CJEU Case C-465/18 / Opinion

Key facts

1. This request for a preliminary ruling, lodged with the Court Registry on 16 July 2018 by the Consiglio di Stato (Council of State, Italy), concerns the interpretation of Articles 45, 49 to 56 and 106 TFEU and Articles 15 and 16 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2. The request has been made in proceedings between AV and BU, on the one hand, and the Comune di Bernareggio (Municipality of Bernareggio, Italy) and CT, on the other.
3. In the main proceedings, AV and BU, the owners of a pharmacy located outside the Municipality of Bernareggio, were provisionally awarded the contract for the purchase of a municipal pharmacy following the completion of a tender procedure.
4. Despite the fact that AV and BU had submitted the most economically advantageous tender and were provisionally awarded the contract, precedence was nonetheless given to CT, a pharmacist employed by the Azienda Speciale Farmacie Vimercatesi  ‑ the body entrusted with the operation of the municipality’s pharmacies. The events leading to this state of affairs will be set out in greater detail in the course of this Opinion.
5. Following the provisional award of the contract, CT (who is an employee of the municipal pharmacy in question, but who had not participated in the tender procedure) exercised by letter a right of pre-emption granted by statute to employees of municipal pharmacies in the event of the transfer of such pharmacies. CT consequently obtained the final award of the contract in question.
6. AV and BU challenged that final award before the Italian administrative courts.
7. The request for a preliminary ruling affords the Court an opportunity to rule, for the first time, on the legality of a national rule granting a right of pre-emption to employees in the event of a transfer of ownership of a municipal pharmacy following a tender procedure.

Judgement

In view of all the foregoing considerations, I consider that the Court should answer the question referred by the Consiglio di Stato (Council of State, Italy) as follows:

Article 49 TFEU must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which, in the event of the transfer of ownership of a municipal pharmacy, confers a right of pre-emption on the employees of the pharmacy in question.