# C_2023063EN.01000501.xml

| 20.2.2023 | EN | Official Journal of the European Union | C 63/5 |
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20.2.2023

EN

Official Journal of the European Union

C 63/5

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Judgment of the Court (Fifth Chamber) of 22 December 2022 (requests for a preliminary ruling from the Conseil d’État (Belgium)) — Sambre & Biesme SCRL (C-383/21), Commune de Farciennes (C-384/21) v Société wallonne du logement

(Joined Cases C-383/21 and C-384/21) (1)

(Reference for a preliminary ruling - Public procurement - Directive 2014/24/EU - Award of a public contract without a tendering procedure - Public contracts between entities within the public sector - Article 12(3) - Public contracts awarded in house - Concept of ‘similar control’ - Conditions - Representation of all the participating contracting authorities - Article 12(4) - Contract between contracting authorities pursuing common public interest objectives - Concept of ‘cooperation’ - Conditions - Failure to transpose within the prescribed period - Direct effect)

(2023/C 63/06)

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicant: Sambre & Biesme SCRL (C-383/21), Commune de Farciennes (C-384/21)

Defendant: Société wallonne du logement

Operative part of the judgment

| 1. | Article 12(3) and (4) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC
  must be interpreted as meaning that it has direct effect in the context of litigation between legal persons governed by public law in relation to the direct award of public contracts where the Member State concerned has failed to transpose that directive into national law within the prescribed period. |
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1.

Article 12(3) and (4) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC

must be interpreted as meaning that it has direct effect in the context of litigation between legal persons governed by public law in relation to the direct award of public contracts where the Member State concerned has failed to transpose that directive into national law within the prescribed period.

| 2. | Article 12(3), second subparagraph, (i), of Directive 2014/24
  must be interpreted as meaning that, for the purpose of demonstrating that a contracting authority exercises, jointly with other contracting authorities, a control over the legal person awarded the contract which is similar to that which they exercise over their own departments, the requirement laid down in that provision, namely that a contracting authority be represented in the decision-making bodies of the controlled legal person, is not satisfied solely on the basis that the board of directors of that controlled legal person includes the representative of another contracting authority who is also part of the board of the first contracting authority. |
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2.

Article 12(3), second subparagraph, (i), of Directive 2014/24

must be interpreted as meaning that, for the purpose of demonstrating that a contracting authority exercises, jointly with other contracting authorities, a control over the legal person awarded the contract which is similar to that which they exercise over their own departments, the requirement laid down in that provision, namely that a contracting authority be represented in the decision-making bodies of the controlled legal person, is not satisfied solely on the basis that the board of directors of that controlled legal person includes the representative of another contracting authority who is also part of the board of the first contracting authority.

| 3. | Article 12(4) of Directive 2014/24
  must be interpreted as meaning that a public contract, by which a contracting authority is entrusted with public service tasks that are part of a relationship of cooperation between other contracting authorities, is not excluded from that directive, where, in performing such tasks, the contracting authority to which those tasks were entrusted does not seek to attain objectives that it shares with the other contracting authorities but merely contributes to achieving objectives which only those other contracting authorities have in common. |
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3.

Article 12(4) of Directive 2014/24

must be interpreted as meaning that a public contract, by which a contracting authority is entrusted with public service tasks that are part of a relationship of cooperation between other contracting authorities, is not excluded from that directive, where, in performing such tasks, the contracting authority to which those tasks were entrusted does not seek to attain objectives that it shares with the other contracting authorities but merely contributes to achieving objectives which only those other contracting authorities have in common.

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(1)  OJ C 357, 6.9.2021.

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