# C_2019004EN.01000302.xml

| 7.1.2019 | EN | Official Journal of the European Union | C 4/3 |
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7.1.2019

EN

Official Journal of the European Union

C 4/3

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Judgment of the Court (Ninth Chamber) of 25 October 2018 (request for a preliminary ruling from the Symvoulio tis Epikrateias — Greece) — Anodiki Services EPE v GNA, O Evangelismos — Ofthalmiatreio Athinon — Polykliniki, Geniko Ogkologiko Nosokomeio Kifisias — (GONK) ‘Oi Agioi Anargyroi’

(Case C-260/17) (1)

(Reference for a preliminary ruling - Public procurement - Directive 2014/24/EU - Article 10(g) - Exclusions from its scope - Employment contracts - Definition - Decisions of public hospitals to conclude fixed-term labour contracts for the purposes of catering, the provision of meals and cleaning - Directive 89/665/EEC - Article 1 - Right to an effective remedy)

(2019/C 4/04)

Language of the case: Greek

Referring court

Symvoulio tis Epikrateias

Parties to the main proceedings

Applicant: Anodiki Services EPE

Defendants: GNA, O Evangelismos — Ofthalmiatreio Athinon — Polykliniki, Geniko Ogkologiko Nosokomeio Kifisias — (GONK) ‘Oi Agioi Anargyroi’

Interveners: Arianthi Ilia EPE, Fasma AE, Mega Sprint Guard AE, ICM — International Cleaning Methods AE, Myservices Security and Facility AE, Kleenway OE, GEN — KA AE, Geniko Nosokomeio Athinon ‘Georgios Gennimatas’, Ipirotiki Facility Services AE

Operative part of the judgment

| 1. | Article 10(g) 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, as amended by Commission Delegated Regulation (EU) 2015/2170 of 24 November 2015, must be interpreted to the effect that the notion of ‘employment contracts’, referred to in that provision, covers labour contracts such as those at issue in the main proceedings, that is to say, fixed-term, individual labour contracts which are concluded with persons selected on the basis of objective criteria, such as the duration of unemployment, previous experience and the number of minor dependent children they have. |
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1.

Article 10(g) 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, as amended by Commission Delegated Regulation (EU) 2015/2170 of 24 November 2015, must be interpreted to the effect that the notion of ‘employment contracts’, referred to in that provision, covers labour contracts such as those at issue in the main proceedings, that is to say, fixed-term, individual labour contracts which are concluded with persons selected on the basis of objective criteria, such as the duration of unemployment, previous experience and the number of minor dependent children they have.

| 2. | The provisions of Directive 2014/24, as amended by Delegated Regulation 2015/2170, Articles 49 and 56 TFEU, the principles of equal treatment, transparency and proportionality, and Articles 16 and 52 of the Charter of Fundamental Rights of the European Union do not apply to a decision of a public authority to make use of employment contracts such as those at issue in the main proceedings in order to perform certain tasks falling within its public interest obligations. |
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2.

The provisions of Directive 2014/24, as amended by Delegated Regulation 2015/2170, Articles 49 and 56 TFEU, the principles of equal treatment, transparency and proportionality, and Articles 16 and 52 of the Charter of Fundamental Rights of the European Union do not apply to a decision of a public authority to make use of employment contracts such as those at issue in the main proceedings in order to perform certain tasks falling within its public interest obligations.

| 3. | Article 1(1) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014, must be interpreted to the effect that a decision of a contracting authority to conclude employment contracts with natural persons for the provision of certain services without using a public procurement procedure in accordance with Directive 2014/24, as amended by Delegated Regulation 2015/2170, on the ground that, in its opinion, those contracts do not fall within the scope of that directive, may be challenged under that provision by an economic operator with an interest in participating in a public procurement procedure with the same purpose as those contracts and which considers that those contracts do fall within the scope of that directive. |
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3.

Article 1(1) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014, must be interpreted to the effect that a decision of a contracting authority to conclude employment contracts with natural persons for the provision of certain services without using a public procurement procedure in accordance with Directive 2014/24, as amended by Delegated Regulation 2015/2170, on the ground that, in its opinion, those contracts do not fall within the scope of that directive, may be challenged under that provision by an economic operator with an interest in participating in a public procurement procedure with the same purpose as those contracts and which considers that those contracts do fall within the scope of that directive.

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(1)  OJ C 239, 24.7.2017.

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