Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 3 July 2023 – Gi One SpA v Consip SpA
(Case C-404/23, Gi One)
Language of the case: Italian
Referring court
Consiglio di Stato
Parties to the main proceedings
Appellant: Gi One SpA
Respondent: Consip SpA
Questions referred
Do Directive 2004/18/EC, 1 Articles 16 and 52 of the Charter of Fundamental Rights of the European Union and the principles of proportionality, competition, freedom of establishment and freedom to provide services laid down in Articles 49, 50, 54 and 56 of the TFEU preclude national rules (Articles 11(6), 37(8), (9), (10), (18) and (19), and 38(1)(f) of Legislative Decree No 163 of 2006) which exclude, in the event of the expiry of the validity period of the tender originally submitted by an RTI to be established, the possibility of reducing the original membership of the RTI when the validity period of that tender is extended? In particular, are those national provisions compatible with the general principles of EU law of freedom of economic initiative and effectiveness, and with Article 16 of the Charter of Fundamental Rights of the European Union?
Do Directive 2004/18/EC, Articles 16, 49, 50 and 52 of the Charter of Fundamental Rights of the European Union, Article 4 of Protocol No. 7 to the European Convention on Human Rights (ECHR), Article 6 TEU, and the principles of proportionality, competition, freedom of establishment and freedom to provide services laid down in Articles 49, 50, 54 and 56 TFEU preclude national rules (Articles 38(1)(f), 48 and 75 of Legislative Decree No 163 of 2006) which provide for the application of the penalty of forfeiture of the provisional security, as an automatic consequence of the exclusion of an economic operator from a procedure for the award of a public service contract, irrespective of whether or not that economic operator has been awarded the contract?
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1 Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).