Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 5 February 2019 — Rieco SpA v Comune di Ortona, Ecolan SpA

(Case C-90/19)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Appellant: Rieco SpA

Respondents: Comune di Ortona, Ecolan SpA

Questions referred

Does EU law (in particular the principle of free administration by public authorities and the principle that the different rules governing the award of service contracts and the management of services relevant to public authorities must be essentially equivalent) preclude a national law (such as that set out in Article 192(2) of the Italian Public Procurement Code, Legislative Decree No 50 of 2016), which places the in-house award of contracts on a subordinate level to award by means of public tender procedure and establishes it as an exception to the latter, by: (i) permitting contracts to be awarded in house only when there is clear evidence of failure in the relevant market, and (ii) requiring authorities intending to make an award by inter-organisational delegation to provide specific reasons with regard to the benefits for society at large accruing from that form of award?

Does EU law (in particular Article 12(3) of Directive 2014/24/EU 1 concerning the in-house award of contracts where similar control is exercised jointly with other authorities) preclude a provision of national law (such as that set out in Article 4(1) of the Consolidated Law concerning companies in which all or a majority of the share capital is in public ownership — Legislative Decree No 175 of 2016) which prevents a public authority from acquiring a shareholding (in any event one that can guarantee control or power of veto) in a body in which a number of other public authorities have shareholdings, where that authority intends in any event to acquire subsequently a position of joint control and therefore the possibility of making direct awards to that body in which a number of other public authorities have shareholdings?

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1     Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65).