Articles. 186, c. 2 and 191, c. 9 of Legislative Decree no. 163/2006, in so far do not allow the association of undertakings on their own rankings of insufficient qualification for participation in a particular applicant's race ranking higher contrast with Articles 47 and 48 of Directive 2004/18/EC, which expressly state the opportunity for those gathered in ATI to compete for the demonstration of the technical, economic and financial requirements for participation in the race, they should be precluded.
These conclusions reached by the Lazio Regional Administrative Court (Section III, 02/10/2007 No. 9630) Anas ruling on a contract in which, during the prequalification on the Commission had decided to exclude from the race un'ATI whose subjects costitutari having the certificate of qualified general contractor for the I instead of II for the list.
The following is an excerpt of the award.
The Community legal order in the matter which is inspired by the care essential principle of free competition, expressly set out in Articles. 81 and 82 of the EC Treaty. Form an application, in the specific field of competition for the award works contracts and public services, the principle of maximum possible participation of non-discrimination between companies, proportionality and appropriateness when determining the admission requirements (see SC, V, No 2294/2002). In this light, then that system shows a strong appreciation for groupings of businesses and professionals established for obtaining the contracts and public services. These combinations take place, in fact, in economic terms, an objective function anti-monopoly, allowing an extension of the competitive dynamics and facilitating market entry for smaller companies, or specialize in particular industries and technology, physiologically selected by comparing the prices offered negotiations (see SC, V, No 3188/2001). To properly address the aims, the legislation requires the subject to an ATI basically equal treatment to that provided in general for other persons admitted to the races, defining homogeneous subjective requirements for participation. In this case, however, precisely in a sector definitely falling for the economic importance of the work involved, within the scope of EU principles, the normal function of the RTI is diverted from its ontological connotations of expanding the audience of competitors through removal of barriers of the dimensional requirements and technical Financial fixed by the contracting clients. Indeed, the combined effect of Articles. 186 and 191 paragraph 2 of subsection 9 of Legislative Decree no. 163/2006 allows the aggregation between general contractors in the A consortium only if there is already at least one person alone in possession of the relevant qualification standings for the race. In this way, are prevented from general contractors for smaller (and related economic and financial requirements and technical-can caters) to join forces, combining these requirements, compete for the award of contracts of significant size and which would otherwise inevitably excluded. The aforementioned national legislation therefore undermines the very rationale behind the institution of ATI and indeed, since it does not mean that all member companies are also in possession of the relevant charts themselves to participate, even makes it possible to use the format of the car for the purposes of pursuing anti-competitive and oligopolistic. It is a paradoxical result, particularly relevant in the highest amount of races in which many companies already are not individually have the relevant qualification standings. In addition, the conjunction of these articles appears to the Board in conflict with the principles of proportionality and non-discrimination, since for general contractors in the tendering ATI is basically required a requirement qualification (as determined by the sum of the rankings of individual members) and for reasons that are still to be higher than that of the participants individually. The articles in question, therefore, lead to the restriction of competition, a total of dystonia with the aims pursued by the Community legislature. Nor can it be concluded that the award of works to be exempted from a general contractor with respect, to that extent, the Community rules on the subject of race and public works contracts. In fact, while the same state legislation governing the award of infrastructure in general contractor expressly preaches respect for Directive 2004/18 (see art.176 of Legislative Decree no. 163/2006) and Directive 93/37/EEC (see Art. 1, paragraph 2, lett. f, of Law No. 443/2001), the same abovementioned Directive No 18/2004/EC covers, art. 1, paragraph 2, letter b), in its scope, including the 'public works', not just those relating to "the execution, both the design and execution of works related to one of activities listed in Annex I or a work ", but also (as is the case with the" general contractor "defined in art. 176 of Legislative Decree no. 163/06) relating to" the 'by whatever means, of work corresponding to the requirements specified by the contracting authority. " Post
therefore the applicability of that directive are bidding for the award of a general contractor work, it follows a clear conflict of law brought by repeated articles. 186, par. 2 and 191, co. 9 (in so far do not allow the association of undertakings on their own rankings with insufficient qualification for participation in a particular applicant's race ranking higher) and articles (the concrete expression of the principles of competition that has been said) 47 and 48 repeated the Directive of 2004. These articles, in fact, is precisely the requirements of economic-financial, technical and professional traders competing in public procurement, establish, first, that these operators may "where appropriate and for a particular contract, rely on the capacities of other entities, regardless of the legal nature of" their "ties with them, in this case, however, having to prove to the administration authority which will have "the necessary means, for example by producing an undertaking to this effect of these subjects," and especially so far as relevant here, state that "under the same conditions a group of economic operators as referred to in Article 4 may rely on the capacities of members of the consortium or of other persons. " Community legislation expressly so provides la possibilità per i soggetti riuniti in ATI di concorrere ai fini della dimostrazione dei requisiti tecnico, economico-finanziari necessari per la partecipazione alla gara. Il combinato disposto dei predetti articoli del D.Lgs. n. 163/2006 dev’essere quindi nella specie disapplicato, stante la prevalenza della normativa comunitaria sulla contrastante normativa nazionale (preesistente o sopravvenuta che sia) e l’obbligo di diretta applicazione della direttiva predetta. Né potrebbe ritenersi che in questo modo vi sia nella specie pericolo di eccessivo frazionamento dei requisiti tra i vari componenti del raggruppamento, poiché quest’ultimo risulta costituito da due soli componenti. Consegue ulteriormente, al quadro normativo come sopra applicabile and accepting the proposed action, the invalidity of acts prejudicial to the contested and specified in the epigraph (notice and act of exclusion), according to the interest. (TAR Lazio, sez. III, 02/10/2007 No. 9630)
These conclusions reached by the Lazio Regional Administrative Court (Section III, 02/10/2007 No. 9630) Anas ruling on a contract in which, during the prequalification on the Commission had decided to exclude from the race un'ATI whose subjects costitutari having the certificate of qualified general contractor for the I instead of II for the list.
The following is an excerpt of the award.
The Community legal order in the matter which is inspired by the care essential principle of free competition, expressly set out in Articles. 81 and 82 of the EC Treaty. Form an application, in the specific field of competition for the award works contracts and public services, the principle of maximum possible participation of non-discrimination between companies, proportionality and appropriateness when determining the admission requirements (see SC, V, No 2294/2002). In this light, then that system shows a strong appreciation for groupings of businesses and professionals established for obtaining the contracts and public services. These combinations take place, in fact, in economic terms, an objective function anti-monopoly, allowing an extension of the competitive dynamics and facilitating market entry for smaller companies, or specialize in particular industries and technology, physiologically selected by comparing the prices offered negotiations (see SC, V, No 3188/2001). To properly address the aims, the legislation requires the subject to an ATI basically equal treatment to that provided in general for other persons admitted to the races, defining homogeneous subjective requirements for participation. In this case, however, precisely in a sector definitely falling for the economic importance of the work involved, within the scope of EU principles, the normal function of the RTI is diverted from its ontological connotations of expanding the audience of competitors through removal of barriers of the dimensional requirements and technical Financial fixed by the contracting clients. Indeed, the combined effect of Articles. 186 and 191 paragraph 2 of subsection 9 of Legislative Decree no. 163/2006 allows the aggregation between general contractors in the A consortium only if there is already at least one person alone in possession of the relevant qualification standings for the race. In this way, are prevented from general contractors for smaller (and related economic and financial requirements and technical-can caters) to join forces, combining these requirements, compete for the award of contracts of significant size and which would otherwise inevitably excluded. The aforementioned national legislation therefore undermines the very rationale behind the institution of ATI and indeed, since it does not mean that all member companies are also in possession of the relevant charts themselves to participate, even makes it possible to use the format of the car for the purposes of pursuing anti-competitive and oligopolistic. It is a paradoxical result, particularly relevant in the highest amount of races in which many companies already are not individually have the relevant qualification standings. In addition, the conjunction of these articles appears to the Board in conflict with the principles of proportionality and non-discrimination, since for general contractors in the tendering ATI is basically required a requirement qualification (as determined by the sum of the rankings of individual members) and for reasons that are still to be higher than that of the participants individually. The articles in question, therefore, lead to the restriction of competition, a total of dystonia with the aims pursued by the Community legislature. Nor can it be concluded that the award of works to be exempted from a general contractor with respect, to that extent, the Community rules on the subject of race and public works contracts. In fact, while the same state legislation governing the award of infrastructure in general contractor expressly preaches respect for Directive 2004/18 (see art.176 of Legislative Decree no. 163/2006) and Directive 93/37/EEC (see Art. 1, paragraph 2, lett. f, of Law No. 443/2001), the same abovementioned Directive No 18/2004/EC covers, art. 1, paragraph 2, letter b), in its scope, including the 'public works', not just those relating to "the execution, both the design and execution of works related to one of activities listed in Annex I or a work ", but also (as is the case with the" general contractor "defined in art. 176 of Legislative Decree no. 163/06) relating to" the 'by whatever means, of work corresponding to the requirements specified by the contracting authority. " Post
therefore the applicability of that directive are bidding for the award of a general contractor work, it follows a clear conflict of law brought by repeated articles. 186, par. 2 and 191, co. 9 (in so far do not allow the association of undertakings on their own rankings with insufficient qualification for participation in a particular applicant's race ranking higher) and articles (the concrete expression of the principles of competition that has been said) 47 and 48 repeated the Directive of 2004. These articles, in fact, is precisely the requirements of economic-financial, technical and professional traders competing in public procurement, establish, first, that these operators may "where appropriate and for a particular contract, rely on the capacities of other entities, regardless of the legal nature of" their "ties with them, in this case, however, having to prove to the administration authority which will have "the necessary means, for example by producing an undertaking to this effect of these subjects," and especially so far as relevant here, state that "under the same conditions a group of economic operators as referred to in Article 4 may rely on the capacities of members of the consortium or of other persons. " Community legislation expressly so provides la possibilità per i soggetti riuniti in ATI di concorrere ai fini della dimostrazione dei requisiti tecnico, economico-finanziari necessari per la partecipazione alla gara. Il combinato disposto dei predetti articoli del D.Lgs. n. 163/2006 dev’essere quindi nella specie disapplicato, stante la prevalenza della normativa comunitaria sulla contrastante normativa nazionale (preesistente o sopravvenuta che sia) e l’obbligo di diretta applicazione della direttiva predetta. Né potrebbe ritenersi che in questo modo vi sia nella specie pericolo di eccessivo frazionamento dei requisiti tra i vari componenti del raggruppamento, poiché quest’ultimo risulta costituito da due soli componenti. Consegue ulteriormente, al quadro normativo come sopra applicabile and accepting the proposed action, the invalidity of acts prejudicial to the contested and specified in the epigraph (notice and act of exclusion), according to the interest. (TAR Lazio, sez. III, 02/10/2007 No. 9630)
