Judgment of the Court (Third Chamber) of 10 September 2009 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy)) — Sea s.r.l. v Comune di Ponte Nossa

(Case C-573/07) (1)

(Public procurement - Award procedures - Contract relating to a service for the collection, transport and disposal of urban waste - Awarded without any call for tenders - Awarded to a company limited by shares whose capital is wholly owned by public bodies but under whose statutes a private capital holding is possible)

2009/C 267/24

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Lombardia

Parties to the main proceedings

Applicant: Sea s.r.l.

Defendant: Comune di Ponte Nossa

Third party: Servizi Tecnologici Comuni — Se.T.Co. SpA

Re:

Reference for a preliminary ruling — Tribunale Amministrativo Regionale per la Lombardia (Italy) — Interpretation of Articles 12 EC, 43 EC, 49 EC and 86 EC — Procedures for the award of public contracts — Public services for the collection, transport and disposal of urban waste — Direct award of a contract to a limited company with share capital belonging entirely to the public sector but where the statutes of that company allow for the possibility of private investment

Operative part of the judgment

It is not contrary to Articles 43 EC and 49 EC, the principles of equal treatment and of non-discrimination on grounds of nationality or the obligation of transparency arising therefrom for a public service contract to be awarded directly to a company limited by shares with wholly public capital so long as the public authority which is the contracting authority exercises over that company control similar to that which it exercises over its own departments and so long as the company carries out the essential part of its activities with the authority or authorities controlling it.

Without prejudice to the determination by the court making the reference of the effectiveness of the relevant provisions of the statutes, the control exercised over that company by the shareholder authorities may be regarded as similar to that which they exercise over their own departments in circumstances such as those of the case in the main proceedings, when:

(1)  OJ C 64, 8.3.2008.