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

Provisional text

JUDGMENT OF THE COURT (Tenth Chamber)

28 March 2019 (*)

(Reference for a preliminary ruling — Coordination of procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18/EC — Article 45(2), first subparagraph, point (b) — Personal situation of the candidate or tenderer — Possibility for the Member States to exclude from participation in a public contract any operator subject to a procedure for an arrangement with creditors — National legislation providing for the exclusion of persons subject to an ‘ongoing’ procedure for a declaration of admission to an arrangement with creditors, except where the insolvency plan provides for the continuation of the business — Operator having filed an application for an arrangement with creditors, reserving the possibility to submit a plan providing for the continuation of the business)

In Case C‑101/18,

REQUEST for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Council of State, Italy), made by decision of 11 January 2018, received at the Court on 12 February 2018, in the proceedings

Idi Srl

v

Agenzia Regionale Campana Difesa Suolo (Arcadis),

intervening parties:

Regione Campania,

THE COURT (Tenth Chamber),

composed of C. Lycourgos, President of the Chamber, E. Juhász (Rapporteur) and M. Ilešič, Judges,

Advocate General: E. Tanchev,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        Idi Srl, by L. Lentini, avvocato,

–        the Italian Government, by G. Palmieri, acting as Agent, and by V. Fedeli and C. Colelli, avvocati dello Stato,

–        the European Commission, by G. Gattinara and P. Ondrůšek and by L. Haasbeek, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of Article 45(2) 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).

2        The request has been made in proceedings between Idi Srl and the Agenzia Regionale Campana Difesa Suolo (Arcadis) (Regional Agency of Campania for Soil Protection, Italy) concerning the exclusion from the ad hoc consortium of undertakings (‘the Consortium’) of which Idi was the representative, from participating in a tendering procedure for a public services contract.

 Legal context

 European Union law

3        Article 45 of Directive 2004/18, headed ‘Personal situation of the candidate or tenderer’, provides in paragraph 2:

‘Any economic operator may be excluded from participation in a contract where that economic operator:

(a)      is bankrupt or is being wound up, where his affairs are being administered by the court, where he has entered into an arrangement with creditors, where he has suspended business activities or is in any analogous situation arising from a similar procedure under national laws and regulations;

(b)      is the subject of proceedings for a declaration of bankruptcy, for an order for compulsory winding up or administration by the court or of an arrangement with creditors or of any other similar proceedings under national laws and regulations;

…

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

4        Directive 2004/18 was repealed, with effect from 18 April 2016, by 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), which is not applicable to the dispute in the main proceedings.

5        Article 57 of Directive 2014/24, headed ‘Exclusions from the scope’, provides:

‘Contracting authorities may exclude or may be required by Member States to exclude from participation in a procurement procedure any economic operator in any of the following situations:

…

(b)      the economic operator is bankrupt, subject to insolvency or winding-up procedures, where its assets are being administered by a liquidator or by a court, where it is in an arrangement with creditors, where its business activities are suspended, or where it is in any analogous situation arising from a similar procedure provided for under national laws or regulations;

…’

 Italian law

6        Article 38(1) of Decreto legislativo 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 adopting the Code on public works contracts, public service contracts and public supply contracts and transposing Directives 2004/17/EC and 2004/18/EC) of 12 April 2006 (Ordinary Supplement to the GURI No 100 of 2 May 2006), in the version applicable to the facts in the main proceedings (‘the Public Procurement Code’) provides:

‘The following persons shall be excluded from participation in procedures for the award of concessions and public works contracts, supply contracts and service contracts and may not be awarded subcontracts or conclude any related contract:

(a)      persons against whom insolvency proceedings or compulsory liquidation proceedings have been opened or who are in an arrangement with creditors, except in a case under Article 186a of Royal Decree No 267 of 16 March 1942, or with respect to whom proceedings seeking a declaration of one of those situations is ongoing.

…’

7        Article 161 of the legge fallimentare (Bankruptcy Law), approved by Regio Decreto n. 267 (Royal Decree No 267) of 16 March 1942 (GURI No 81 of 6 April 1942; ‘Law on bankruptcy’), headed ‘Application for an arrangement with creditors’, provides:

‘1.      An application for admission to an arrangement with creditors shall be submitted in an application, signed by the debtor, filed at the court of the place where the undertaking has its head office; a relocation of the head office in the year prior to the application is irrelevant for the purpose of determining jurisdiction.

2.      The debtor shall attach the following documents to the application:

…

(e)      a plan that contains an analytical description of the detailed rules and deadlines for the implementation of the proposal; in any event, the application must specify and quantify in an economically measurable manner the benefit to which the person making the proposal guarantees each of the creditors.

…

6.      The entrepreneur may file the originating application, containing the application for an arrangement with creditors, together with the balance sheets for the last three financial years and a list of the names of the creditors, indicating their respective claims, and reserving the right to submit the proposal, the plan and the documents as provided for in paragraphs 2 and 3 of this Article, within a time limit of 60 to 120 days to be determined by the Court, which may be extended for no more than 60 days where the reasons are justified. ... By reasoned decision fixing the time limit pursuant to the first sentence, the court may appoint the insolvency administrator within the meaning of Article 163(2)(3). Article 170(2) shall apply …

7.      Upon filing of the originating application ... the debtor may, with the prior approval of the court, take urgent measures of extraordinary administration, whereby the court may obtain summary information and must obtain the opinion of a judicial auditor, if appointed. At the same time, and within the same time limit, the debtor may also take measures of ordinary administration. …’

8        Article 168 of the Law on bankruptcy, entitled ‘Effects of the lodgement of the action’, states:

‘1.      From the date of publication of the application in the Companies Register and up until the time when the decree approving the arrangement with creditors becomes final, creditors whose title or cause arose prior thereto shall not, on pain of nullity, start or pursue enforcement and precautionary actions on the assets of the debtor.

…

Creditors cannot acquire pre-emptive rights as against competing creditors, unless they are authorised by the court in the cases provided for in the previous article. Judicial mortgages registered in the 90 days prior to the date of publication of the action in the register of companies are ineffective with regard to creditors prior to the arrangement.’

9        Article 186bis of the Law on bankruptcy, entitled ‘Arrangements with creditors as a going concern’, provides:

‘1.      When the insolvency plan referred to in Article 161(2)(e) provides for the activity of the undertaking to be continued by the debtor, for the transfer of the continuing business, or for the continuing business to be assigned into one or more companies, including newly formed companies, the provisions of this article shall apply. The plan may also provide for the sale of assets that are not necessary for the operation of the undertaking.

…

4.      After the application has been submitted, participation in procedures for the award of public contracts must be authorised by the court, after hearing the opinion of the judicial auditor, if appointed; if no judicial auditor has been appointed, the court shall decide.

5.      Admission to an arrangement with creditors shall not prevent participation in procedures for the award of public contracts provided that the undertaking submits for the purpose of the call for tenders:

(a)      a report by an expert fulfilling the conditions set out in Article 67(3)(d) confirming that participation consistent with the plan and the contract could reasonably be performed;

(b)      a declaration by another operator fulfilling the general conditions relating to financial, technical and economic capacities, as well as certification required for the award of the contract, who has undertaken, in relation to the tenderer and the contracting authority, to make available, for the duration of the contract, the resources necessary to perform the contract, and to take over from the assisted undertaking if the latter becomes insolvent during the tender procedure or after the contract has been entered into, or is for any other reason no longer in a position properly to perform the contract. Article 49 of Legislative Decree No 163 of 12 April 2006 shall apply.

6.      Subject to the provisions of the previous paragraph, the undertaking that has entered into an arrangement with creditors may also participate in an ad hoc tendering consortium, provided it is not acting as principal and that the other undertakings forming the consortium are not subject to collective proceedings. In that circumstance, the declaration referred to in the fourth subparagraph under (b) may also be made by an operator belonging to the consortium.

…’

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

10      It is apparent from the file submitted to the Court that, by a notice of 24 July 2013, Arcadis launched a call for tenders for the award of a public services contract for project management, evaluation and accounting, assistance with inspection, as well as coordination of safety and health matters. The estimated value of this service contract was EUR 1 028 096.59.

11      On 14 October 2013, TEI Srl, as the principal of the consortium, submitted a request to participate in the call for tenders mentioned in the previous paragraph.

12      On 29 April 2014, the public services contract was provisionally awarded to the consortium.

13      On 18 June 2014, TEI filed an application with the Tribunale di Milano (District Court, Milan, Italy) seeking admission to an arrangement with creditors, reserving the right, pursuant to Article 161(6) of the Law on bankruptcy, to submit a plan for an arrangement as a going concern.

14      By decision notified on 9 December 2014 (‘the exclusion decision’), Arcadis excluded the Consortium from the public procurement procedure. In that regard, Arcadis based its decision on the fact that, in accordance with Article 38(1) of the Public Procurement Code, the filing of an application by a company for admission to an arrangement with creditors precludes its participation in a public tendering procedure, except if, as distinct from the present case, the debtor has submitted with the application a plan for an arrangement as a going concern (concordato in continuità aziendale).

15      By judgment of 29 April 2015, the Tribunale amministrativo regionale per la Campania (Regional Administrative Court, Campania, Italy) dismissed the application for annulment brought by Idi against the exclusion decision. That court held that the filing of an application for an arrangement with creditors by TEI amounted to an admission that it was in a crisis situation, which justified the exclusion of the Consortium from any participation in public procurement procedures.

16      Idi brought an appeal before the referring court, the Consiglio di Stato (Council of State, Italy).

17      That court observes that the exclusion decision is compatible with its case-law.

18      According to that case-law, an economic operator who has filed an application for an arrangement with creditors may participate in public procurement procedures only if it has been admitted to the arrangement with creditors as a going concern, provided for Article 186bis of the Law on bankruptcy, or if, having applied to be admitted to the latter procedure, it has been authorised by the competent court to participate in public procurement procedures.

19      On the other hand, according to that case-law, any operator whose application for an arrangement with creditors is not accompanied by a plan that expressly provides for the continuation of the business is excluded from public procurement procedures. In fact, in such a situation, called ‘blank arrangement’ (concordato in bianco), the absence of such a plan constitutes an admission by the operator of the economic difficulties it faces.

20      The referring court adds that the ‘blank arrangement’, which is a ‘contingent’ arrangement with creditors for the purpose of Article 161(6) of the Law on bankruptcy allows, on one hand, applications for bankruptcy filed by creditors to be temporarily ‘frozen’ (normally between 30 and 120 days) and, on the other hand, enables the applicant to choose either to submit an arrangement plan or to submit a corporate restructuring agreement, in order to postpone such a choice until the outcome of a renegotiation with the general body of creditors.

21      However, that court expresses doubts as to the compatibility of such case-law with Article 45(2), first subparagraph, points (a) and (b), of Directive 2004/18.

22      In that connection, it submits that, where the creditors request the opening of insolvency proceedings, such a procedure is regarded as being ‘open’ only once the competent court has declared the debtor to be insolvent. However, where an economic operator applies for a ‘blank arrangement’ the procedure is regarded as being ‘open’ from the time the application is lodged.

23      The referring court therefore asks whether Article 45(2), first subparagraph, points (a) and (b) of Directive 2004/18 must be interpreted as meaning that it covers the situation of an economic operator, such as that at issue in the main proceedings, which filed an for admission to the ‘blank arrangement’ procedure.

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

‘(1)      Is it compatible with Article 45(2)(a) and (b) of Directive 2004/18 … to regard a debtor that has merely made a request to the competent judicial body to enter into an arrangement with creditors as being “the subject of proceedings”?

(2)      Is it compatible with the abovementioned provision to regard a debtor’s declaration that it is in a state of insolvency and wishes to submit a preliminary request (the features of which are described above) to enter into an arrangement with creditors as grounds for excluding that debtor from a public tendering procedure, thereby interpreting broadly the term “the subject of proceedings” used in the provisions of [EU] law (Article 45 of [Directive 2004/18]) and of national law (Article 38 of [the Public Procurement Code]) cited above?’

 Admissibility of the questions referred for a preliminary ruling

25      The Italian Government questions the admissibility of the request for a preliminary ruling.

26      First of all, the Italian Government observes that, in the order for reference, the Consiglio di Stato (Council of State) merely referred to the content of its case-law concerning the effects of the application of ‘blank arrangements’ on the public procurement procedures and reproduced the provisions of Article 45(2), first subparagraph, points (a) and (b) of Directive 2004/18 without explaining why it has doubts about the conformity of the national legislation to Article 45.

27      The Italian Government further claims that the questions raised by the Consiglio di Stato (Council of State) are hypothetical. In this regard, it states that TEI’s participation in the public procurement procedure in the main proceedings was refused because the Tribunale di Milano (District Court, Milan), at which TEI had filed an application for an arrangement, had not authorised it to participate in the procedure for the award of that contract. That implies that ‘[the] cause of exclusion [from such a participation] exists regardless of … the date from which the collective procedure can be considered to be ongoing’.

28      In that regard, it should be borne in mind that, according to settled case-law of the Court, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling from a national court only where it is quite obvious that the interpretation of EU 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, which requires the national court to define the factual and legal context of the questions it is asking or, at the very least, to explain the factual circumstances on which those questions are based (judgments of 21 September 2016, Etablissements Fr. Colruyt, C‑221/15, EU:C:2016:704, paragraph 14, and of 31 May 2018, Zheng, C‑190/17, EU:C:2018:357, paragraph 48 and the case-law cited).

29      In the present case, and as the observations set out by the Italian Government regarding the answer to be given to the preliminary questions confirm, the factual and legal elements mentioned in the order for reference make it possible to understand why the national court has referred such a question to the Court.

30      Furthermore, as regards the alleged hypothetical nature of the questions referred, it must be stated that the legality of the exclusion decision at issue in the main proceedings necessarily depends on the answer to the question referred. By that question, the referring court asks whether Article 45(2), first subparagraph, points (a) and (b) of Directive 2004/18, which recognises that Member States have the right to exclude from participation in public procurement procedures operators in arrangements with creditors or which are the subject of an arrangement with creditors, covers the situation of a company that has filed an application seeking admission to the ‘blank arrangement’. It is clear from the information contained in the order for reference that the Consortium was excluded precisely because TEI was in such a situation.

31      It follows that the questions referred for a preliminary ruling are admissible.

 Consideration of the questions referred

32      As a preliminary point, it should be noted that, in the formulation of its questions, the referring court makes reference to Article 45(2) first subparagraph, point (a), and to Article 45(2), first subparagraph, point (b) of Directive 2004/18.

33      Since an economic operator may be excluded from public procurement procedures either on the basis of Article 45(2), first subparagraph, point (a), or Article 45(2), first subparagraph, point (b) of Directive 2004/18, it must be held that, having regard to the circumstances which characterise the case in the main proceedings, only the latter provision is relevant.

34      In those circumstances, by its two questions, which should be examined together, the referring court essentially asks whether Article 45(2), first subparagraph, point (b) of Directive 2004/18 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which allows for the exclusion from a public procurement procedure of an economic operator who, at the date of the exclusion decision, has filed an application for admission to an arrangement with creditors, while reserving the right to submit a plan that provides for the continuation of the business.

35      According to settled case-law, as regards public contracts falling within the scope of Directive 2004/18, Article 45(2) thereof leaves the application of the seven grounds for excluding candidates from participation in a contract, relating to their professional honesty, solvency and reliability, to the determination of the Member States, as evidenced by the phrase ‘may be excluded from participation in a contract’, which appears at the beginning of that provision (judgment of 14 December 2016, Connexxion Taxi Services, C‑171/15, EU:C:2016:948, paragraph 28).

36      More specifically, in order to guarantee the solvency of the party entering into the contract with the contracting authority, Article 45(2), first subparagraph, point (b), of that directive permits, allows for the exclusion from participation in a public contract of any economic operator who is the subject of an arrangement with creditors.

37      Under Article 45(2), second subparagraph, of that directive, the Member States are to specify, in accordance with their national law and having regard for EU law, the implementing conditions for that paragraph. It follows that the concepts in Article 45(2), first paragraph, including the expression ‘entered into an arrangement with creditors’ may be specified and explained in national law, provided that that is done with regard for EU law (see, to that effect, judgment of 4 May 2017, Esaprojekt, C‑387/14, EU:C:2017:338, paragraph 74 and the case-law cited).

38      In the present case, as is clear from the national legislation, and from Article 168 of the Law on bankruptcy in particular, one of the effects of filing an application for an arrangement with creditors is that creditors are prevented, for a period determined by the Law on bankruptcy, from bringing actions against the debtor’s estate and the applicant’s rights over its estate are limited, since from the time the application is lodged the applicant is unable to take extraordinary measures of administration with regard to its estate itself, that is without the authorisation of a court.

39      Therefore, filing of such an application produces legal effects on the rights and obligations of both the applicant and the creditors. That means that the filing of that application must be regarded, even before any decision by the competent judge, as the starting point of the arrangement with creditors referred to in Article 45(2), first paragraph, point (b) of Directive 2004/18 and, therefore, as the act initiating such procedure.

40      That finding is also justified by the applicant’s economic and financial situation. By filing such an application, the economic operator acknowledges that it is in a state of financial difficulty which may jeopardise its economic stability. As stated in paragraph 35 of the present judgment, the optional ground of exclusion referred to in Article 45(2), first subparagraph, point (b) of Directive 2004/18 specifically aims to guarantee the contracting authority that it will enter into a contract with an economic operator with sufficient economic stability.

41      It follows that, from the time the application is filed, it must be considered that the economic operator is subject to an arrangement with creditors, within the meaning of that provision.

42      The fact that, in its application for an arrangement with creditors, the economic operator reserves the right to submit a plan that provides for the continuation of its business cannot affect that finding.

43      It is true, as is apparent from the order for reference that an economic operator who has filed an application for a court approved arrangement including a plan for the continuation of the business may, under the conditions laid down by national law, participate in public procurement procedures. It follows that Italian legislation provides for a difference in treatment, as regards their eligibility to participate in public procurement procedures, as between economic operators who have filed an application for an arrangement with creditors depending on whether or not they have included a plan in their application that provides for the continuation of the business.

44      However, that difference in treatment is not incompatible with the case-law of the Court.

45      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. In that context, Member States have the power to make the criteria laid down in Article 45(2) less onerous or more flexible (judgment of 14 December 2016, Connexxion Taxi Services, C‑171/15, EU:C:2016:948, paragraph 29 and the case-law cited).

46      In that case, the Member State concerned is entitled to determine the conditions under which the optional grounds for exclusion do not apply (see, to that effect, judgment of 20 December 2017, Impresa di Costruzioni Ing. E Mantovani and Guerrato, C‑178/16, EU:C:2017:1000, paragraph 41).

47      As the Italian Government observed, the fact that an economic operator is the subject of an arrangement with creditors pursuant to Article 45(2), first subparagraph, point (b) of Directive 2004/18, does not, however, prevent the relevant national legislation from authorising that economic operator to participate in public procurement procedures, under the conditions defined by that legislation.

48      It is equally consistent with EU law and specifically the principle of equality in public procurement procedures for national legislation to exclude from participation in a public contract an economic operator who has submitted an application for ‘blank arrangement’ or to include it.

49      Furthermore, the situation in which that operator has not yet, on the date on which the exclusion decision is made, committed itself to enter into an arrangement with creditors as a going concern is not comparable, in terms of its financial stability, to the situation of an economic operator which undertakes to continue its economic activity on that date.

50      In the light of all the foregoing, the answer to the questions referred is that Article 45(2), first subparagraph, point (b) of Directive 2004/18 must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which allows the exclusion from a public procurement procedure of an economic operator who, at the date of the exclusion decision, has filed an application for an arrangement with creditors, while reserving the right to present a plan which provides for the continuation of the business.

 Costs

51      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 (Tenth Chamber) hereby rules:

Article 45(2), first subparagraph, point (b) 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 allows the exclusion from a public procurement procedure of an economic operator who, at the date of the exclusion decision, has filed an application for an arrangement with creditors, while reserving the right to present a plan which provides for the continuation of the business.

[Signatures]

*      Language of the case: Italian.

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