In the Vitali SpA v. Autostrada per Italia SpA case (Case C-63/18), the Court of Justice was asked if Public Procurement Directive 2014/24 must be interpreted as precluding national legislation which limits to 30% the share of a contract which a tenderer is permitted to subcontract to third parties.
In its judgement of 26 September 2019, the Court of Justice first recalled that it already held that a clause in the tender specifications for a public works contract which imposes limits on the use of subcontractors for a share of the contract fixed in abstract terms to a particular percentage of that contract, irrespective of the possibility of verifying the capacities of potential subcontractors and without any mention of the essential character of the tasks which would be concerned, is incompatible with Public Procurement Directive 2004/18.
Secondly, the Court noted that while Article 71 of Public Procurement Directive 2014/24 reproduces, in essence, the wording of Article 25 of Public Procurement Directive 2004/18, it nevertheless prescribes additional rules on subcontracting.
However, according to the Court, it cannot be inferred from the intention of the EU legislature to circumscribe more precisely, by means of the adoption of the rules in article 71 of Public Procurement Directive 2014/24, the situations in which the tenderer uses subcontractors, that Member States now have the power to limit that use to a share of the contract fixed in abstract terms to a particular percentage of the contract.
The Italian government highlighted the fact that the restriction on the use of subcontracting was justified in the light of the particular circumstances prevailing in Italy, where subcontracting has always been one of the mechanisms used to carry out criminal operations. According to the Italian government, by limiting the share of the contract that can be subcontracted, the national legislation makes participation in public purchasing less attractive to criminal organisations, and this can prevent the phenomenon of mafia infiltration in public purchasing and thus protect the public interest.
The Court confirmed that combating the phenomenon of infiltration of the public procurement sector by organised crime constitutes a legitimate objective capable of justifying a restriction on the fundamental rules and general principles of the TFEU which apply in public procurement procedures.
However, it estimated that even if a quantitative limit on the use of subcontracting may be regarded as likely to combat such a phenomenon, a restriction such as that at issue goes beyond what is necessary to achieve this objective. The Court observed that the objective could be achieved by less restrictive measures.
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