Exclusion of a temporary joint venture from a public-procurement procedure for having failed to lodge, with its tender, a declaration of acceptance of a legality protocol aimed at combating criminal activity: Impresa Edilux and SICEF (C-425/14)

Two Italian construction companies (‘imprese di costruzione’), ‘Edilux’ and ‘SICEF’, formed a temporary consortium (or joint venture) for the purposes of participating in a public works tender concerning the restoration of certain Greek temples, which had been built during the ancient-Greek colonisation in Sicily. The public works contract (Art. 1(2b) of Directive 2004/18/EC),1 of an estimated value €2,271,735 (sub-threshold contract), was initially awarded to the joint venture on 20 May 2013 by the contracting authority.2 However, a few weeks later, on 18 June 2013, the contracting authority annulled its initial decision and re-awarded the contract to ‘Icogen Srl’, a rival construction company, which had submitted a complaint following the award to the joint venture, since it had been placed second in the initial award procedure. The annulment of the initial award decision by the contracting authority was determined on the understanding that the joint venture had failed to lodge, with its tender, the declaration of acceptance of the legality-protocol clauses (‘dichiarazione di accettazione delle clausole contenute in un protocollo di legalità’). That protocol had to be submitted according to the scheme that was contained within Annex 6 to the tendering specifications for that tender; indeed, under the heading ‘Notice’ of those specifications, the candidates were informed that the corresponding declaration was an obligatory document to be submitted on pain of exclusion from the tendering procedure.3 Consequently, following the annulment decision, ‘Edilux’ and ‘SICEF’ brought an action to the ‘Tribunale amministrativo regionale per la Sicilia’ (Regional Administrative Court for Sicily), but to no avail. As a result, both parties submitted an appeal before the ‘Consiglio di Giustizia amministrativa per la Regione Siciliana’ (Council of Administrative Justice for the Region of Sicily), which requested from the CJEU a preliminary ruling under Article 267 TFEU4 with regards to the interpretation of Article 45 (Personal situation of the candidate or tenderer) of Directive 2004/18/EC.

John Kitsos
no 3
s. 133