# 62021CJ0292

JUDGMENT OF THE COURT (Third Chamber)

19 January 2023 (
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(Reference for a preliminary ruling – Directive 2006/123/EC – Services in the internal market – Article 2(2)(d) – Substantive scope – Service in the field of transport – Provision of road safety awareness and re-education courses for the recovery of driving licence points – Concession to operate a public service – Article 15 – Requirements – Division of the relevant territory into five lots – Quantitative and territorial limit on access to the activity concerned – Overriding reasons in the public interest – Justification – Road safety – Proportionality – Service of general economic interest)

In Case C‐292/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal Supremo (Supreme Court, Spain), made by decision of 6 April 2021, received at the Court on 7 May 2021, in the proceedings

Administracíon General del Estado,

Administracíon General del Estado,

Confederación Nacional de Autoescuelas (CNAE),

Confederación Nacional de Autoescuelas (CNAE),

UTE CNAE-ITT-FORMASTER-ECT

UTE CNAE-ITT-FORMASTER-ECT

v

Asociación para la Defensa de los Intereses Comunes de las Autoescuelas (Audica),

Asociación para la Defensa de los Intereses Comunes de las Autoescuelas (Audica),

Ministerio Fiscal,

Ministerio Fiscal,

THE COURT (Third Chamber),

composed of K. Jürimäe, President of the Chamber, M. Safjan, N. Piçarra, N. Jääskinen (Rapporteur) and M. Gavalec, Judges,

Advocate General: N. Emiliou,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 1 June 2022,

after considering the observations submitted on behalf of:

| – | the Confederación Nacional de Autoescuelas (CNAE) and UTE CNAE-ITT-FORMASTER-ECT, by A. Jiménez-Blanco Carrillo de Albornoz and J. Machado Cólogan, abogados, and A. R. de Palma Villalón, procurador, |
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–

the Confederación Nacional de Autoescuelas (CNAE) and UTE CNAE-ITT-FORMASTER-ECT, by A. Jiménez-Blanco Carrillo de Albornoz and J. Machado Cólogan, abogados, and A. R. de Palma Villalón, procurador,

| – | the Asociación para la Defensa de los Intereses Comunes de las Autoescuelas (Audica), by J. Cremades García, S. Rodríguez Bajón and A. Ruiz Ojeda, abogados, |
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–

the Asociación para la Defensa de los Intereses Comunes de las Autoescuelas (Audica), by J. Cremades García, S. Rodríguez Bajón and A. Ruiz Ojeda, abogados,

| – | the Spanish Government, by I. Herranz Elizalde and S. Jiménez García, acting as Agents, |
| --- | --- |

–

the Spanish Government, by I. Herranz Elizalde and S. Jiménez García, acting as Agents,

| – | the Czech Government, by M. Smolek and J. Vláčil, acting as Agents, |
| --- | --- |

–

the Czech Government, by M. Smolek and J. Vláčil, acting as Agents,

| – | the Netherlands Government, by M.K. Bulterman, M.H.S. Gijzen and J. Langer, acting as Agents, |
| --- | --- |

–

the Netherlands Government, by M.K. Bulterman, M.H.S. Gijzen and J. Langer, acting as Agents,

| – | the European Commission, by L. Armati, É. Gippini Fournier, M. Mataija and P. Němečková, acting as Agents, |
| --- | --- |

–

the European Commission, by L. Armati, É. Gippini Fournier, M. Mataija and P. Němečková, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 15 September 2022,

gives the following

Judgment

Judgment

| 1 | This request for a preliminary ruling concerns the interpretation of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36). |
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1

This request for a preliminary ruling concerns the interpretation of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36).

| 2 | The request has been made in proceedings between, on the one hand, the Administración General del Estado (General State Administration, Spain) (‘the General Administration’), the Confederación National de Autoescuelas (CNAE) and the unión temporal de empresas (temporary consortium of undertakings; UTE) formed by CNAE-ITT-FORMASTER-ECT (together, ‘the CNAE’) and, on the other hand, the Ministerio Fiscal (Public Prosecutor’s Office, Spain) and the Asociación para la Defensa de los Intereses Comunes de las Autoescuelas (Audica), concerning the legal framework applicable to the provision of road safety awareness and training courses for the recovery of driving licence points. |
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2

The request has been made in proceedings between, on the one hand, the Administración General del Estado (General State Administration, Spain) (‘the General Administration’), the Confederación National de Autoescuelas (CNAE) and the unión temporal de empresas (temporary consortium of undertakings; UTE) formed by CNAE-ITT-FORMASTER-ECT (together, ‘the CNAE’) and, on the other hand, the Ministerio Fiscal (Public Prosecutor’s Office, Spain) and the Asociación para la Defensa de los Intereses Comunes de las Autoescuelas (Audica), concerning the legal framework applicable to the provision of road safety awareness and training courses for the recovery of driving licence points.

unión temporal de empresas

Legal context

Legal context

European Union law

European Union law

Directive 2006/123

Directive 2006/123

| 3 | Recitals 33, 40 and 70 of Directive 2006/123 state:





  ‘(33) | The services covered by this Directive concern a wide variety of ever-changing activities ... The services covered are also services provided both to businesses and to consumers, such as ... the services of architects; distributive trades; the organisation of trade fairs; car rental; and travel agencies. ... Those activities may involve services requiring the proximity of provider and recipient, services requiring travel by the recipient or the provider and services which may be provided at a distance, including via the Internet. |
| --- | --- | --- |

3

Recitals 33, 40 and 70 of Directive 2006/123 state:

‘(33)

The services covered by this Directive concern a wide variety of ever-changing activities ... The services covered are also services provided both to businesses and to consumers, such as ... the services of architects; distributive trades; the organisation of trade fairs; car rental; and travel agencies. ... Those activities may involve services requiring the proximity of provider and recipient, services requiring travel by the recipient or the provider and services which may be provided at a distance, including via the Internet.

...

| (40) | The concept of “overriding reasons relating to the public interest” to which reference is made in certain provisions of this Directive has been developed by the Court ... in its case-law in relation to Articles 43 and 49 [TFEU] and may continue to evolve. The notion as recognised in the case-law of the Court ... covers at least the following grounds: ... road safety ... |
| --- | --- |

(40)

The concept of “overriding reasons relating to the public interest” to which reference is made in certain provisions of this Directive has been developed by the Court ... in its case-law in relation to Articles 43 and 49 [TFEU] and may continue to evolve. The notion as recognised in the case-law of the Court ... covers at least the following grounds: ... road safety ...

...

| (70) | For the purposes of this Directive, and without prejudice to Article 16 [EC], services may be considered to be services of general economic interest only if they are provided in application of a special task in the public interest entrusted to the provider by the Member State concerned. This assignment should be made by way of one or more acts, the form of which is determined by the Member State concerned, and should specify the precise nature of the special task.’ |
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(70)

For the purposes of this Directive, and without prejudice to Article 16 [EC], services may be considered to be services of general economic interest only if they are provided in application of a special task in the public interest entrusted to the provider by the Member State concerned. This assignment should be made by way of one or more acts, the form of which is determined by the Member State concerned, and should specify the precise nature of the special task.’

| 4 | Article 2 of Directive 2006/123 provides:
  ‘1.   This Directive shall apply to services supplied by providers established in a Member State.
  2.   This Directive shall not apply to the following activities:





  (a) | non-economic services of general interest; |
| --- | --- | --- |

4

Article 2 of Directive 2006/123 provides:

‘1.   This Directive shall apply to services supplied by providers established in a Member State.

2.   This Directive shall not apply to the following activities:

(a)

non-economic services of general interest;

...

| (d) | services in the field of transport, including port services, falling within the scope of Title V of the [EC] Treaty; |
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(d)

services in the field of transport, including port services, falling within the scope of Title V of the [EC] Treaty;

...’

| 5 | Under Article 4 of that directive:
  ‘For the purposes of this Directive, the following definitions apply:





  (1) | “service” means any self-employed economic activity, normally provided for remuneration, as referred to in Article 50 [EC]; |
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5

Under Article 4 of that directive:

‘For the purposes of this Directive, the following definitions apply:

(1)

“service” means any self-employed economic activity, normally provided for remuneration, as referred to in Article 50 [EC];

...

| (5) | “establishment” means the actual pursuit of an economic activity, as referred to in Article 43 [EC], by the provider for an indefinite period and through a stable infrastructure from where the business of providing services is actually carried out; |
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(5)

“establishment” means the actual pursuit of an economic activity, as referred to in Article 43 [EC], by the provider for an indefinite period and through a stable infrastructure from where the business of providing services is actually carried out;

...

| (8) | “overriding reasons relating to the public interest” means reasons recognised as such in the case-law of the Court ..., including the following grounds: ... public security; public safety; ...; |
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(8)

“overriding reasons relating to the public interest” means reasons recognised as such in the case-law of the Court ..., including the following grounds: ... public security; public safety; ...;

...’

| 6 | Chapter III of Directive 2006/123 is entitled ‘Freedom of establishment for providers’. Articles 9 to 13 of that directive form part of Section 1 – headed ‘Authorisations’ – of that chapter. |
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6

Chapter III of Directive 2006/123 is entitled ‘Freedom of establishment for providers’. Articles 9 to 13 of that directive form part of Section 1 – headed ‘Authorisations’ – of that chapter.

| 7 | Article 9 of the directive, entitled ‘Scope’, provides:
  ‘1.   Member States shall not make access to a service activity or the exercise thereof subject to an authorisation scheme unless the following conditions are satisfied:





  (a) | the authorisation scheme does not discriminate against the provider in question; |
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7

Article 9 of the directive, entitled ‘Scope’, provides:

‘1.   Member States shall not make access to a service activity or the exercise thereof subject to an authorisation scheme unless the following conditions are satisfied:

(a)

the authorisation scheme does not discriminate against the provider in question;

| (b) | the need for an authorisation scheme is justified by an overriding reason relating to the public interest; |
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(b)

the need for an authorisation scheme is justified by an overriding reason relating to the public interest;

| (c) | the objective pursued cannot be attained by means of a less restrictive measure, in particular because an a posteriori inspection would take place too late to be genuinely effective. |
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(c)

the objective pursued cannot be attained by means of a less restrictive measure, in particular because an a posteriori inspection would take place too late to be genuinely effective.

...

3.   This section shall not apply to those aspects of authorisation schemes which are governed directly or indirectly by other Community instruments.’

| 8 | Article 15 of that directive is set out in Section 2 of Chapter III thereof, headed ‘Requirements prohibited or subject to evaluation’. That article concerns the requirements which must be evaluated by the Member States and provides:
  ‘1.   Member States shall examine whether, under their legal system, any of the requirements listed in paragraph 2 are imposed and shall ensure that any such requirements are compatible with the conditions laid down in paragraph 3. Member States shall adapt their laws, regulations or administrative provisions so as to make them compatible with those conditions.
  2.   Member States shall examine whether their legal system makes access to a service activity or the exercise of it subject to compliance with any of the following non-discriminatory requirements:





  (a) | quantitative or territorial restrictions, in particular in the form of limits fixed according to population or of a minimum geographical distance between providers; |
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8

Article 15 of that directive is set out in Section 2 of Chapter III thereof, headed ‘Requirements prohibited or subject to evaluation’. That article concerns the requirements which must be evaluated by the Member States and provides:

‘1.   Member States shall examine whether, under their legal system, any of the requirements listed in paragraph 2 are imposed and shall ensure that any such requirements are compatible with the conditions laid down in paragraph 3. Member States shall adapt their laws, regulations or administrative provisions so as to make them compatible with those conditions.

2.   Member States shall examine whether their legal system makes access to a service activity or the exercise of it subject to compliance with any of the following non-discriminatory requirements:

(a)

quantitative or territorial restrictions, in particular in the form of limits fixed according to population or of a minimum geographical distance between providers;

...

3.   Member States shall verify that the requirements referred to in paragraph 2 satisfy the following conditions:

| (a) | non-discrimination: requirements must be neither directly nor indirectly discriminatory according to nationality nor, with regard to companies, according to the location of the registered office; |
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(a)

non-discrimination: requirements must be neither directly nor indirectly discriminatory according to nationality nor, with regard to companies, according to the location of the registered office;

| (b) | necessity: requirements must be justified by an overriding reason relating to the public interest; |
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(b)

necessity: requirements must be justified by an overriding reason relating to the public interest;

| (c) | proportionality: requirements must be suitable for securing the attainment of the objective pursued; they must not go beyond what is necessary to attain that objective and it must not be possible to replace those requirements with other, less restrictive measures which attain the same result. |
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(c)

proportionality: requirements must be suitable for securing the attainment of the objective pursued; they must not go beyond what is necessary to attain that objective and it must not be possible to replace those requirements with other, less restrictive measures which attain the same result.

4.   Paragraphs 1, 2 and 3 shall apply to legislation in the field of services of general economic interest only in so far as the application of these paragraphs does not obstruct the performance, in law or in fact, of the particular task assigned to them.

...’

Directive 2014/23/EU

Directive 2014/23/EU

| 9 | Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p. 1) lays down, in accordance with Article 1(1) thereof, the rules applicable to procedures for the award of concession contracts by contracting authorities and contracting entities, where their estimated value is not below the thresholds laid down in Article 8 of that directive. |
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9

Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p. 1) lays down, in accordance with Article 1(1) thereof, the rules applicable to procedures for the award of concession contracts by contracting authorities and contracting entities, where their estimated value is not below the thresholds laid down in Article 8 of that directive.

| 10 | Article 5 of that directive provides:
  ‘For the purposes of this Directive, the following definitions apply:





  (1) | “concessions” means works or services concessions, as defined in points (a) and (b):
  ...





  (b) | “services concession” means a contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or contracting entities entrust the provision and the management of services other than the execution of works referred to in point (a) to one or more economic operators, the consideration of which consists either solely in the right to exploit the services that are the subject of the contract or in that right together with payment. |
| --- | --- | --- | --- |

10

Article 5 of that directive provides:

‘For the purposes of this Directive, the following definitions apply:

(1)

“concessions” means works or services concessions, as defined in points (a) and (b):

...

(b)

“services concession” means a contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or contracting entities entrust the provision and the management of services other than the execution of works referred to in point (a) to one or more economic operators, the consideration of which consists either solely in the right to exploit the services that are the subject of the contract or in that right together with payment.

...’

| 11 | Article 8 of that directive sets the thresholds and methods for calculating the estimated value of concessions. In accordance with Article 8(1), the directive applies to concessions the value of which is equal to or greater than EUR 5186000. |
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11

Article 8 of that directive sets the thresholds and methods for calculating the estimated value of concessions. In accordance with Article 8(1), the directive applies to concessions the value of which is equal to or greater than EUR 5186000.

| 12 | In accordance with Article 51(1) of Directive 2014/23, the Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with that directive by 18 April 2016 at the latest. |
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12

In accordance with Article 51(1) of Directive 2014/23, the Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with that directive by 18 April 2016 at the latest.

| 13 | It is apparent from the second paragraph of Article 54 of that directive that the latter does not apply to the award of concessions which were the subject of a tender or awarded before 17 April 2014. |
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13

It is apparent from the second paragraph of Article 54 of that directive that the latter does not apply to the award of concessions which were the subject of a tender or awarded before 17 April 2014.

Spanish law

Spanish law

| 14 | Directive 2006/123 was transposed into Spanish law by Ley 17/2009 sobre el libre acceso a las actividades de servicios y su ejercicio (Law 17/2009 on free access to service activities and the exercise thereof) of 23 November 2009 (BOE No 283 of 24 November 2009, p. 99570). Article 3 of that law defines ‘service’ as ‘any self-employed economic activity, normally carried out for remuneration, referred to in Article 50 [EC]’. It is apparent, moreover, from Article 5 of that law that access to a service activity may be subject to authorisation when three conditions are met: those of non-discrimination, necessity and proportionality. |
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14

Directive 2006/123 was transposed into Spanish law by Ley 17/2009 sobre el libre acceso a las actividades de servicios y su ejercicio (Law 17/2009 on free access to service activities and the exercise thereof) of 23 November 2009 (BOE No 283 of 24 November 2009, p. 99570). Article 3 of that law defines ‘service’ as ‘any self-employed economic activity, normally carried out for remuneration, referred to in Article 50 [EC]’. It is apparent, moreover, from Article 5 of that law that access to a service activity may be subject to authorisation when three conditions are met: those of non-discrimination, necessity and proportionality.

| 15 | Under Ley 17/2005 por la que se regula el permiso y la licencia de conducción por puntos y se modifica el texto articulado de la ley sobre tráfico, circulación de vehículos a motor y seguridad vial (Law 17/2005 on driving permits and licences with points, and amending the Law on traffic, motor vehicle use and road safety) of 19 July 2005 (BOE No 172 of 20 July 2005, p. 25781), the contract to run road safety awareness and training courses for the recovery of driving licence points is to be awarded by means of a public service concession. |
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15

Under Ley 17/2005 por la que se regula el permiso y la licencia de conducción por puntos y se modifica el texto articulado de la ley sobre tráfico, circulación de vehículos a motor y seguridad vial (Law 17/2005 on driving permits and licences with points, and amending the Law on traffic, motor vehicle use and road safety) of 19 July 2005 (BOE No 172 of 20 July 2005, p. 25781), the contract to run road safety awareness and training courses for the recovery of driving licence points is to be awarded by means of a public service concession.

| 16 | Orden INT/2596/2005 por la que se regulan los cursos de sensibilización y reeducación vial para los titulares de un permiso o licencia de conducción (Order INT/2596/2005 on road safety awareness and training courses for holders of a driving licence or permit), of 28 July 2005 (BOE No 190 of 10 August 2005, p. 28083), implements the law referred to in the preceding paragraph of the present judgment. In accordance with paragraph 12 of that order, the control and inspection of those road safety awareness and training courses are to be carried out in accordance with the technical requirements set out in the public service concession contract concerned. However, paragraph 12 states that the Dirección General de Tráfico (Directorate-General for Traffic, Spain) may, directly or through its departments, examine courses for the partial recovery of driving licence points or the recovery of driving permits or licences, and inspect the centres which provide those courses. |
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16

Orden INT/2596/2005 por la que se regulan los cursos de sensibilización y reeducación vial para los titulares de un permiso o licencia de conducción (Order INT/2596/2005 on road safety awareness and training courses for holders of a driving licence or permit), of 28 July 2005 (BOE No 190 of 10 August 2005, p. 28083), implements the law referred to in the preceding paragraph of the present judgment. In accordance with paragraph 12 of that order, the control and inspection of those road safety awareness and training courses are to be carried out in accordance with the technical requirements set out in the public service concession contract concerned. However, paragraph 12 states that the Dirección General de Tráfico (Directorate-General for Traffic, Spain) may, directly or through its departments, examine courses for the partial recovery of driving licence points or the recovery of driving permits or licences, and inspect the centres which provide those courses.

The dispute in the main proceedings and the question referred for a preliminary ruling

The dispute in the main proceedings and the question referred for a preliminary ruling

| 17 | The Dirección General de Tráfico (Directorate-General for Traffic) published a call for tenders entitled ‘Concession for the management of road safety awareness and training courses for the recovery of driving licence points: five lots’. That call for tenders concerned courses to be completed by drivers in order to recover driving licence points lost as a result of road traffic offences. |
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17

The Dirección General de Tráfico (Directorate-General for Traffic) published a call for tenders entitled ‘Concession for the management of road safety awareness and training courses for the recovery of driving licence points: five lots’. That call for tenders concerned courses to be completed by drivers in order to recover driving licence points lost as a result of road traffic offences.

| 18 | The contract which was the subject of that call for tenders was set out as a public service concession contract. For that purpose, the national territory, apart from Catalonia and the Basque Country, was divided into five zones, with one of the five procurement lots corresponding to each one. At the end of the procedure, the successful tenderer for each of the lots was the sole entity authorised to provide those road safety awareness and training courses in the relevant geographical area. |
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18

The contract which was the subject of that call for tenders was set out as a public service concession contract. For that purpose, the national territory, apart from Catalonia and the Basque Country, was divided into five zones, with one of the five procurement lots corresponding to each one. At the end of the procedure, the successful tenderer for each of the lots was the sole entity authorised to provide those road safety awareness and training courses in the relevant geographical area.

| 19 | Audica challenged the call for tenders at issue before the Tribunal Administrativo Central de Recursos Contractuales (Central Administrative Court for Contractual Appeals, Spain), on the ground that the award of the contract to run such road safety awareness and training courses by means of public service concession contracts was contrary to the freedom to provide services. |
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19

Audica challenged the call for tenders at issue before the Tribunal Administrativo Central de Recursos Contractuales (Central Administrative Court for Contractual Appeals, Spain), on the ground that the award of the contract to run such road safety awareness and training courses by means of public service concession contracts was contrary to the freedom to provide services.

| 20 | By decision of 23 January 2015, the Tribunal Administrativo Central de Recursos Contractuales (Central Administrative Court for Contractual Appeals) dismissed the action brought by Audica. The latter subsequently brought an administrative appeal against that decision before the Sala de lo Contencioso-Administrativo de la Audiencia Nacional (Administrative Chamber of the National High Court, Spain). |
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20

By decision of 23 January 2015, the Tribunal Administrativo Central de Recursos Contractuales (Central Administrative Court for Contractual Appeals) dismissed the action brought by Audica. The latter subsequently brought an administrative appeal against that decision before the Sala de lo Contencioso-Administrativo de la Audiencia Nacional (Administrative Chamber of the National High Court, Spain).

| 21 | In those proceedings, the General Administration and the CNAE appeared as defendants, bearing in mind that the CNAE had participated in the tendering procedure concerned and that the Public Prosecutor intervened in support of Audica. |
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21

In those proceedings, the General Administration and the CNAE appeared as defendants, bearing in mind that the CNAE had participated in the tendering procedure concerned and that the Public Prosecutor intervened in support of Audica.

| 22 | By judgment of 28 November 2018, that court upheld that administrative action and annulled the decision of 23 January 2015 of the Tribunal Administrativo Central de Recursos Contractuales (Central Administrative Court for Contractual Appeals), as well as the call for tenders at issue in the main proceedings. According to that court, although road safety awareness and training courses for the recovery of points on driving licences constitute a service of general economic interest within the meaning of Article 14 TFEU, the obligation to grant a public service concession is disproportionate and cannot be justified. That court ruled that there are, in particular, other means by which it is possible to achieve the same result, without calling into question the competition between the service providers able to engage in the activity concerned. |
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22

By judgment of 28 November 2018, that court upheld that administrative action and annulled the decision of 23 January 2015 of the Tribunal Administrativo Central de Recursos Contractuales (Central Administrative Court for Contractual Appeals), as well as the call for tenders at issue in the main proceedings. According to that court, although road safety awareness and training courses for the recovery of points on driving licences constitute a service of general economic interest within the meaning of Article 14 TFEU, the obligation to grant a public service concession is disproportionate and cannot be justified. That court ruled that there are, in particular, other means by which it is possible to achieve the same result, without calling into question the competition between the service providers able to engage in the activity concerned.

| 23 | The General Administration and the CNAE brought an appeal on a point of law against that judgment before the Tribunal Supremo (Supreme Court, Spain), which is the referring court. |
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23

The General Administration and the CNAE brought an appeal on a point of law against that judgment before the Tribunal Supremo (Supreme Court, Spain), which is the referring court.

| 24 | The referring court shares the doubts expressed before it by the Public Prosecutor’s Office as to the compatibility, in particular with Directive 2006/123, of the award of the contract to run road safety awareness and training courses for the recovery of points on driving licences by means of a public service concession. However, that court considers that the argument put forward by the General Administration, according to which it is not possible to make a meaningful comparison between the initial course provided by driving schools and those road safety awareness and training courses, is not irrelevant. There is a qualitative difference between those two types of course. Unlike the road safety awareness and training courses, the initial training course is not aimed at persons who have contravened road traffic provisions. In order to obtain a driving licence, it is also necessary to pass an examination which is not administered by the driving schools themselves. |
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24

The referring court shares the doubts expressed before it by the Public Prosecutor’s Office as to the compatibility, in particular with Directive 2006/123, of the award of the contract to run road safety awareness and training courses for the recovery of points on driving licences by means of a public service concession. However, that court considers that the argument put forward by the General Administration, according to which it is not possible to make a meaningful comparison between the initial course provided by driving schools and those road safety awareness and training courses, is not irrelevant. There is a qualitative difference between those two types of course. Unlike the road safety awareness and training courses, the initial training course is not aimed at persons who have contravened road traffic provisions. In order to obtain a driving licence, it is also necessary to pass an examination which is not administered by the driving schools themselves.

| 25 | That court states that, under the current Spanish legislation, driving schools are subject to simple administrative authorisation. The fact that driving schools are subject to supervision by the administration limits neither access to the activity concerned nor the number of driving schools. Thus, if the analogy between the initial training course and road safety awareness and training courses were to be accepted, it would then be legitimate to question why the Spanish legislature did not submit the provision of such courses to a simple administrative authorisation scheme, instead of classifying it as a public service to be provided by means of a concession. |
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25

That court states that, under the current Spanish legislation, driving schools are subject to simple administrative authorisation. The fact that driving schools are subject to supervision by the administration limits neither access to the activity concerned nor the number of driving schools. Thus, if the analogy between the initial training course and road safety awareness and training courses were to be accepted, it would then be legitimate to question why the Spanish legislature did not submit the provision of such courses to a simple administrative authorisation scheme, instead of classifying it as a public service to be provided by means of a concession.

| 26 | In those circumstances, the Tribunal Supremo (Supreme Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
  ‘Is a national provision pursuant to which contracts for the provision of road-safety awareness and training courses for the purposes of the recovery of driving licence points must be awarded by means of a public service concession compatible with [Directive 2006/123], or, as the case may be, with other provisions or principles of European Union law?’ |
| --- | --- |

26

In those circumstances, the Tribunal Supremo (Supreme Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Is a national provision pursuant to which contracts for the provision of road-safety awareness and training courses for the purposes of the recovery of driving licence points must be awarded by means of a public service concession compatible with [Directive 2006/123], or, as the case may be, with other provisions or principles of European Union law?’

Consideration of the question referred

Consideration of the question referred

| 27 | By its question, the referring court asks, in essence, whether EU law, and in particular Article 15 of Directive 2006/123, must be interpreted as precluding national legislation under which contracts for the provision of road safety awareness and training courses for the recovery of driving licence points must be awarded by means of a public service concession. |
| --- | --- |

27

By its question, the referring court asks, in essence, whether EU law, and in particular Article 15 of Directive 2006/123, must be interpreted as precluding national legislation under which contracts for the provision of road safety awareness and training courses for the recovery of driving licence points must be awarded by means of a public service concession.

| 28 | In order to give a meaningful answer to that question, it is necessary to ascertain, first, whether the provision of road safety awareness and training courses for the recovery of driving licence points falls within the material scope of Directive 2006/123. |
| --- | --- |

28

In order to give a meaningful answer to that question, it is necessary to ascertain, first, whether the provision of road safety awareness and training courses for the recovery of driving licence points falls within the material scope of Directive 2006/123.

| 29 | In that regard, it is important to recall, first of all, that Directive 2006/123 applies to services supplied by providers established in a Member State. Article 4(1) of that directive states that, for the purposes of the directive, a ‘service’ means any self-employed economic activity, normally provided for remuneration. |
| --- | --- |

29

In that regard, it is important to recall, first of all, that Directive 2006/123 applies to services supplied by providers established in a Member State. Article 4(1) of that directive states that, for the purposes of the directive, a ‘service’ means any self-employed economic activity, normally provided for remuneration.

| 30 | In the present case, it must be held, as the referring court has done, that the provision of road safety awareness and training courses for the recovery of driving licence points by means of a concession is covered by that concept of ‘service’, since a concession contract allows the concessionaire to provide the courses concerned for consideration. That activity relates, moreover, to a fixed establishment from which the services are actually supplied. |
| --- | --- |

30

In the present case, it must be held, as the referring court has done, that the provision of road safety awareness and training courses for the recovery of driving licence points by means of a concession is covered by that concept of ‘service’, since a concession contract allows the concessionaire to provide the courses concerned for consideration. That activity relates, moreover, to a fixed establishment from which the services are actually supplied.

| 31 | On that basis, in accordance with the definition of ‘establishment’ laid down in Article 4(5) of Directive 2006/123, and as the Advocate General essentially states in point 23 of his Opinion, that activity falls within the scope of the provisions of that directive on freedom of establishment. |
| --- | --- |

31

On that basis, in accordance with the definition of ‘establishment’ laid down in Article 4(5) of Directive 2006/123, and as the Advocate General essentially states in point 23 of his Opinion, that activity falls within the scope of the provisions of that directive on freedom of establishment.

| 32 | Next, in accordance with Article 2(2)(d) of Directive 2006/123, services in the field of transport are excluded from the material scope of that directive, although, pursuant to Article 58(1) TFEU, freedom to provide services in the field of transport is specifically governed by Title VI of the FEU Treaty. |
| --- | --- |

32

Next, in accordance with Article 2(2)(d) of Directive 2006/123, services in the field of transport are excluded from the material scope of that directive, although, pursuant to Article 58(1) TFEU, freedom to provide services in the field of transport is specifically governed by Title VI of the FEU Treaty.

| 33 | It is settled case-law that the concept of ‘services in the field of transport’ covers not only any physical act of moving persons or goods from one place to another by means of a vehicle, aircraft or waterborne vessel, but also any service inherently linked to such an act (see, to that effect, judgments of 20 December 2017, Asociación Profesional Elite Taxi, C‐434/15, EU:C:2017:981, paragraph 41, and of 15 October 2015, Grupo Itevelesa and Others, C‐168/14, EU:C:2015:685, paragraph 46). |
| --- | --- |

33

It is settled case-law that the concept of ‘services in the field of transport’ covers not only any physical act of moving persons or goods from one place to another by means of a vehicle, aircraft or waterborne vessel, but also any service inherently linked to such an act (see, to that effect, judgments of 20 December 2017, Asociación Profesional Elite Taxi, C‐434/15, EU:C:2017:981, paragraph 41, and of 15 October 2015, Grupo Itevelesa and Others, C‐168/14, EU:C:2015:685, paragraph 46).

| 34 | In that context, as the Advocate General observes in point 31 of his Opinion, a distinction must be made between, on the one hand, services that are intrinsically (or inherently) linked to the physical act of moving persons or goods from one place to another by a means of transport and, on the other hand, services which fall within the scope of Directive 2006/123, as their primary purpose is not to convey persons or goods. |
| --- | --- |

34

In that context, as the Advocate General observes in point 31 of his Opinion, a distinction must be made between, on the one hand, services that are intrinsically (or inherently) linked to the physical act of moving persons or goods from one place to another by a means of transport and, on the other hand, services which fall within the scope of Directive 2006/123, as their primary purpose is not to convey persons or goods.

| 35 | In order to draw such a distinction, account must be taken of the main purpose of the service concerned (see, to that effect, judgment of 1 October 2015, Trijber and Harmsen, C‐340/14 and C‐341/14, EU:C:2015:641, paragraph 51). |
| --- | --- |

35

In order to draw such a distinction, account must be taken of the main purpose of the service concerned (see, to that effect, judgment of 1 October 2015, Trijber and Harmsen, C‐340/14 and C‐341/14, EU:C:2015:641, paragraph 51).

| 36 | Thus, the scope of Directive 2006/123, in accordance with recital 33 thereof, covers, inter alia, car rental services, travel agencies and consumer services in the field of tourism, including tour guides. |
| --- | --- |

36

Thus, the scope of Directive 2006/123, in accordance with recital 33 thereof, covers, inter alia, car rental services, travel agencies and consumer services in the field of tourism, including tour guides.

| 37 | Furthermore, it is apparent from point 2.1.2 of the Handbook on implementation of the Services Directive that the exception referred to in Article 2(2)(d) of Directive 2006/123 should not extend, inter alia, to driving schools services. |
| --- | --- |

37

Furthermore, it is apparent from point 2.1.2 of the Handbook on implementation of the Services Directive that the exception referred to in Article 2(2)(d) of Directive 2006/123 should not extend, inter alia, to driving schools services.

| 38 | As the Advocate General observes in point 34 of his Opinion, like the driving schools services referred to in the preceding paragraph, the main purpose of the road safety awareness and training courses for the purposes of the recovery of driving licence points is for recipients to be trained in how to be safe and responsible drivers, and not to be transported. |
| --- | --- |

38

As the Advocate General observes in point 34 of his Opinion, like the driving schools services referred to in the preceding paragraph, the main purpose of the road safety awareness and training courses for the purposes of the recovery of driving licence points is for recipients to be trained in how to be safe and responsible drivers, and not to be transported.

| 39 | Admittedly, as the Netherlands Government has pointed out, the Court has held that the activities of vehicle roadworthiness testing centres come under the exception referred to in Article 2(2)(d) of Directive 2006/123 (judgment of 15 October 2015, Grupo Itevelesa and Others, C‐168/14, EU:C:2015:685, paragraph 54). |
| --- | --- |

39

Admittedly, as the Netherlands Government has pointed out, the Court has held that the activities of vehicle roadworthiness testing centres come under the exception referred to in Article 2(2)(d) of Directive 2006/123 (judgment of 15 October 2015, Grupo Itevelesa and Others, C‐168/14, EU:C:2015:685, paragraph 54).

| 40 | Those activities are, however, a precondition of and indispensable to the pursuit of the principal activity which is transport. However, unlike such activities, which are performed directly on a vehicle as a means of transport, the legal rules on how a driving licence is to be obtained or retained determine the conditions under which a person may drive a certain type of means of transport and are therefore, as such, linked to the person, rather than to the vehicle itself. |
| --- | --- |

40

Those activities are, however, a precondition of and indispensable to the pursuit of the principal activity which is transport. However, unlike such activities, which are performed directly on a vehicle as a means of transport, the legal rules on how a driving licence is to be obtained or retained determine the conditions under which a person may drive a certain type of means of transport and are therefore, as such, linked to the person, rather than to the vehicle itself.

| 41 | It must therefore be found that the provision of road safety awareness and training courses for the recovery of driving licence points cannot come under the exception referred to in Article 2(2)(d) of Directive 2006/123. |
| --- | --- |

41

It must therefore be found that the provision of road safety awareness and training courses for the recovery of driving licence points cannot come under the exception referred to in Article 2(2)(d) of Directive 2006/123.

| 42 | In the second place, it is necessary to ascertain whether another instrument of EU law such as Directive 2014/23 – the applicability of which was the subject of exchanges of argument between the parties to the main proceedings at the hearing before the Court – has an effect on the applicability of Directive 2006/123 in circumstances such as those in the main proceedings. |
| --- | --- |

42

In the second place, it is necessary to ascertain whether another instrument of EU law such as Directive 2014/23 – the applicability of which was the subject of exchanges of argument between the parties to the main proceedings at the hearing before the Court – has an effect on the applicability of Directive 2006/123 in circumstances such as those in the main proceedings.

| 43 | In accordance with Article 9(3) of Directive 2006/123, Articles 9 to 13 thereof do not apply to those aspects of authorisation schemes which are governed directly or indirectly by other EU instruments, such as Directive 2014/23. |
| --- | --- |

43

In accordance with Article 9(3) of Directive 2006/123, Articles 9 to 13 thereof do not apply to those aspects of authorisation schemes which are governed directly or indirectly by other EU instruments, such as Directive 2014/23.

| 44 | The applicability of that directive presupposes that several cumulative conditions are satisfied. |
| --- | --- |

44

The applicability of that directive presupposes that several cumulative conditions are satisfied.

| 45 | As regards, first of all, the material scope of Directive 2014/23, the service in question must, in accordance with Article 1(1) thereof, take the form of a concession, the ‘services concession’ being defined, in Article 5(1)(b) of that directive, as a ‘contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or contracting entities entrust the provision and the management of services ... to one or more economic operators, the consideration of which consists either solely in the right to exploit the services that are the subject of the contract or in that right together with payment’. |
| --- | --- |

45

As regards, first of all, the material scope of Directive 2014/23, the service in question must, in accordance with Article 1(1) thereof, take the form of a concession, the ‘services concession’ being defined, in Article 5(1)(b) of that directive, as a ‘contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or contracting entities entrust the provision and the management of services ... to one or more economic operators, the consideration of which consists either solely in the right to exploit the services that are the subject of the contract or in that right together with payment’.

| 46 | In the present case, it is apparent from the information before the Court that road safety awareness and training courses for the recovery of driving licence points must be provided under a public service concession which covers a geographical area and which relates to the provision of a specific service in that area. Furthermore, such a concession is intended to transfer the right to provide the courses concerned from the contracting authority to each concessionaire. It must therefore be held that the public service concessions at issue in the main proceedings fall within the material scope of Directive 2014/23. |
| --- | --- |

46

In the present case, it is apparent from the information before the Court that road safety awareness and training courses for the recovery of driving licence points must be provided under a public service concession which covers a geographical area and which relates to the provision of a specific service in that area. Furthermore, such a concession is intended to transfer the right to provide the courses concerned from the contracting authority to each concessionaire. It must therefore be held that the public service concessions at issue in the main proceedings fall within the material scope of Directive 2014/23.

| 47 | As regards, next, the applicability ratione temporis of Directive 2014/23, it is apparent from the second paragraph of Article 54 thereof that the concession in question is to have been the subject of a tender or is to have been awarded after 17 April 2014. |
| --- | --- |

47

As regards, next, the applicability ratione temporis of Directive 2014/23, it is apparent from the second paragraph of Article 54 thereof that the concession in question is to have been the subject of a tender or is to have been awarded after 17 April 2014.

ratione temporis

| 48 | It should be noted that the CNAE and the Spanish Government submit that the concessions at issue in the main proceedings were the subject of a tender submitted before 18 April 2016, that date being, in accordance with Article 51(1) of Directive 2014/23, the date on which the period for transposing that directive into national law expired. That tender was therefore submitted on a date when the national legal rules previously applicable were still in force and on which that directive had not yet been incorporated into that law. |
| --- | --- |

48

It should be noted that the CNAE and the Spanish Government submit that the concessions at issue in the main proceedings were the subject of a tender submitted before 18 April 2016, that date being, in accordance with Article 51(1) of Directive 2014/23, the date on which the period for transposing that directive into national law expired. That tender was therefore submitted on a date when the national legal rules previously applicable were still in force and on which that directive had not yet been incorporated into that law.

| 49 | In that connection, in the case where a tender had been excluded from the procedure for the award of a public contract before the expiry of the period for transposition of the relevant directive and before the latter had been incorporated into national law, the Court held that it would be contrary to the principle of legal certainty to apply that directive, given that the decision against which an infringement of EU law is alleged had been taken before that date (judgment of 15 October 2009, Hochtief and Linde-Kca-Dresden, C‐138/08, EU:C:2009:627, paragraphs 28 and 29 and the case-law cited). |
| --- | --- |

49

In that connection, in the case where a tender had been excluded from the procedure for the award of a public contract before the expiry of the period for transposition of the relevant directive and before the latter had been incorporated into national law, the Court held that it would be contrary to the principle of legal certainty to apply that directive, given that the decision against which an infringement of EU law is alleged had been taken before that date (judgment of 15 October 2009, Hochtief and Linde-Kca-Dresden, C‐138/08, EU:C:2009:627, paragraphs 28 and 29 and the case-law cited).

| 50 | In those circumstances, subject to the checks to be carried out by the referring court, Directive 2014/23 does not appear to be applicable ratione temporis to the dispute in the main proceedings, inasmuch as the concessions at issue in the main proceedings appear to have been the subject of a tender before the expiry of the period for transposition of that directive and the latter had not yet been incorporated into Spanish law. |
| --- | --- |

50

In those circumstances, subject to the checks to be carried out by the referring court, Directive 2014/23 does not appear to be applicable ratione temporis to the dispute in the main proceedings, inasmuch as the concessions at issue in the main proceedings appear to have been the subject of a tender before the expiry of the period for transposition of that directive and the latter had not yet been incorporated into Spanish law.

ratione temporis

| 51 | Lastly, it must be pointed out that, even if Directive 2014/23 were to apply ratione temporis to the dispute in the main proceedings, it would still be necessary for the concession contract concerned to have a value equal to or greater than EUR 5186000, in accordance with Article 8(1) of that directive. |
| --- | --- |

51

Lastly, it must be pointed out that, even if Directive 2014/23 were to apply ratione temporis to the dispute in the main proceedings, it would still be necessary for the concession contract concerned to have a value equal to or greater than EUR 5186000, in accordance with Article 8(1) of that directive.

ratione temporis

| 52 | While it is ultimately for the referring court to ascertain whether that condition is satisfied in the present case, it should be observed that, on the basis of the information provided by the CNAE, the Spanish Government and the European Commission at the hearing, the value of the contract at issue in the main proceedings appears to be lower than that amount. |
| --- | --- |

52

While it is ultimately for the referring court to ascertain whether that condition is satisfied in the present case, it should be observed that, on the basis of the information provided by the CNAE, the Spanish Government and the European Commission at the hearing, the value of the contract at issue in the main proceedings appears to be lower than that amount.

| 53 | It should therefore be assumed that Directive 2014/23 does not apply to the facts of the dispute in the main proceedings. It follows that Chapter III of Directive 2006/123 is applicable even, as is the case in the present proceedings, to a purely domestic situation, that is to say, a situation in which all the relevant elements are confined to a single Member State (see, to that effect, judgment of 22 September 2020, Cali Apartments, C‐724/18 and C‐727/18, EU:C:2020:743, paragraphs 55 and 56). |
| --- | --- |

53

It should therefore be assumed that Directive 2014/23 does not apply to the facts of the dispute in the main proceedings. It follows that Chapter III of Directive 2006/123 is applicable even, as is the case in the present proceedings, to a purely domestic situation, that is to say, a situation in which all the relevant elements are confined to a single Member State (see, to that effect, judgment of 22 September 2020, Cali Apartments, C‐724/18 and C‐727/18, EU:C:2020:743, paragraphs 55 and 56).

| 54 | It is therefore necessary to examine, in the third place, whether national legislation, under which the award of the contract to run road safety awareness and training courses for the purposes of the recovery of driving licence points must be made by means of a public service concession, is compatible with Article 15 of Directive 2006/123. |
| --- | --- |

54

It is therefore necessary to examine, in the third place, whether national legislation, under which the award of the contract to run road safety awareness and training courses for the purposes of the recovery of driving licence points must be made by means of a public service concession, is compatible with Article 15 of Directive 2006/123.

| 55 | That article, which is set out in Chapter III thereof, relates to the requirements laid down by the legal system of a Member State which are subject to its evaluation. It is consequently necessary to determine, first of all, whether such legislation comes under one of the categories of ‘requirements’ referred to in that article. |
| --- | --- |

55

That article, which is set out in Chapter III thereof, relates to the requirements laid down by the legal system of a Member State which are subject to its evaluation. It is consequently necessary to determine, first of all, whether such legislation comes under one of the categories of ‘requirements’ referred to in that article.

| 56 | In the present case, it is apparent from the request for a preliminary ruling that, in accordance with the legislation at issue in the main proceedings, only one concessionaire is authorised to provide road safety awareness and training courses for the purposes of the recovery of driving licence points in each of the previously defined five geographical areas across the national territory concerned, with the exception of Catalonia and the Basque Country. Once the contract concerned has been awarded, the concessionaire exercises exclusive control over the area for which it holds a public service concession, since no other service provider is permitted to supply such services in that area. |
| --- | --- |

56

In the present case, it is apparent from the request for a preliminary ruling that, in accordance with the legislation at issue in the main proceedings, only one concessionaire is authorised to provide road safety awareness and training courses for the purposes of the recovery of driving licence points in each of the previously defined five geographical areas across the national territory concerned, with the exception of Catalonia and the Basque Country. Once the contract concerned has been awarded, the concessionaire exercises exclusive control over the area for which it holds a public service concession, since no other service provider is permitted to supply such services in that area.

| 57 | It is apparent from Article 15(1) and (2)(a) of Directive 2006/123 that quantitative or territorial restrictions on the exercise of a service activity constitute requirements within the meaning of that directive where they impose, inter alia, limits on the number of operators authorised to establish themselves in a particular Member State or a limit relating to compliance with a minimum geographical distance between providers. |
| --- | --- |

57

It is apparent from Article 15(1) and (2)(a) of Directive 2006/123 that quantitative or territorial restrictions on the exercise of a service activity constitute requirements within the meaning of that directive where they impose, inter alia, limits on the number of operators authorised to establish themselves in a particular Member State or a limit relating to compliance with a minimum geographical distance between providers.

| 58 | In view of the description of the national legislation concerned, referred to in paragraph 56 above, it must be held that this constitutes both a quantitative limit and a territorial limit within the meaning of Article 15(2)(a) of Directive 2006/123. |
| --- | --- |

58

In view of the description of the national legislation concerned, referred to in paragraph 56 above, it must be held that this constitutes both a quantitative limit and a territorial limit within the meaning of Article 15(2)(a) of Directive 2006/123.

| 59 | Such a restriction on the freedom of establishment is authorised only if it is compatible with the conditions set out in Article 15(3) of that directive. It must be non-discriminatory, necessary and proportionate. |
| --- | --- |

59

Such a restriction on the freedom of establishment is authorised only if it is compatible with the conditions set out in Article 15(3) of that directive. It must be non-discriminatory, necessary and proportionate.

| 60 | As regards, in the first place, compliance with the condition of ‘non-discrimination’ set out in Article 15(3)(a) of Directive 2006/123, suffice it to note, as did all the parties that submitted observations, that the national legislation at issue applies without discrimination to all providers wishing to supply the service at issue in the main proceedings. |
| --- | --- |

60

As regards, in the first place, compliance with the condition of ‘non-discrimination’ set out in Article 15(3)(a) of Directive 2006/123, suffice it to note, as did all the parties that submitted observations, that the national legislation at issue applies without discrimination to all providers wishing to supply the service at issue in the main proceedings.

| 61 | In so far as concerns, in the second place, the question whether that measure is justified by an overriding reason relating to the public interest, within the meaning of Article 15(3)(b) of Directive 2006/123, it is apparent from the request for a preliminary ruling that that measure is designed to improve road safety by facilitating access to training centres for drivers who have lost points on their driving licence. That is, in accordance with Article 4(8) of Directive 2006/123, read in the light of recital 40 thereof and the settled case-law of the Court, an overriding reason relating to the public interest capable of justifying restrictions on the freedom of establishment (see, to that effect, judgment of 15 October 2015, Grupo Itevelesa and Others, C‐168/14, EU:C:2015:685, paragraph 74 and the case-law cited). |
| --- | --- |

61

In so far as concerns, in the second place, the question whether that measure is justified by an overriding reason relating to the public interest, within the meaning of Article 15(3)(b) of Directive 2006/123, it is apparent from the request for a preliminary ruling that that measure is designed to improve road safety by facilitating access to training centres for drivers who have lost points on their driving licence. That is, in accordance with Article 4(8) of Directive 2006/123, read in the light of recital 40 thereof and the settled case-law of the Court, an overriding reason relating to the public interest capable of justifying restrictions on the freedom of establishment (see, to that effect, judgment of 15 October 2015, Grupo Itevelesa and Others, C‐168/14, EU:C:2015:685, paragraph 74 and the case-law cited).

| 62 | As regards, in the third place, the question whether such a measure is proportionate to the general interest objective, within the meaning of Article 15(3)(c) of Directive 2006/123, it must be observed that a national measure restricting freedom of establishment which pursues a general interest objective may be allowed only if it is appropriate to ensuring the attainment of that objective and does not go beyond what is necessary to attain that objective (see, by analogy, judgment of 1 October 2015, Trijber and Harmsen, C‐340/14 and C‐341/14, EU:C:2015:641, paragraph 70). |
| --- | --- |

62

As regards, in the third place, the question whether such a measure is proportionate to the general interest objective, within the meaning of Article 15(3)(c) of Directive 2006/123, it must be observed that a national measure restricting freedom of establishment which pursues a general interest objective may be allowed only if it is appropriate to ensuring the attainment of that objective and does not go beyond what is necessary to attain that objective (see, by analogy, judgment of 1 October 2015, Trijber and Harmsen, C‐340/14 and C‐341/14, EU:C:2015:641, paragraph 70).

| 63 | It is ultimately for the national court, which has sole jurisdiction to assess the facts of the dispute in the main proceedings, to determine whether a measure satisfies those two requirements. However, in order to provide answers of use to the referring court, the Court may provide guidance based on the documents relating to the main proceedings and on the written and oral observations which have been submitted to it, in order to enable that court to give judgment (see, to that effect, judgment of 1 October 2015, Trijber and Harmsen, C‐340/14 and C‐341/14, EU:C:2015:641, paragraph 70). |
| --- | --- |

63

It is ultimately for the national court, which has sole jurisdiction to assess the facts of the dispute in the main proceedings, to determine whether a measure satisfies those two requirements. However, in order to provide answers of use to the referring court, the Court may provide guidance based on the documents relating to the main proceedings and on the written and oral observations which have been submitted to it, in order to enable that court to give judgment (see, to that effect, judgment of 1 October 2015, Trijber and Harmsen, C‐340/14 and C‐341/14, EU:C:2015:641, paragraph 70).

| 64 | In so far as concerns, first, the appropriateness of the measure to ensuring the attainment of the objective of improving road safety, it is apparent from the information provided to the Court that the measure at issue in the main proceedings is intended to ensure that there is at least one operator responsible for performing the activity concerned in each of the five zones situated throughout the relevant territory. |
| --- | --- |

64

In so far as concerns, first, the appropriateness of the measure to ensuring the attainment of the objective of improving road safety, it is apparent from the information provided to the Court that the measure at issue in the main proceedings is intended to ensure that there is at least one operator responsible for performing the activity concerned in each of the five zones situated throughout the relevant territory.

| 65 | Such a measure appears to be capable of attaining the objective pursued since it seeks to ensure that drivers have access to training centres throughout the relevant territory, including in geographically isolated or less attractive areas (see, by analogy, judgments of 10 March 2009, Hartlauer, C‐169/07, EU:C:2009:141, paragraphs 51 and 52, and of 1 June 2010, Blanco Pérez and Chao Gómez, C‐570/07 and C‐571/07, EU:C:2010:300, paragraph 70). |
| --- | --- |

65

Such a measure appears to be capable of attaining the objective pursued since it seeks to ensure that drivers have access to training centres throughout the relevant territory, including in geographically isolated or less attractive areas (see, by analogy, judgments of 10 March 2009, Hartlauer, C‐169/07, EU:C:2009:141, paragraphs 51 and 52, and of 1 June 2010, Blanco Pérez and Chao Gómez, C‐570/07 and C‐571/07, EU:C:2010:300, paragraph 70).

| 66 | In so far as concerns, secondly, the question whether the measure at issue in the main proceedings goes beyond what is necessary to attain the objective pursued, it should be noted that that measure constitutes a significant restriction on freedom of establishment, since it requires that the relevant territory to be divided into five large areas in which only one provider is authorised to supply the service concerned. |
| --- | --- |

66

In so far as concerns, secondly, the question whether the measure at issue in the main proceedings goes beyond what is necessary to attain the objective pursued, it should be noted that that measure constitutes a significant restriction on freedom of establishment, since it requires that the relevant territory to be divided into five large areas in which only one provider is authorised to supply the service concerned.

| 67 | As the Advocate General observes in points 84 to 86 of his Opinion, there would appear to be measures that are less restrictive than that measure and capable of attaining the objective pursued. Furthermore, as has been stated before the referring court, it is also possible that that objective may be attained by an administrative authorisation scheme, rather than using a public service which must be provided by means of a concession. |
| --- | --- |

67

As the Advocate General observes in points 84 to 86 of his Opinion, there would appear to be measures that are less restrictive than that measure and capable of attaining the objective pursued. Furthermore, as has been stated before the referring court, it is also possible that that objective may be attained by an administrative authorisation scheme, rather than using a public service which must be provided by means of a concession.

| 68 | In the fourth place, it cannot be ruled out that the referring court may consider, following its examination, that the provision of road safety awareness and training courses for the purposes of the recovery of driving licence points is a task linked to a service of general economic interest. That is the case, under recital 70 of Directive 2006/123, if the service in question is provided in application of a special task in the public interest entrusted to the provider by the Member State concerned. |
| --- | --- |

68

In the fourth place, it cannot be ruled out that the referring court may consider, following its examination, that the provision of road safety awareness and training courses for the purposes of the recovery of driving licence points is a task linked to a service of general economic interest. That is the case, under recital 70 of Directive 2006/123, if the service in question is provided in application of a special task in the public interest entrusted to the provider by the Member State concerned.

| 69 | In such a scenario, that service would then fall within the scope of Article 15(4) of that directive. Consequently, the compatibility with EU law of the measure at issue in the main proceedings must be assessed in the light of the specific rule laid down in that provision. |
| --- | --- |

69

In such a scenario, that service would then fall within the scope of Article 15(4) of that directive. Consequently, the compatibility with EU law of the measure at issue in the main proceedings must be assessed in the light of the specific rule laid down in that provision.

| 70 | That specific rule provides that the rules laid down in Article 15(1) to (3) of Directive 2006/123 are to apply to legislation in the field of services of general economic interest only in so far as the application of those paragraphs does not obstruct the performance, in law or in fact, of the particular task assigned to them. |
| --- | --- |

70

That specific rule provides that the rules laid down in Article 15(1) to (3) of Directive 2006/123 are to apply to legislation in the field of services of general economic interest only in so far as the application of those paragraphs does not obstruct the performance, in law or in fact, of the particular task assigned to them.

| 71 | The Court has stated, in that regard, that Article 15(4) of that directive does not preclude a national measure from imposing a territorial restriction, provided that such a restriction is necessary for the performance of the particular tasks of the providers of the service of general economic interest at issue under economically viable conditions, and is proportionate to that exercise (see, to that effect, judgment of 23 December 2015, Hiebler, C‐293/14, EU:C:2015:843, paragraph 73). |
| --- | --- |

71

The Court has stated, in that regard, that Article 15(4) of that directive does not preclude a national measure from imposing a territorial restriction, provided that such a restriction is necessary for the performance of the particular tasks of the providers of the service of general economic interest at issue under economically viable conditions, and is proportionate to that exercise (see, to that effect, judgment of 23 December 2015, Hiebler, C‐293/14, EU:C:2015:843, paragraph 73).

| 72 | As the Advocate General observes in point 100 of his Opinion, it cannot be ruled out that it may be shown that division of the relevant territory into a greater number of geographical zones than the five existing zones could contribute to facilitating the provision of the services at issue in the main proceedings in less attractive areas. In those circumstances, the territorial division and the quantitative limit imposed by a measure such as that at issue in the main proceedings do not appear to be necessary to the performance of the specific task concerned under economically viable conditions. |
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72

As the Advocate General observes in point 100 of his Opinion, it cannot be ruled out that it may be shown that division of the relevant territory into a greater number of geographical zones than the five existing zones could contribute to facilitating the provision of the services at issue in the main proceedings in less attractive areas. In those circumstances, the territorial division and the quantitative limit imposed by a measure such as that at issue in the main proceedings do not appear to be necessary to the performance of the specific task concerned under economically viable conditions.

| 73 | Nevertheless, it is for the referring court to examine and take into consideration the exact scope of the public service obligations imposed, where appropriate, on concessionaires of contracts for the provision of road safety awareness and training courses for the purposes of the recovery of driving licence points, and to consider whether a less restrictive scheme could prevent the provision of the public service concerned under economically viable conditions. |
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73

Nevertheless, it is for the referring court to examine and take into consideration the exact scope of the public service obligations imposed, where appropriate, on concessionaires of contracts for the provision of road safety awareness and training courses for the purposes of the recovery of driving licence points, and to consider whether a less restrictive scheme could prevent the provision of the public service concerned under economically viable conditions.

| 74 | In the light of all the foregoing considerations, the answer to the question referred is that Article 15 of Directive 2006/123 must be interpreted as precluding national legislation under which the award of the contract for the provision of road safety awareness and training courses for the recovery of driving licence points must be made by means of a public service concession, in so far as that legislation goes beyond what is necessary to attain the general interest objective pursued, namely the improvement of road safety. |
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74

In the light of all the foregoing considerations, the answer to the question referred is that Article 15 of Directive 2006/123 must be interpreted as precluding national legislation under which the award of the contract for the provision of road safety awareness and training courses for the recovery of driving licence points must be made by means of a public service concession, in so far as that legislation goes beyond what is necessary to attain the general interest objective pursued, namely the improvement of road safety.

Costs

Costs

| 75 | Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. |
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75

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

| | On those grounds, the Court (Third Chamber) hereby rules: |
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On those grounds, the Court (Third Chamber) hereby rules:

| | Article 15 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market |
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Article 15 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market

Article 15 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market

| | must be interpreted as precluding national legislation under which the award of the contract for the provision of road safety awareness and training courses for the purposes of the recovery of driving licence points must be made by means of a public service concession, in so far as that legislation goes beyond what is necessary to attain the general interest objective pursued, namely the improvement of road safety. |
| --- | --- |

must be interpreted as precluding national legislation under which the award of the contract for the provision of road safety awareness and training courses for the purposes of the recovery of driving licence points must be made by means of a public service concession, in so far as that legislation goes beyond what is necessary to attain the general interest objective pursued, namely the improvement of road safety.

must be interpreted as precluding national legislation under which the award of the contract for the provision of road safety awareness and training courses for the purposes of the recovery of driving licence points must be made by means of a public service concession, in so far as that legislation goes beyond what is necessary to attain the general interest objective pursued, namely the improvement of road safety.

| | [Signatures] |
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[Signatures]

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(
  *1
  )	Language of the case: Spanish.

*1