On 19 May 2009, the European Court of Justice (ECJ) gave a ruling in the Assitur case (C-538/07) on whether it is legitimate to automatically exclude participation in the same tender by undertakings linked by a relationship of control (i.e companies within the same group). The issue arose in relation to a tender for the supply of courier services to the Milan Chamber of Commerce. One of the bidders, Assitur Srl, asked that two competing bidders (SDA Express Courier Spa and Poste Italiane Spa) be excluded from the procedure on the basis that they were linked by a relationship of control. The issue went before the national courts which referred the question to the ECJ. The ECJ held that member states are entitled to include additional grounds for exclusion of tenderers where they are designed to ensure respect for the principles of transparency and equal treatment. However, contracting authorities should not automatically exclude simultaneous and competing participation in the same tender procedure of companies within the same corporate group, without permitting them with an opportunity to demonstrate that the relationship between them did not influence their conduct during the tender procedure.
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Ruling on automatic exclusion of "linked" tenderers
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