Judgment_paragraph 52 · Azienda sanitaria locale n. 5 ‘Spezzino’ and Others v San Lorenzo Soc. coop. Sociale and Croce Verde Cogema cooperativa sociale Onlus (C-113/13)

52It must therefore be held that a system of agreements such as that instituted by Article 75b of the LR No 41/2006 leads to a result contrary to those objectives. By providing that the competent public authorities are to have recourse, by direct award, on a preferential basis to voluntary associations covered by the agreements to satisfy needs in that area, such legislation excludes for-profit entities from an essential part of the market concerned. According to the case-law of the Court, the award, in the absence of any transparency, of a contract to an undertaking located in the same Member State as the contracting authority amounts to a difference in treatment to the detriment of undertakings which might be interested in that contract but are situated in another Member State. Unless it is justified by objective circumstances, such a difference in treatment, which, by excluding all undertakings located in another Member State, operates mainly to the detriment of the latter undertakings, amounts to indirect discrimination on the basis of nationality, prohibited under Articles 49 TFEU and 56 TFEU (see, to that effect, judgments in Commission v Ireland, EU:2007:676, paragraphs 30 and 31; Commission v Italy, EU:C:2007:729, paragraph 64; and Commission v Italy, EU:C:2008:102, paragraph 66).