Soa Nazionale Costruttori (Judgment of the Court) [2013] EUECJ C-327/12 (12 December 2013)

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(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)

REQUEST for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Italy), made by decision of 6 March 2012, received at the Court on 10 July 2012, in the proceedings

Autorità per la vigilanza sui contratti pubblici di lavori, servizi e forniture

composed of L. Bay Larsen, President of the Chamber, M. Safjan (Rapporteur), C.G. Fernlund, J. Malenovský and A. Prechal, Judges,

having regard to the written procedure and further to the hearing on 16 May 2013,

– SOA Nazionale Costruttori – Organismo di Attestazione SpA, by S. Cammareri and M. Condinanzi, avvocati,

– the Associazione nazionale Società Organismi di Attestazione (Unionsoa), by A. Cancrini, G.M. Di Paolo and A. Clarizia, avvocati,

– the Italian Government, by G. Palmieri, acting as Agent, and by L. D’Ascia, avvocato dello Stato,

– the European Commission, by L. Malferrari, I. Rogalski and R. Striani, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 5 September 2013

1 This request for a preliminary ruling concerns the interpretation of Articles 101 TFEU, 102 TFEU and 106 TFEU.

2 The request has been made in proceedings between the Ministero dello Sviluppo economico (Ministry of Economic Development) (‘the Ministero’) and the Autorità per la vigilanza sui contratti pubblici di lavori, servizi e forniture (Supervisory authority for public works, services and supply contracts) (‘the Autorità’), on the one hand, and the SOA Nazionale Costruttori – Organismo di Attestazione SpA (‘the SOA Nazionale Costruttori’), on the other, concerning the declaration, by the Ministero and the Autorità, that the legislative repeal of compulsory minimum tariffs relating to the pursuit of professional activities is not applicable to services offered by companies classified as attestation organisations (Società Organismi di Attestazione) (‘the SOAs’).

3 The first subparagraph of Article 52(1) 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 L 134, p. 114), provides:

‘Member States may introduce either official lists of approved contractors, suppliers or service providers or certification by certification bodies established in public or private law.’

4 Article 40 of Legislative Decree No 163 of 12 April 2006 establishing the Code on public works contracts, public service contracts and public supply contracts pursuant to Directives 2004/17/EC and 2004/18/EC (Ordinary Supplement to GURI No 100 of 2 May 2006) (‘the code’) provides:

‘(1) Persons carrying out public works in any capacity must be authorised and must ensure that their activities comply with the principles of quality, professionalism and good faith. To that end, the goods, processes, services and quality systems in the undertaking which are used by those persons shall be subject to certification in accordance with the legislation in force.

(2) The … regulation shall govern the single certification scheme for any persons carrying out, in any capacity, public works of an amount exceeding EUR 150 000, on the basis of the type and amount of the works. The … regulation also allows the categories of certification to be periodically revised and to provide for possible new categories.

(3) The certification scheme shall be implemented by certification bodies governed by private law, authorised for that purpose by the Autorità. The certification activity shall be carried out in compliance with the principle of independent judgment, by ensuring that there are no commercial or financial interests such as to lead to unimpartial or discriminatory behaviour. When performing certification activities in relation to persons carrying out public works, the SOAs shall perform a public law task … . In the event that they issue false certificates, Articles 476 and 479 of the Criminal Code shall apply. Before issuing certificates, the SOAs shall check that the applicant undertaking satisfies all the requisite conditions. The certification bodies shall certify that persons authorised:

(a) possess a certificate showing that their quality control system complies with European norms … and with the national legislation in force, issued by accredited bodies in accordance with European norms … . The accredited bodies shall register the certificate referred to in this paragraph for undertakings carrying out public works on the official list drawn up at the Italian accreditaion body …;

(b) satisfy the general, technical-organisational and economic-financial conditions provided for by the [European Union] provisions applicable to authorisation. The certificates issued by the works managers to undertakings carrying out public works form part of the technical-organisational conditions. …

(b) the rules and criteria for authorisation, and the possible lapse thereof, of certification bodies and the personal, organisational, financial and technical conditions to be satisfied by those bodies;

(c) the detailed arrangements for testifying that authorised persons possess a quality control system certified in accordance with paragraph 3(a), and that they satisfy the conditions referred to in paragraph 3(b), and the procedures available for checking those conditions annually in the light of data provided by their accounts;

(d) the general conditions … and the technical-organisational and economic-financial conditions referred to in paragraph 3(b), including measures concerning the extent and type of works …

(e) the criteria for setting tariffs applicable to the certification activities, provided always that minimum tariffs shall not be capable of being derogated from;

(f) the rules for checking authorisation; authorisation shall be for a period of five years, a check whether the general conditions and those relating to structural capacity, to be included in the regulation are satisfied, shall be undertaken before the end of the third year; the period of validity of the general and special categories subject to the review referred to in paragraph 2; the tariff for checking that the conditions are satisfied shall be proportionate to the certification tariff, but may not exceed three-fifths of the latter;

(fa) in the context of the respective competences, the detailed arrangements for ensuring coordinated supervision of the activities of the certification bodies, by having recourse to structures and resources already available for that purpose, without new or increased expenditure being charged to public finances;

(g) financial penalties and prohibitory sanctions, including the lapse of the authorisation, for irregularities and unlawful acts committed by the SOAs when issuing certificates and where the SOAs fail to act following a request for information and documents by the Autorità in the context of its supervisory tasks, in accordance with a criterion of proportionality and the audi alteram partem rule;

(ga) the financial penalties referred to in Article 6(11), and prohibitory sanctions, including the lapse of qualification certification, for economic operators which do not reply to requests for information and documents made by the Autorità in the exercise of its power of supervision of the authorisation system, or which provide false information or documents;

(h) the establishment, on a regional basis, of lists of persons having obtained the authorisation referred to in paragraph 3; those lists shall be drawn up and maintained by the Autorità, which shall ensure that they are publicised in the Observatoire.

(6) The regulation defines the specific economic-financial and technical-organisational conditions which must be satisfied by candidates for a public works concession who do not intend to carry out the works with their own business organisation.

9a The SOAs shall be responsible for maintaining the documents and measures used for the purpose of issuing of certificates, after the certification activities have ended. The SOAs shall also provide access to those documents and measures to the persons mentioned in the regulation, including in the event of suspension or lapse of the authorisation of the certification activities; in the event of infringement, the administrative financial penalties provided for in Article 6(11) shall apply. In any event, the SOAs shall remain bound to maintain the documents and measures referred to in the first sentence for a period of 10 years or during the period stated in the regulation … .

9b The SOAs shall inform the Autorità of the initiation of the procedure to check the requisite conditions relating to an undertaking and the result thereof. The SOAs shall declare the lapse of the approval certification where they establish that it was issued without the conditions laid down in the regulation having been satisfied or where those conditions are no longer satisfied; in the event of infringement, the Autorità shall declare that the authorisation for the SOA’s certification activities has lapsed.

9c Where a false declaration is made or false documents are presented for the purposes of the authorisation, the SOAs shall inform the Autorità thereof, which, where it considers that there exists fraudulent misrepresentation or gross negligence, having regard to the importance and seriousness of the matters covered by the false declaration or the presentation of the false documents, shall compile a computer record … with a view to excluding them from the tendering and subcontracting procedures, … for a period of one year, after which the registration shall be deleted and shall in any event no longer be effective’.

5 Decree-Law No 223 of 4 July 2006 laying down urgent measures for economic and social revival, the control and rationalisation of public expenditure, and providing for initiatives in relation to tax revenue and the combating of tax evasion (GURI No 153 of 4 July 2006, p. 4), converted into law, after amendment, by Law No 248 of 4 August 2006 (Ordinary Supplement to GURI No 186 of 11 August 2006) (‘Decree-Law No 223/2006’), repealed, in Article 2(1)(a) thereof, the provisions which laid down the obligation to apply fixed or minimum tariffs ‘with respect to the liberal professions or intellectual activities’.

6 Decree No 207 of the President of the Republic of 5 October 2010 on the enforcement and application of Legislative Decree No 163 (Ordinary Supplement to GURI No 288 of 10 December 2010) (‘Presidential Decree No 207/2010’), repealing Decree No 34 of the President of the Republic of 25 January 2000, provides in Article 60(2) to (4):

‘(2) Approval shall be obligatory for anyone carrying out public works granted by a works manager for an amount exceeding EUR 150 000.

(3) … the qualification certification issued in accordance with this title shall constitute a necessary and sufficient condition for the purposes of showing that the requisite requirements with respect to technical and financial capacity are satisfied for the purpose of the grant of public works contracts.

(4) Works managers may not require tenderers to show that they are qualified in accordance with rules, procedures and conditions different from those provided for in this chapter …’.

‘(1) The performance by the SOAs of qualification certification activities … shall be subject to authorisation by the Autorità.

(2) The SOAs shall submit an application for authorisation together with the following documents:

(a) the instrument of incorporation and the articles of association of the company;

(b) a list of shareholders and a declaration relating to possible situations of control or links between undertakings;

(d) a declaration by the legal representative, in accordance with the rules and forms provided for in Article 64(6), concerning the SOA, its administrators, legal representatives or technical directors and staff …;

(e) an extract from the judicial record of the administrators, legal representatives, technical directors and staff …;

(f) a document containing a description of the procedures which, in accordance with the provisions adopted by the Autorità, will be used for the certification activity;

(g) an insurance policy concluded with an insurance undertaking authorised to cover the risk linked to the obligation, for the cover of responsibilities deriving from the activity to be carried out, the maximum amount of which shall be at least six times the projected turnover.

(a) act with diligence, good faith and transparently, in accordance with the principles referred to in Article 2 of the code;

(b) obtain the necessary information from the persons to be approved and act in a way so as to secure adequate information;

(d) ensure and maintain the independence required by the provisions of the code and by this decree;

(e) have resources and procedures, including those relating to internal controls, suitable to ensure effectiveness and good faith;

(f) check the contents of the declarations, certificates and documents … presented by the persons to whom certification must be issued, and that the conditions referred to in Article 78 continue to be satisfied;

(g) issue qualification certification in accordance with the documents presented by the undertaking and checked in accordance with point (f).

(2) In the context of their assessment and checking of the authorisation, the SOAs shall obtain economic-financial data, such as accounts, and information concerning organisational changes and changes to the legal status of undertakings, inter alia from the database of the chamber of commerce, industry and crafts.

(3) For the purposes of carrying out their institutional tasks, the SOAs may not rely on services provided by third parties. In any event, the SOAs shall be responsible for all activities directly or indirectly performed in their name and on their account.

(4) All qualification certification and the renewal thereof, as well as all supplementary review or amendment activities, shall be subject to the payment of a price to be determined on the basis of the total amount and number of general or specialised contracts for which certification is sought, in accordance with the formulae set out in Annex C - Part I.As regards permanent consortia, the price chargeable by the SOAs for each activity shall be reduced by 50%; as regards undertakings which have obtained certification in procurement procedures related to classification II, the price of any activity carried out by the SOAs shall be reduced by 20%.

(5) The amounts established in accordance with paragraph 4 shall be deemed to be minimum prices for the service provided. The amount payable may not exceed twice the price established in accordance with the criteria laid down in paragraph 4. Any agreement to the contrary shall be void. The price must be paid in full before issue, review or amendment of the certification; a delay of less than six months shall be permitted where, at the time the certification is issued, an authorisation for a direct transfer of the total amount from a current bank account has been established and forwarded to the SOA.

(6) The SOAs shall send the certifications to the Autorità within 15 days of their being issued, in accordance with the procedure laid down in Article 8(7).

(7) The SOAs shall inform the Autorità, within 10 days, of the initiation of the procedure verifying that an undertaking satisfies the requisite conditions and the result thereof, in accordance with Article 40(9) of the Code’.

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

9 By memoranda of 20 September 2010, the Ministero and the Autorità declared Article 2 of Decree-Law No 223/2006 on the repeal of compulsory minimum tariffs relating to the pursuit of professional activities to be inapplicable to the services offered by the SOAs and decided not to give effect to SOA Nazionale Costruttori’s intention to offer undertakings discounts on the fees paid for the issue of the qualification certification.

10 SOA Nazionale Costruttori brought an action for annulment of those memoranda before the Tribunale amministrativo regionale per il Lazio.

11 By judgment of 1 June 2011, that court upheld the action brought by SOA Nazionale Costruttori.

12 The Ministero and the Autorità appealed against that judgment to the Consiglio di Stato.

13 According to the referring court, the reference, in Article 2(1)(a) of Decree-Law No 223/2006, to ‘intellectual’ activities cannot cover the activities of the SOAs, which are public attestation activities. Those activities consist in the issuing of qualification certification which is the necessary and sufficient condition for demonstrating that an undertaking satisfies the requirements relating to technical and financial capacity for the purposes of being entrusted with carrying out public works.

14 Furthermore, the activities of the SOAs are exclusive, since they may not carry out other activities, and are not independent since they are subject to the rules of law of and supervision by the Autorità.

15 Therefore, the referring court considers that the repeal of the minimum tariffs provided for by Decree-Law No 223/2006 cannot apply to the tariffs fixed for the SOAs’ attestation activities.

16 However, that court expresses doubts with respect to the compatibility of the relevant national provisions concerning the SOAs’ attestation activities with European Union legislation.

17 In particular, it raises the issue of whether, in the light of the provisions of the TFEU concerning competition and freedom of establishment, the SOAs participate in the exercise of public powers and whether the national legislation relating to the minimum tariffs at issue is compatible with those provisions.

18 In those circumstances, the Consiglio di Stato decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Do the principles of [European Union] competition law and Articles 101 [TFEU], 102 [TFEU] and 106 [TFEU] preclude the application of the tariffs laid down by [Presidential Decree No 34 of 25 January 2000 and by Presidential Decree No 207/2010 to] the attestation activities carried out by [the SOAs]?’

19 The Associazione nazionale Società Organismi di Attestazione (‘the Unionsoa’) contends that the request for a preliminary ruling is inadmissible on the ground that it is irrelevant to the outcome of the main proceedings, since the referring court has already declared that the national legislation on the SOAs’ tariffs is justified.

20 It must be borne in mind in that regard that, according to the Court’s settled case-law, questions on the interpretation of European Union law referred by a national court in the factual and legislative context which that court is responsible for defining enjoy a presumption of relevance (see Case C-651/11 X [2013] ECR I-0000, paragraph 20 and the case-law cited).

21 The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see X, paragraph 21 and the case-law cited).

22 In the present case, however, it is not manifestly clear from the case-file submitted to the Court that the interpretation of European Union law sought by the referring court bears no relation to the purpose of the action, or that the problem raised by that court is hypothetical.

23 The referring court, which is ruling on an application for variation of the judgment of the Tribunale amministrativo regionale per il Lazio, to the effect that it was possible to derogate from the minimum tariffs for the attestation activities carried out by the SOAs, considers that the outcome of the action in the main proceedings depends on whether EU competition law precludes national legislation which imposes on the SOAs a scheme of minimum tariffs for the services they supply. Therefore, the referring court has not yet definitively carried out the assessment of the national legislation relating to those tariffs.

24 In those circumstances the question put by the Consiglio di Stato must be answered.

25 By its question, the referring court asks, in essence, whether the provisions of the Treaty concerning competition and freedom of establishment must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which imposes on SOAs a scheme of compulsory minimum tariffs for certification services supplied to undertakings seeking to participate in procedures for the award of public works contracts.

26 In order to answer that question, it is necessary, in the first place, to determine whether SOAs constitute, in the context of their certification activities, ‘undertakings’ within the meaning of Articles 101 TFEU, 102 TFEU and 106 TFEU.

27 In that regard, it follows from the Court’s settled case-law that, for the purposes of the application of European Union competition law, an undertaking encompasses every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed (see Case C-41/90 Höfner and Elser [1991] ECR I-1979, paragraph 21). Any activity consisting in offering goods and services on a given market is an economic activity (see Case C-475/99 Ambulanz Glöckner [2001] ECR I-8089, paragraph 19). By contrast, activities which fall within the exercise of public powers are not of an economic nature justifying the application of the Treaty rules of competition (see Case C-138/11 Compass-Datenbank [2012] ECR I-0000, paragraph 36).

28 In this case, the Italian legislature introduced, in accordance with Article 52(1) of Directive 2004/18, a certification scheme to be carried out by private bodies, namely SOAs. The latter are commercial undertakings entrusted with supplying certification services, the receipt of an appropriate certificate being a necessary condition in order for interested persons to participate in public works contracts in accordance with national legislation.

29 However, SOAs’ activities have an economic character. They issue certificates in return for remuneration and exclusively on the basis of actual market demand. Furthermore, they assume the financial risks involved in the exercise of that activity (see, to that effect, Case C-35/96 Commission v Italy [1998] ECR I-3851, paragraph 37).

30 The national legislation provides, inter alia, that the SOAs are to check 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.

31 In the context of that check, SOAs are required to send the relevant information to the Autorità, which is to review the lawfulness of the certification activities, with penalties capable of being imposed on companies in the event of an infringement of their obligations under the national legislation in force.

32 In contrast to the situation which was at issue in Case C-113/07 P SELEX Sistemi Integrati v Commission [2009] ECR I-2207, paragraph 76, SOAs do not perform standardisation tasks. Those undertakings do not have any power to make decisions connected with the exercise of public powers.

33 As is apparent from the file in the present case, the undertakings carrying out certification activities, namely SOAs, operate, as the Advocate General pointed out in point 57 of his Opinion, in conditions of competition.

34 Undertakings seeking to participate in procedures for the award of public works contracts are not legally obliged to use the certification services of a specific SOA.

35 In those circumstances, it should be held that, in the same way as the Court found that a motor vehicle manufacturer constituted an undertaking in so far as it operated on the market for certification of motor vehicles by issuing certificates of conformity necessary for their registration (Case 226/84 British Leyland v Commission [1986] ECR 3263), SOAs must be considered, in the context of their certification activities, as ‘undertakings’ within the meaning of Articles 101 TFEU, 102 TFEU and 106 TFEU.

36 It is necessary, in the second place, to determine whether Articles 101 TFEU and 102 TFEU are applicable in a situation such as that at issue in the main proceedings, in which the rules relating to minimum tariffs for certification services are established by the State.

37 In that regard, it should be noted, as is apparent from the Court’s settled case-law, that, although it is true that Articles 101 TFEU and 102 TFEU are concerned solely with the conduct of undertakings and not with laws or regulations emanating from Member States, those articles, read in conjunction with Article 4(3) TEU, which lays down a duty of cooperation between the European Union and the Member States, none the less require the latter not to introduce or maintain in force measures, even of a legislative or regulatory nature, which may render ineffective the competition rules applicable to undertakings (see Joined Cases C-94/04 and C-202/94 Cipolla and Others [2006] ECR I-11421, paragraph 46, and Case C-393/08 Sbarigia [2010] ECR I-6337, paragraph 31).

38 Articles 101 TFEU or 102 TFEU, read in conjunction with Article 4(3) TEU, are infringed where a Member State requires or encourages the adoption of agreements, decisions or concerted practices contrary to Article 101 TFEU or reinforces their effects, or where it divests 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 (see, to that effect, Cipolla and Others, paragraph 47).

39 There is nothing in the file before the Court which allows the finding that the national legislation at issue in the main proceedings would have such effects. Furthermore, it is clear that the Member State in question has not delegated to private economic operators responsibility for taking decisions affecting the economic sphere.

40 In those circumstances, it is necessary to consider, in the third place, whether Article 106 TFEU applies to this case, since paragraph 1 thereof prohibits Member States, in the case of undertakings to which they grant special or exclusive rights, from either enacting or maintaining in force any measure contrary to the rules of the Treaties, in particular, those provided for in Articles 101 TFEU and 102 TFEU.

41 A State measure may be regarded as granting a special or exclusive right within the meaning of Article 106(1) TFEU where it confers protection on a limited number of undertakings and which may substantially affect the ability of other undertakings to exercise the economic activity in question in the same geographical area under substantially equivalent conditions (see Ambulanz Glöckner, paragraph 24).

42 In this case, the fact that all SOAs, and only SOAs, have been entrusted with certification tasks cannot be considered as granting special or exclusive rights to the latter. All SOAs 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. Furthermore, it appears that the authorisation to create new SOAs is not restricted to a limited number of bodies, but is granted to anybody satisfying the conditions referred to in paragraph 7 of the present judgment.

43 Therefore, SOAs cannot be considered to be undertakings to which the Member State concerned has granted special or exclusive rights within the meaning of Article 106(1) TFEU.

44 Having regard to the foregoing considerations, it must be held that Articles 101 TFEU, 102 TFEU and 106 TFEU must be interpreted as meaning that they do not preclude national legislation, such as that at issue in the main proceedings, which imposes on SOAs a scheme of compulsory minimum tariffs for certification services supplied to undertakings seeking to participate in procedures for the award of public works contracts.

45 It should be noted that Article 49 TFEU precludes restrictions on the freedom of establishment. That provision prohibits any national measure which is liable to hinder or render less attractive the exercise by European Union nationals of the freedom of establishment guaranteed by the Treaty. The concept of restriction covers measures taken by a Member State which, although applicable without distinction, affect access to the market for undertakings from other Member States and thereby hinder intra-Community trade (see Case C-518/06 Commission v Italy [2009] ECR I-3491, paragraphs 63 and 64, and Case C-577/11 DKV Belgium [2013] ECR I-0000, paragraphs 31 to 33).

46 In this case, according the documents submitted to the Court, all the facts in the main proceedings are confined within a single Member State, namely the Italian Republic. As a preliminary point, it is therefore necessary to ascertain whether the Court has jurisdiction in the present case to give a ruling on the provision of the Treaty relating to the freedom of establishment, namely Article 49 TFEU (Case C-384/08 Attanasio Group [2010] ECR I-2055, paragraph 22).

47 National legislation, such as that at issue in the main proceedings which applies to Italian nationals and to nationals of other Member States alike is, generally, capable of falling within the scope of the provisions on the fundamental freedoms established by the Treaty only to the extent that it applies to situations connected with intra-Community trade (see Attanasio Group, paragraph 23 and the case-law cited).

48 However, in the present case, it is far from inconceivable that undertakings established in Member States other than the Italian Republic have been or are interested in carrying out certification activities in that Member State (see, to that effect, Attanasio Group, paragraph 24).

49 Furthermore, even in a situation in which all the facts are confined within a single Member State, an answer may nevertheless be useful to the referring court, in particular where national legislation requires it to grant a national the same rights as those which a national of another Member State would derive from European Union law in the same situation (see Joined Cases C-570/07 and C-571/07 Blanco Pérez and Chao Gómez [2010] ECR I-4629, paragraph 39).

50 As regards Article 51 TFEU, in accordance with which activities based on the exercise of official authority are excepted from the application of the provisions of the Treaty in the field of freedom of establishment, it should be noted that that exception does not apply to the main proceedings.

51 That exception is restricted to activities which in themselves are directly and specifically connected with the exercise of official authority (Case C-47/08 Commission v Belgium [2011] ECR I-4105, paragraph 85 and the case-law cited).

52 In the light of the considerations referred to in paragraphs 28 to 35 of the present judgment, it cannot be held that SOAs’ attestation activities are directly and specifically connected with the exercise of official authority.

53 As the Advocate General observed in points 47 and 48 of his Opinion, 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 the exception provided for in Article 51 TFEU (see, by analogy, Case C-438/08 Commission v Portugal [2009] ECR I-10219, paragraphs 41 and 45). 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 (see Case C-404/05 Commission v Germany [2007] ECR I-10239, paragraph 44).

54 In this case, the check, by SOAs, 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, cannot be considered as an activity within the scope of the decision-making independence in the exercise of public authority powers. That check is regulated entirely by national legislation. Furthermore, it 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.

55 Therefore, it is necessary to assess the national legislation at issue in the main proceedings in the light of Article 49 TFEU.

56 The national rules contested in the main proceedings prohibit undertakings supplying certification services from derogating from the minimum tariffs provided for by Italian law. As the Advocate General stated in point 51 of his Opinion, those rules are liable to make it less attractive for undertakings established in Member States other than the Italian Republic to exercise the freedom of establishment on the market for those services.

57 That prohibition deprives undertakings established in a Member State other than the Italian Republic and fulfilling the conditions provided for by the Italian legislation of the possibility, by requesting fees lower than those set by the Italian legislature, of competing more effectively with undertakings established on a stable basis in the Member State concerned and who therefore have greater opportunities for winning customers than undertakings established in another Member State (see, by analogy, Case C-442/02 CaixaBank France [2004] ECR I-8961, paragraph 13, and Cipolla and Others, paragraph 59).

58 In those circumstances, national legislation, such as that at issue in the main proceedings, must be held to constitute a restriction on the freedom of establishment.

59 A restriction on the freedom of establishment may be justified where it serves overriding requirements relating to the public interest, is suitable for securing the attainment of the objective which it pursues and does not go beyond what is necessary in order to attain it (see DKV Belgium, paragraph 38).

60 Unionsoa and the Italian Government consider that the national legislation at issue in the main proceedings seeks to ensure the independence of SOAs and the quality of the certification services which they supply. Competition between SOAs at the level of tariffs negotiated with their customers and the possibility of fixing those tariffs at a very low level would risk compromising their independence with respect to those customers and having a negative impact on the quality of the certification services.

61 In that regard, it must be observed that the public interest in the protection of recipients of services can justify a restriction on the freedom of establishment (see Case C-451/03 Servizi Ausiliari Dottori Commercialisti [2006] ECR I-2941, paragraph 38).

62 In this case, first, SOAs are entrusted with certification of undertakings, receipt of an appropriate certificate being a necessary condition in order for the undertakings concerned to participate in public works contracts. In that context, the Italian legislation seeks to ensure the lack of any commercial or financial interest such as to result in unimpartial or discriminatory behaviour on the part of SOAs with regard to those undertakings.

63 Secondly, as is apparent from the order for reference, SOAs may only carry out certification activities. Moreover, they are required, in accordance with national legislation, to have resources and procedures suitable for ensuring that their services are carried out effectively and in good faith.

64 It is with a view to protecting the recipients of the services that the independence of SOAs vis-à-vis the specific interests of their customers is particularly important. A certain restriction of the possibility to negotiate the prices of services with those customers is likely to strengthen their independence.

65 In those circumstances, it must be held, as the Advocate General essentially stated in point 58 of his Opinion, that the setting of minimum tariffs for the supply of such services is intended, in principle, to ensure the quality of those services and it is suitable for attaining the objective of protecting the recipients of those services.

66 In that regard, it is necessary, however, to point out that the national scheme at issue in the main proceedings in relation to tariffs and, in particular, the method of calculating minimum tariffs, must be proportionate in the light of the attaining the objective referred to in the paragraph above.

67 In the present case, the Italian legislation provides that all qualification certification and the renewal thereof, as well as all supplementary review or amendment activities, shall be subject to the payment of a minimum tariff to be determined on the basis of the total amount and number of general or specialised contracts for which certification is sought.

68 It is for the referring court to determine whether that legislation goes beyond what is necessary to attain the objective referred to in paragraph 65 of the present judgment. To that end, it must take account, inter alia, of 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.

69 In view of the above, it must be held that national legislation, such as that at issue in the main proceedings, which imposes on SOAs 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 that such legislation is suitable for attaining the objective of protecting the recipients of those services. 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.

70 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.

Articles 101 TFEU, 102 TFEU and 106 TFEU must be interpreted as meaning that they do not preclude national legislation, such as that at issue in the main proceedings, which imposes on companies classified as attestation organisations (Società Organismi di Attestazione) a scheme of minimum tariffs for certification services offered to undertakings seeking to participate in procedures for the award of public works contracts.

Such national legislation 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.

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Soa Nazionale Costruttori (Judgment of the Court) [2013] EUECJ C-327/12 (12 December 2013) URL: http://www.bailii.org/eu/cases/EUECJ/2013/C32712.html Cite as: ECLI:EU:C:2013:827, [2013] EUECJ C-327/12, [2014] PTSR D10, EU:C:2013:827

Court of Justice of the European Communities (including Court of First Instance Decisions)