# C_2017239EN.01003102.xml

| 24.7.2017 | EN | Official Journal of the European Union | C 239/31 |
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24.7.2017

EN

Official Journal of the European Union

C 239/31

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Request for a preliminary ruling from the Simvoulio tis Epikratias (Greece) lodged on 16 May 2017 — Αnodiki Services ΕPΕ v GNA ‘Εvangelismos — Οfthalmiatrio Athinon — Polikliniki’, GNA ‘Georgios Gennimatas’, Geniko Οnkologiko Nosokomio Κifisias — (GΟΝΚ) ‘Agioi Anargiroi’

(Case C-260/17)

(2017/C 239/39)

Language of the case: Greek

Referring court

Referring court

Simvoulio tis Epikratias

Parties to the main proceedings

Parties to the main proceedings

Applicant: Αnodiki Ipiresies Diacheirisis Perivallontos, Oikonomias, Dioikisis ΕPΕ (Anodiki Services ΕPΕ)

Applicant:

Defendants: GNA ‘Εvangelismos — Οfthalmiatrio Athinon — Polikliniki’, GNA ‘Georgios Gennimatas’, Geniko Οnkologiko Nosokomio Κifisias — (GΟΝΚ) ‘Agioi Anargiroi’

Defendants:

Questions referred

Questions referred

| 1. | For the purposes of Article 10(g) of Directive 2014/24, (1) is it sufficient ground, for the classification of a contract as an ‘employment contract’ under that provision, that it constitutes a contract with an employer-employee relationship or is it necessary that that contract have particular characteristics (for example with respect to the nature of the work, the contract terms, the qualifications of candidates, the procedural rules for their selection), so that the selection of each employee should be the result of an individualised judgment and subjective assessment of his or her personal qualities by the employer? Can fixed-term work contracts which are allocated on the basis of objective criteria, such as the length of time the candidate has been unemployed, the candidate’s previous experience or the number of minor children he or she has, as the result of a formal check of supporting documents and a predetermined weighting of the above criteria, such as contracts under Article 63 of Law 4430/2016, be regarded as ‘employment contracts’ within the meaning of Article 10(g) of Directive 2014/24? |
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1.

For the purposes of Article 10(g) of Directive 2014/24, (1) is it sufficient ground, for the classification of a contract as an ‘employment contract’ under that provision, that it constitutes a contract with an employer-employee relationship or is it necessary that that contract have particular characteristics (for example with respect to the nature of the work, the contract terms, the qualifications of candidates, the procedural rules for their selection), so that the selection of each employee should be the result of an individualised judgment and subjective assessment of his or her personal qualities by the employer? Can fixed-term work contracts which are allocated on the basis of objective criteria, such as the length of time the candidate has been unemployed, the candidate’s previous experience or the number of minor children he or she has, as the result of a formal check of supporting documents and a predetermined weighting of the above criteria, such as contracts under Article 63 of Law 4430/2016, be regarded as ‘employment contracts’ within the meaning of Article 10(g) of Directive 2014/24?

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| 2. | For the purposes of the provisions of Directive 2014/24 (Articles 1(4), 18(1) and (2), 19(1), 32 and 57, read together with recital (5) thereof), of the Treaty on the Functioning of the European Union (Articles 49 and 56) and of the Charter of Fundamental Rights (Articles 16 and 52), and the principles of equal treatment, transparency and proportionality, is it permitted for the public authorities to have recourse to other means, including employment contracts, to the exclusion of public contracts, in order to meet the same public interest requirements, and if so, on what conditions, when that recourse is not part of the recurrent organisation of the public service, but — as in the case of Article 63 of Law 4430/2016 — takes place for a defined period of time and to deal with extraordinary circumstances, as well as for reasons that relate to the effectiveness of competition or the legitimacy of the operations of undertakings who are active in the public procurement market? Can reasons of that kind, as well as circumstances such as the weakness of the unhindered performance of public contracts or the realisation of greater financial benefit compared with a public contract, be regarded as overriding reasons in the public interest, which justify the adoption of a measure which leads to a serious restriction, in extent and duration, on business activity in the field of public procurement? |
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2.

For the purposes of the provisions of Directive 2014/24 (Articles 1(4), 18(1) and (2), 19(1), 32 and 57, read together with recital (5) thereof), of the Treaty on the Functioning of the European Union (Articles 49 and 56) and of the Charter of Fundamental Rights (Articles 16 and 52), and the principles of equal treatment, transparency and proportionality, is it permitted for the public authorities to have recourse to other means, including employment contracts, to the exclusion of public contracts, in order to meet the same public interest requirements, and if so, on what conditions, when that recourse is not part of the recurrent organisation of the public service, but — as in the case of Article 63 of Law 4430/2016 — takes place for a defined period of time and to deal with extraordinary circumstances, as well as for reasons that relate to the effectiveness of competition or the legitimacy of the operations of undertakings who are active in the public procurement market? Can reasons of that kind, as well as circumstances such as the weakness of the unhindered performance of public contracts or the realisation of greater financial benefit compared with a public contract, be regarded as overriding reasons in the public interest, which justify the adoption of a measure which leads to a serious restriction, in extent and duration, on business activity in the field of public procurement?

| 3. | For the purposes of Article 1 of Directive 89/665, (2) as currently in force, does the scope of that provision exclude judicial protection against the decision of a public authority, such as the contested decisions in the main proceedings, with respect to the award of contracts that are treated as not falling within the scope of Directive 2014/24 (for example, as an ‘employment contract’), when an action is brought by an economic operator who would have a legal right to be awarded a comparable public contract and who claims that Directive 2014/24 has been unlawfully not implemented on the view that its non-implementation was permissible? |
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3.

For the purposes of Article 1 of Directive 89/665, (2) as currently in force, does the scope of that provision exclude judicial protection against the decision of a public authority, such as the contested decisions in the main proceedings, with respect to the award of contracts that are treated as not falling within the scope of Directive 2014/24 (for example, as an ‘employment contract’), when an action is brought by an economic operator who would have a legal right to be awarded a comparable public contract and who claims that Directive 2014/24 has been unlawfully not implemented on the view that its non-implementation was permissible?

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(1)  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 (OJ 2014 L 94, p. 65).

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(2)  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 (OJ 1989 L 395, p. 33).

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