Components for buses of the Iveco make or equivalent. AG Sánchez-Bordona rules on the need for the EC type-approval

On 5 May 2022, Advocate General Sánchez-Bordona handed down his Conclusions in Joined Cases C‑68/21 and C-84/21, Iveco Orecchia SpA v APAM Esercizio SpA and Brescia Trasporti SpA, on the interpretation of Articles 10(2), 19(1) and 28(1) of Directive 2007/46/EC. The requests have been brought in proceedings between, on the one hand, APAM Esercizio SpA and Brescia Trasporti SpA, two public undertakings responsible for providing urban and interurban passenger transport services in their respective municipalities (Mantua and Brescia) which issued calls for tenders for the supply of spare parts for buses and, on the other hand, Iveco Orecchia SpA (“Iveco”), an unsuccessful tenderer.

Iveco participated, on the one hand, to the open tender procedure for the biannual supply of original Iveco spare parts or equivalents for buses advertised by APAM Esercizio SpA and, on the other hand, to the procedure for the award of a contract for the supply of spare parts for Iveco buses fitted with an Iveco engine advertised by Brescia Trasporti SpA. Since it did not succeed in awarding any of the supply contracts, Iveco challenged the two decisions before the Tribunale amministrativo regionale (TAR) per la Lombardia, arguing that the successful tenderers had not proved, by certificate or any other means, that the components were type-approved, as required by the contract documents and relevant legislation, and that the tender documents were unlawful, inasmuch as they did not require, where necessary, the provision of a type-approval certificate issued by a competent authority, or, in any event, proof of the existence of such type-approval.

Given that both actions were dismissed, Iveco brought appeals before the Consiglio di Stato (the “referring court”) which, in light of the need to interpret the relevant European legislation, decided to stay the proceeding and to ask the Court of Justice whether it is compatible with Articles 10, 19 and 28 of Directive 2007/46/EC and the principles of equal treatment and impartiality, open competition and sound administration, for, with specific reference to the supply through public procurement of replacement parts for buses intended for public service, a contracting authority to be allowed to accept replacement parts intended for a particular vehicle, made by a manufacturer other than the vehicle manufacturer, and therefore not approved together with the vehicle, falling into one of the categories of components covered by the technical rules listed in Annex IV to that directive and put to tender without being accompanied by the type-approval certificate and without any information on the actual type-approval, and indeed on the assumption that type-approval is not needed, as only a declaration of equivalence to the type-approved original made by the tenderer is sufficient.

According to the AG, other than the situation where a particular component is exempt from the type-approval requirement, the components referred to in any of the regulatory acts listed in Annex IV to Directive 2007/46 may not be placed on the market if they have not first been granted EC type-approval, which thus becomes a precondition for suitability that is applicable not only to public-procurement-based channels of introduction, but also to any form of placing spare parts on the market. Furthermore, replacement components are not exempt from type-approval testing solely because they are to be fitted to a used car, which makes it not possible to accept as an alternative to the submission of type-approval certificates a mere unilateral declaration by the tenderer as to the equivalence of spare parts to original components.

Marco Stillo