18 states:

'The award of contracts concluded in the Member States on behalf of the State, regional or local authorities and other bodies governed by public law entities, is subject to the respect of the principles of the Treaty and in particular to the principle of freedom of movement of goods, the principle of freedom of establishment and the principle of freedom to provide services and to the principles deriving therefrom, such as the principle of equal treatment, the principle of non-discrimination, the principle of mutual recognition, the principle of proportionality and the principle of transparency. However, for public contracts above a certain value, it is advisable to draw up provisions of Community coordination of national procedures for the award of such contracts which are based on these principles so as to ensure the effects of them and to guarantee the opening-up of public procurement to competition. These coordinating provisions should therefore be interpreted in accordance with both the aforementioned rules and principles and other rules of the Treaty.'

4 Article 45 of Directive 2004/18 concerns the criteria for qualitative selection relating to the personal situation of the candidate or tenderer. Article 45(2) and (3) thereof provides:

'(2) Any economic operator may be excluded from participation in a contract where that economic operator:

(e) has not fulfilled obligations relating to the payment of social security contributions in accordance with the legal provisions of the country in which he is established or with those of the country of the contracting authority;

Member States shall specify, in accordance with their national law and having regard for Community law, the implementing conditions for this paragraph.

(3) Contracting authorities shall accept the following as sufficient evidence that none of the cases specified in paragraphs 1 or 2(a), (b), (c), (e) or (f) applies to the economic operator:

(a)

(b) as regards paragraph 2(e) and (f), a certificate issued by the competent authority in the Member State concerned.

5 Under Article 51 of Directive 2004/18:

'The contracting authority may invite economic operators to supplement or clarify the certificates and documents submitted pursuant to Articles 45 to 50.'

6 Article 93 of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18 (OJ 2014 L 94, p. 65) states:

'This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.'

Italian law

7 The decreto legislative n. 163 - Codice dei contratti pubblici relativi a lavori, servizi e forniture in attuazione delle direttive 2004/17/CE e 2004/18/CE (Legislative Decree No 163 establishing the Code on public works contracts, public service contracts and public supply contracts pursuant to Directives 2004/17/EC and 2004/18/EC) of 12 April 2006 (Ordinary Supplement to GURI No 100 of 2 May 2006), as amended by Decree-Law No 70 of 13 May 2011 (GURI No 110 of 13 May 2011, p. 1), converted into law by Law No 106 of 12 July 2011 (GURI No 160 of 12 July 2011, p. 1) ('Legislative Decree No 163/2006'), governs, in their entirety, the procedures in Italy for the award of public works contracts, public service contracts and public supply contracts.

8 Legislative Decree No 163/2006 contains, in Part II thereof, Article 38, which lays down the general requirements for participation in procedures for the award of concessions and contracts for works, supplies and services. Article 38(1)(i) of that decree provides:

'(1) Persons shall be excluded from participation in procedures for the award of concessions and contracts for works, supplies and services, cannot be awarded subcontracts and cannot enter into related contracts, if:

(i) they have committed serious infringements, definitively established, of the rules governing the payment of social security contributions, under Italian law or that of the State in which they are established'.

9 According to Article 38(2), (4) and (5) of Legislative Decree No 163/2006:

'(2) The candidate or tenderer shall certify that he satisfies the relevant requirements by producing a sworn statement, in accordance with the conditions laid down in the consolidated statutory and regulatory provisions relating to administrative documents, as required by Decree No 445 of the President of the Republic of 28 December 2000, and shall set out in that statement all his previous convictions, including those which have not been entered in the judicial record.

... For the purposes of Article 38(1)(i) of the decree, failures are to be regarded as serious if they preclude the issue of a social security contributions payment certificate [documento unico di regolarità contributiva]] ...

(4) For the purposes of checks relating to the grounds of exclusion referred to in the present article, the contracting authorities request, as the case may be, the candidates or tenderers not established in Italy to submit the supporting documents required and may, in addition, request the cooperation of the competent authorities.

(5) Where the Member State of the European Union concerned does not issue such documents or certificates, they may be replaced by a declaration on oath or, in Member States where there is no provision for declarations on oath, by a solemn declaration made by the person concerned before a judicial or administrative authority, a notary or a competent professional or trade body, in the country of origin or in the country whence that person comes'.

10 The infringements which preclude the issue of a social security contributions payment certificate (the 'DURC') are identified by the decreto del ministero del lavoro e della previdenza sociale - che disciplina il documento unico di regolarità contributiva (Decree of the Ministry of Labour and Social Security governing the social security contributions payment certificate) of 24 October 2007 (GURI No 279 of 30 November 2007, p. 11).

11 Article 8(3) of that ministerial decree provides:

'For the sole purposes of participation in the tender procedure, a non-serious difference between the sums owed and those paid with regard to each social security institution and each construction fund shall not preclude the issue of a DURC. A difference equal to or less than 5% between the sums owed and those paid in respect of each payment or contribution period or, in any event, a difference less than EUR 100, shall not be regarded as serious, without prejudice to the obligation to pay that amount within 30 days of the DURC being issued.'

12 The DURC which is issued to the undertaking is valid for a period of three months.

13 According to Article 7(3) of that ministerial decree, it is also laid down that, in the event of a failure to comply with the conditions for regularity with regard to social contributions, the relevant bodies 'request the party concerned to correct its situation within 15 days'. The national case-law has however made clear that the above request does not apply where the DURC is requested by the contracting authority.

The dispute in the main proceedings and the question referred for a preliminary ruling

14 By notice published in the Official Journal of the European Union on 14 July 2012, Consip launched a tender procedure for the award of a contract for cleaning and other services for maintaining the decorative and technical elements of the buildings, all types and levels of educational establishments and training centres of the public authorities. It was possible to participate in the tender procedure for that contract, divided into 13 lots, by submitting independent tenders. It is apparent from the file sent to the Court that the deadline for submitting tenders was 26 September 2012.

15 The notice expressly required each tenderer to declare, on pain of exclusion, that it satisfied the general requirements for participation in the tender procedure laid down in Article 38 of Legislative Decree No 163/2006.

16 Ciclat, a consortium created by workers' production cooperatives, submitted a tender in relation to lot No 7, the basic amount of which for the tender procedure was EUR 91 200 000, and lot No 12, the basic amount of which for the tender procedure was EUR 89 800 000, by providing, in the first case, a provisional deposit of EUR 912 000 in relation to lot No 7 and of EUR 898 000 in relation to lot No 12.

17 Since Ciclat is a consortium, it indicated in its tender the cooperatives that would carry out the work if it were to be awarded the contract, and among them it referred in particular to Ancora Soc. coop. On 10 September 2012, the latter declared, referring to the relevant passage of Article 38 of Legislative Decree No 163/2006, that it 'had not committed any serious infringements or definitively established infringements of the rules regarding social security and welfare contributions such as would prevent the issue of a DURC ... .'

18 On completion of the tender procedure, Ciclat was placed top of the provisional list for lot No 7, and second for lot No 12.

19 On 12 June 2013, in response to Consip's request in the context of verifications, the Istituto nazionale per l'assicurazione contro gli infortuni sul lavoro (INAIL) issued a certificate in which it concluded that, at the time of its declaration on 10 September 2012, Ancora had failed to pay social security contributions, in relation to the payment of insurance premiums, that company having failed to pay the third instalment of those premiums in the context of the reverse charge scheme expiring on 16 August 2012, amounting to EUR 33 148.28. That third instalment was paid with the fourth and final instalment on 5 December 2012, that is to say before those verifications were carried out and before the result of the tender procedure was known.

20 Since Consip subsequently decided to exclude Ciclat from the tender procedure, the latter brought proceedings before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court of Lazio, Italy) against that exclusion and against the subsequent measures to enforce provisional deposits. That court dismissed the action.

21 Ciclat appealed against that decision before the referring court. It contended that the failure to pay, within the time-limit set, one of the tranches of a self-assessed premium cannot be classified as a 'serious and definitively established infringement', in the light, in particular, of the spontaneous payment of the contribution with the fourth and final tranche. It also stated that INAIL failed to fulfil its obligation to inform it of irregularities in accordance with Article 7 of the Ministerial Decree of 24 October 2007, in so far as that obligation applies also in the event of a request made by the DURC office on its own initiative during the verification decided by the contracting authority.

22 The Consiglio di Stato (State Council, Italy) has doubts concerning the validity of the Italian rules at issue. It considers that they could be contrary to EU law, in particular to Article 45 of Directive 2004/18 and Articles 49 and 56 TFEU.

23 In those circumstances, the Consiglio di Stato (State Council) decided to stay its proceedings and to refer the following question to the Court for a preliminary ruling:

'Do Article 45 of Directive 18/2004, read also in the light of the principle of reasonableness, and Articles 49 and 56 TFEU preclude national legislation which, in relation to a threshold-based procurement procedure, allows a request to be made by the contracting authority on its own initiative for the certificate issued by the social security institutions ('DURC') and obliges that authority to exclude the tenderer if the certificate discloses an earlier failure to pay contributions, in particular one existing at the time of participation but not known to that operator, which took part on the strength of a positive currently valid DURC, but that infringement in any case no longer exists at the time of the award or of the verification carried out on the contracting authority's own initiative?'

The question referred for a preliminary ruling

24 By its question, the referring court asks, in essence, whether Article 45 of Directive 2004/18 and Articles 49 and 56 TFEU must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which obliges a contracting authority to consider an infringement relating to the payment of social security contributions, recorded in a certificate requested by a contracting authority on its own initiative and issued by the social security institutions to be a ground for exclusion, where that infringement existed on the date of the participation in a tender procedure, even if it no longer existed on the date of the award or of the verification carried out on the contracting authority's own initiative.

25 First of all, it should be noted that, as is apparent from the order for reference, Directive 2004/18 is applicable to the facts at issue in the main proceedings. In addition, it should be pointed out that the provisions of that directive must, in accordance with recital 2 thereof, be interpreted in accordance with the principles of freedom of establishment and freedom to provide services as well as with those deriving therefrom. It is, therefore, not necessary to examine separately the national legislation at issue in the main proceedings in the light of Articles 49 and 56 TFEU.

26 Moreover, it should be noted that Directive 2014/24, referred to in the order for reference, had still not entered into force at the time of the facts at issue in the main proceedings, as is apparent from Article 93 of that directive and it is therefore not applicable ratione temporis.

27 In the first place, it is necessary to examine whether Article 45 of Directive 2004/18 precludes national legislation, such as that at issue in the main proceedings, which considers an infringement relating to the payment of social security contributions which existed on the date of the participation in a tender procedure to be a ground for exclusion, although the amount of the contributions was put in order before the award or the verification carried by the contracting authority on its own initiative.

28 In that regard, it should be noted, first, that Article 45(2) of Directive 2004/18 leaves it to the Member States to determine the period within which the persons concerned must comply with their obligations relating to the payment of social security contributions and may make subsequent regularisations, on condition that that period respects the principles of transparency and equal treatment (see, to that effect, judgment of 9 February 2006, La Cascina and Others, C 226/04 and C 228/04, EU:C:2006:94, paragraphs 31 and 32).

29 Secondly, although a contracting authority may request the correction or amplification of data relating to an offer, such corrections or additions may relate only to data which can be objectively shown to pre-date the deadline for applying to take part in the tendering procedure concerned and may not relate to information which must be communicated, failing which the tender will be excluded (see, to that effect, judgment of 10 October 2013, Manova, C 336/12, EU:C:2013:647, paragraphs 39 and 40).

30 Furthermore, Article 51 of Directive 2004/18, which provides that the contracting authority may invite operators to supplement or clarify the certificates and documents submitted pursuant to Articles 45 to 50 of that directive, cannot be interpreted as permitting that authority to accept any rectification of omissions which, as expressly provided for in the contract documentation, must result in the exclusion of the tenderer (see, to that effect, judgment of 6 November 2014, Cartiera dell'Adda, C 42/13, EU:C:2014:2345, paragraph 46).

31 It follows that Article 45 of Directive 2004/18 does not preclude national legislation, such as that at issue in the main proceedings, which holds an infringement relating to social security contributions which existed on the date of the participation in a tendering procedure to be a ground for exclusion, although the amount of the contributions was put in order before the award or the verification carried by the contracting authority on its own initiative.

32 It is necessary to determine whether that conclusion applies also where national legislation, such as that at issue in the main proceedings, provides that the question whether an economic operator is in compliance with its obligations relating to the payment of social security contributions on the date of its participation in a tendering procedure, is determined by a certificate issued by the social security institutions and requested by the contracting authority on its own initiative. The referring court notes, in that regard, that the social security institutions are not obliged, under Article 7(3) of the ministerial decree of 24 October 2007, to warn the economic operator concerned of the irregularity prior to issuing such a certificate.

33 It should be noted, first, that Article 45(2)(e) of Directive 2004/18 allows Member States to exclude any economic operator from participation in a public contract, where that operator fails to fulfil his obligations relating to the payment of social security contributions. Moreover, under Article 45(3) of Directive 2004/18, the contracting authorities accept as sufficient evidence that the economic operator is not in the situation referred to in Article 45(2)(e), a certificate issued by the competent authority in the Member State concerned and from which it is apparent that those requirements are satisfied. It in no way follows from the wording of those provisions that the competent authorities are prohibited from requesting the certificate required from the social security institutions on their own initiative.

34 Secondly, it is of little consequence if an economic operator has not been warned of such an irregularity as long as he has the possibility to verify, at any time, the regularity of his situation with the competent authorities. If that is indeed the case, which it is for the national court to determine, an economic operator may not rely on a certificate issued by the social security institutions obtained before his tender was submitted and certifying that he complied with his obligations relating to the payment of social security contributions during a period before that tender was submitted, while being aware, as the case may be, after making enquiries with the competent authorities, that he no longer complies with such obligations on the date his tender was submitted.

35 In the second place, it is necessary to examine whether Article 45 of Directive 2004/18 precludes national legislation, such as that at issue in the main proceedings, which obliges the contracting authorities to consider an infringement relating to the payment of social security contributions, recorded in a certificate requested by a contracting authority on its own initiative and issued by the social security institutions, where that infringement existed on the date of the participation in a tender procedure, to be a ground for exclusion, thereby entirely excluding the contracting authorities' discretion.

36 It should be noted that Article 45(2) of Directive 2004/18 does not provide for uniform application at EU level of the grounds of exclusion it mentions, since the Member States may choose not to apply those grounds of exclusion at all or to incorporate them into national law with varying degrees of rigour according to legal, economic or social considerations prevailing at national level (judgment of 10 July 2014, Consorzio Stabile Libor Lavori Pubblici, C 358/12, EU:C:2014:2063, paragraph 36 and the case-law cited). That provision does not therefore oblige the Member States to grant the contracting authority freedom of appreciation in that regard.

37 It follows that Article 45 of Directive 2004/18 does not preclude national legislation, such as that at issue in the main proceedings, which obliges the contracting authorities to consider an infringement relating to the payment of social security contributions, recorded in a certificate requested by a contracting authority on its own initiative and issued by the social security institutions, where that infringement existed on the date of the participation in a tender procedure, to be a ground for exclusion, thereby entirely excluding the contracting authorities' discretion.

38 In the third and last place, it is necessary to examine the referring court's questions concerning whether national legislation, such as that at issue in the main proceedings, introduces discrimination between undertakings established in Italy and those established in other Member States. In that context, the referring court notes that, for the latter, Article 38(4) and (5) of Legislative Decree No 163/2006 provides that the contracting authority must request those undertakings to supply themselves the supporting documents required and that, if the Member State concerned fails to issue that type of document or certificate, a sworn declaration or a solemn declaration is regarded as sufficient proof.

39 In that regard, it should be noted that it is not apparent from the order for reference that undertakings established in other Member States submitted tenders in the main proceedings. It follows that the question whether national legislation, such as that at issue in the main proceedings, introduces discrimination between undertakings established in Italy and those established in other Member States is irrelevant to the outcome of the dispute in the main proceedings.

40 In the light of the foregoing considerations, the answer to the question referred is that Article 45 of Directive 2004/18 must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which obliges a contracting authority to consider an infringement relating to the payment of social security contributions, recorded in a certificate requested by a contracting authority on its own initiative and issued by the social security institutions, to be a ground for exclusion, where that infringement existed on the date of the participation in a tender procedure, even if it no longer existed at the time of the award or of the verification carried out on the contracting authority's own initiative.

Costs

41 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Ninth Chamber) hereby rules:

Article 45 of 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 must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which obliges a contracting authority to consider an infringement relating to the payment of social security contributions, recorded in a certificate requested by a contracting authority on its own initiative and issued by the social security institutions, to be a ground for exclusion, where that infringement existed on the date of the participation in a tender procedure, even if it no longer existed at the time of the award or of the verification carried out on the contracting authority's own initiative.