The European Commission issued two reasoned opinions (second stage of the infringement procedure) against Italy regarding extensions of contracts without a prior call for tenders.
The first case concerns the granting of an extension of 18 years to the company which is currently the concessionaire in charge of building and managing Motorway A12 Livorno-Civitavecchia. The concession contract has been extended without a prior call for tenders, impeding the participation of potentially interested undertakings from other Member States. According to EU law, the extension of a public procurement or a concession contract is equivalent to a new public procurement or concession, which can be awarded only after a competitive tendering procedure.
The second case concerns the awarding of waste management services to a privatized company by municipalities without competitive procedure. In addition, Italy passed legislation allowing contracts awarded without competitive tendering procedures to companies with private participation to remain in force until their natural end date. Under EU law, the award of public contracts to companies must be given following open, transparent and competitive tendering procedures. The Commission is concerned that this situation prevents companies across Europe from having a chance to enter the market and provide the best value-for-money service, which is also in the interests of users and taxpayers.
The European Commission, therefore, considers that Italy has failed to fulfil its obligations under EU public procurement rules, especially Directive 2004/18/EC in these two cases. If no measures to put an end to the violation of EU law are notified by the Italian authorities within two months, the Commission may decide to refer the matter to the EU Court of Justice.
In Belgium, the Council of State ("Conseil d'Etat"/"Raad van State") rendered similar decisions stating that the extension of the duration of a contract cannot be awarded without a prior tendering procedure.
i.a. C.E./R.v.St., number 217.382, 19 January 2012.