Administrative, Contracts of the Public Administration, Subcontracting, Quotas, Limits pursuant to art. 118, Legislative Decree no. 163 of 2006, Compliance with European regulations, referral to the EU Court of Justice, Cons. St., sect. VI, ord., 11 June 2018, n. 3553

Treaty on the Functioning of the European Union (TFEU), Legislative Decree. 12 April 2006, n. 163, EU Directive 2004/18 and EU Directive 2014 /24

The question of whether the principles of freedom of establishment and freedom to provide services, referred to in articles 2, must be referred to the Court of Justice; 49 and 56 of the Treaty on the Functioning of the European Union (TFEU), art. 25 of Directive 2004/18 of the European Parliament and of the Council of March 31, 2004 and 71 of Directive 2014 // 24 of the European Parliament and of the Council of February 26, 2014, which do not include limitations as regards the subcontracting quota and the discount to be applied subcontractors, as well as the Euromeditarian principle of proportionality, prevent the application of national legislation on public procurement, such as the Italian law contained in art. 118, paragraphs 2 and 4 of Legislative Decree of 12 April 2006, n. 163, according to which subcontracting can not exceed 30% of the total amount of the contract and the assignee must perform, for the services subcontracted, the same unit prices resulting from the award, with a reduction not exceeding twenty percent (1).

(1) In the opinion of the Section the provision, contained in art. 118, paragraphs 2 and 4 of Legislative Decree of 12 April 2006, n. 163, of the general limits dictated by the two paragraphs of art. 118 in question (containing respectively an overall limit of 30% for subcontracting, with reference to the total amount of the contract, preventing economic operators from subcontracting a substantial part of the works to third parties, equal to 70%, as well as a limit of 20% downwards to be applied to subcontractors), can make it more difficult for companies, particularly small and medium-sized enterprises, to access public contracts, thus hindering the exercise of freedom of establishment and freedom to provide services and precluding moreover, the same public purchasers have the opportunity to receive more numerous and diversified offers; this limit, not provided for by Directive 2004/18, imposes a restriction on the right to use subcontracting for a part of the contract set abstractly in a certain percentage of the same, regardless of the possibility of verifying the capabilities of any subcontractors and without mentioning the essential nature of the tasks in question, contrary to the objectives of opening up competition and favoring access by small and medium-sized enterprises to public procurement.

Source Administrative Justice