Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 23 May 2018 — Lombardi Srl v Comune di Auletta and Others
(Case C-333/18)
Language of the case: Italian
Referring court
Consiglio di Stato
Parties to the main proceedings
Appellant: Lombardi Srl
Respondents: Comune di Auletta, Delta Lavori SpA, Msm Ingegneria Srl
Question referred
Can the third paragraph of Article 1(1) and Article 1(3) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, 1 as amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007, 2 be interpreted as allowing, where several undertakings have participated in the tendering procedure and have not been joined to the legal proceedings (and in any event no objection has been lodged in respect of the tenders submitted by some of them), it to be left to the court concerned, by virtue of the procedural autonomy accorded to the Member States, to assess whether the interest claimed in the main action by the candidate against whom an ‘excluding’ counterclaim, considered to be well-founded, has been brought, is a vested interest, using the procedural instruments available to it under the national legal order and thus ensuring that the protection of that subjective position is in line with the consolidated national principles: (i) that the court must address all the parties’ claims but can grant only the relief sought by them (Article 112 of the Code of Civil Procedure); (ii) relating to proof of the interest alleged (Article 2697 of the Civil Code); and (iii) that a judgment having the force of res judicata has effect only as between the parties to the proceedings and cannot concern the position of persons not involved in the dispute (Article 2909 of the Civil Code)?
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1 OJ 1989 L 395, p. 33.
2 Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (OJ 2007 L 335, p. 31).