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Bruxelles,
DG MARKT/D2/MRA/cc D(2004) 5831
Egr. Sig.
Giovanni Maselli
Piazza Bruno, 4
16010 Isoverde (GE)
Subject: Region Liguria – Allocation of computer services
Ref.: Claim n. 4014/2003
Dear Mr. Maselli,
Further to our previous correspondence relative your claim registered with the abovementioned number I wish to provide you with some information relative the case mentioned in the object.
Following the receipt of your claim, the Commission sent to the Italian Republic, on July 25, 2003, a letter of suit to the Italian Government as per article 226 of the EU treatise. The Commission has decided, in fact, that the direct attribution, not preceded by the publication of a proclamation of a tender in GUCE , of the contract of computer services indicated by you to Datasiel S.p.A., consists in a violation of the norms of publicity provided for by the directive 92/50/CEE of the Council, of June 18, 1992, which coordinates the procedures of the adjudication of public tenders of services.
The services of the Commission then discussed the case with the competent Italian Authorities, in the sphere of a meeting which was held in Rome on the day September 11 and 12, 2003.
In their reply of March 8, 2004, the Italian Authorities communicated that, following the aforementioned letter of suit, the Region of Liguria undertook a series of initiatives directed at putting an end to the situation which lead to the beginning of the procedure of infraction. In particular, the Region of Liguria decided to purchase the total control of Datasiel through the purchase of the entire quota of participation in the capital of Datasiel already possessed by the private partner and to discipline its relations with this company in such a way as to assure that the activity of the same be given exclusively, or anyway in an absolutely prevalent manner, in favour of the Region and of its instrumental entities, modifying in this sense the convention in place.
In this regard, my services point out that, following the acquisition, on part of the Region, of the absolute control of Datasiel and of the discipline of the activity of the same in the abovementioned sense, the said company does not appear to be able to be qualified any longer as a distinct subject by the same Region for the purposes of the application of the community directives in the subject of public tenders.
According to what has emerged from the jurisprudence of the Court of justice of the European Community (judgment of November 18, 1999, Teckal suit C- 107/98), in fact, the aforementioned directives do not find application in the hypotheses in which, from one side the administration exerts on the contractor “a control analogous to that exerted on its own services”, and on the other this same subject realises the most important part of its own activity with the entity controlling it. This in as much, in such a case, a meeting of wills between two distinct subjects both on the formal level as well as that of substance is not recognizable.
Supposing the aforementioned, the services of the Commission deems that the aforementioned initiatives put in place by the Region of Liguria are suitable to the cessation of the situation of infraction of the Community law indicated in the cited letter of put to suit.
Therefore, my services, fact save the possibility of receiving from your part, within the term of a month from the receipt of the present letter, new elements susceptible to modifying the conclusions reached, intend to propose to the Commission the archiving of the case in one of its next meetings.
Best regards,
The Head of the Unit f.f.
L. Moisello
Contact person:
M.R. Assetta, Telefono:(32-2)2985032, Fax:(32-2)2960962
maria-raffaella.assetta@cec.eu.int
