Case Alert - CJEU Sixth Chamber C‑144/17

CJEU rules that national courts can adopt legislation banning Lloyd's syndicates from tendering in certain circumstances

Two Lloyd's syndicates tendered for an award of a public service contract for insurance in Italy. However, the relevant Italian body ("Arpacal") excluded the syndicates from the procedure on the basis that the tenders by the syndicates were both signed by the Lloyd's General Representative for Italy. Arpacal argued that this fell foul of an Italian statute which effectively bans tenders for the award of public contracts if they are attributable to a single decision-making centre (a statute which is intended to prevent any potential collusion between tenderers for the award of a public contract, and so ensure the equal treatment of all tenderers and safeguard the transparency of the procedure). The Italian courts asked the Court of Justice of the European Union ("CJEU") to decide whether the Italian statute complies with EU law.

The CJEU has now held that an automatic ban is not permissible under EU law: "As a result, in this case, the mere fact that tenders such as those in the main proceedings have been signed by the same person, namely the Special Agent of Lloyd's General Representative for Italy, cannot justify their automatic exclusion from the tendering procedure at issue". However, it is possible for an EU Member State to exclude tenderers "where it finds, on the basis of unambiguous evidence, that their tenders were not drawn up independently, which is a matter that falls to be determined by the referring court".