Openbare aanbesteding: inbreukprocedure tegen Italië betreffende directe toekenning voor levering van managementadviesdiensten voor apotheken (en)

The European Commission has decided to send a reasoned opinion to Italy concerning the direct award of a concession for the supply of management consulting services for pharmacies. This is the second stage of the infringement procedure as laid down in Article 226 of the EC Treaty. In the absence of a satisfactory reply within two months, the Commission may decide to refer the matter to the European Court of Justice.

Two Italian Communes directly awarded in 1998 and in 2002 a service concession for the supply of management consulting services concerning their pharmacies, in one case for ten years and in the other for an indefinite term. They had neither any management relationships with the concessionaire nor any power of control over it.

The Italian Authorities claimed that the Communes would have enacted a series of modifications in the statutes and rules of the concessionaire in order to establish an "in house" relationship with it, even though they did not acquire any participation in its share capital. Moreover, the Italian Government pointed out that on the basis of Italian law the Communes concerned had to carry out a general economic analysis in order to decide whether to keep the direct award or to launch a call for tenders or to award the concession to a public-private company.

The Commission disagreed with the arguments of the Italian Government, pointing out that the direct award at issue is contrary to the general principles of the EC Treaty, pursuant to which an adequate level of transparency and publicity has always to be ensured towards all economic operators potentially interested, namely through a call for tenders.

In fact, according to the case-law of the European Court of Justice, a call for tenders is not mandatory, even though the other contracting party is an entity legally distinct from the contracting authority, only where the public authority which is a contracting authority exercises over the separate entity concerned a control which is similar to that which it exercises over its own departments and that entity carries out the essential part of its activities with the controlling public authority or authorities (so called "in-house providing"). This is not the case in the infringement procedure at issue, because none of the Communes concerned had any relationship with the concessionaire.

Furthermore, as to the justification based on Italian law, the Commission rejected it and referred to the case-law of the European Court of Justice, according to which a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with European law.

The latest information on infringement proceedings concerning all Member States can be found at: http://ec.europa.eu/community_law/index_en.htm