Avis juridique important

Judgment of the Court (First Chamber) of 18 June 1991. - Impresa Donà Alfonso di Donà Alfonso & Figli v Consorzio per lo sviluppo industriale del comune di Monfalcone, Regione Friuli-Venezia Giulia, Impresa Luigi Tacchino SpA and Impresa Carlutti Costruttori SRL. - Reference for a preliminary ruling: Tribunale amministrativo regionale del Friuli-Venezia Giulia - Italy. - Public works contracts - Abnormally low tenders. - Case C-295/89. European Court reports 1991 Page I-02967 Pub.RJ Page Pub somm

Summary Parties Operative part

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Approximation of laws - Procedures for the award of public works contracts - Directive 71/305 - Award of contracts - Abnormally low tenders - Automatic disqualification - Not permissible - Obligation to conduct an examination procedure - Tenders subject to examination

(Council Directive 71/305, Art. 29(5) )

Article 29(5) of Council Directive 71/305, from which the Member States may not depart to any material extent when implementing it, prohibits Member States from introducing provisions which require the automatic disqualification from the award of public works contracts of certain tenders determined according to a mathematical criterion, instead of obliging the awarding authority to apply the examination procedure laid down in the directive, giving the tenderer an opportunity to furnish explanations.

The Member States may require that tenders be examined when those tenders appear to be abnormally low, and not only when they are obviously abnormally low.

(In this judgment the Court' s ruling is in the same terms as those of the judgment in Case 103/88 Fratelli Costanzo v Comune di Milano [1989] ECR

I-1839, in which the questions referred to it were essentially the same.)

In Case C-295/89,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunale Amministrativo Regionale (Regional Administrative Court), Friuli-Venezia Giulia, Italy, for a preliminary ruling in the proceedings pending before that Court between

Impresa Donà Alfonso di Donà Alfonso & Figli

and

Consorzio per lo Sviluppo Industriale del Comune di Monfalcone,

Regione Friuli-Venezia Giulia,

Impresa Luigi Tacchino SpA,

Impresa Carlutti Costruttori Srl,

on the interpretation of Article 29(5) of Council Directive 71/305/EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts (Official Journal, English Special Edition 1971 (II), p. 682),

THE COURT (First Chamber),

composed of: G.C. Rodríguez Iglesias, President of the Chamber, Sir Gordon Slynn and R. Joliet, Judges,

(The grounds of the judgment are not reproduced.)

in reply to the questions referred to it by order of the Tribunale Amministrativo Regionale, Friuli-Venezia Giulia, of 7 April 1989, hereby rules:

1. Article 29(5) of Council Directive 71/305 of 26 July 1971 concerning the coordination of procedures for the award of public works contracts prohibits Member States from introducing provisions which require the automatic disqualification from the award of public works contracts of certain tenders determined according to a mathematical criterion, instead of obliging the awarding authority to apply the examination procedure laid down in the directive, giving the tenderer an opportunity to furnish explanations;

2. When implementing Council Directive 71/305, Member States may not depart, to any material extent, from the provisions of Article 29(5) thereof;

3. Article 29(5) of Council Directive 71/305 allows Member States to require that tenders be examined when those tenders appear to be abnormally low, and not only when they are obviously abnormally low.