Judgment — ECLI:EU:C:2018:263
Date: 2018-04-19
Language of the case: Italian
Court formation: Ninth Chamber
Subject matter: Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary — Judgment of the Court (Ninth Chamber), 19 April 2018 1. Approximation of laws — Procedures for the award of public service contracts — Directive 92/50 — Services referred to in Annex I B — Compliance with the principles of transparency and equal treatment — Condition — Existence of certain cross-border interest — Criteria for assessment (Council Directive 92/50, Arts 9, 14 and 16 and Annex I B) 2. Approximation of laws — Procedures for the award of public service contracts — Directive 92/50 — Services referred to in Annex I B — Negotiated procedure — Inapplicability of the requirements regarding the minimum number of candidates that can be admitted to negotiate (Council Directive 92/50, Arts 9, 14, 16 and 27(3) and Annex I B) 1. When awarding a public service contract that falls within the scope of Article 9 of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, as amended by European Parliament and Council Directive 97/52/EC of 13 October 1997, and is, consequently, in principle, subject only to Articles 14 and 16 of that directive, a contracting authority is nonetheless also required to comply with the fundamental rules and general principles of the FEU Treaty, in particular the principles of equal treatment and non-discrimination on the grounds of nationality and the consequent obligation of transparency, provided that, at the date of its award, the contract had certain cross-border interest, which it is for the referring court to verify. In that regard, it must be pointed out that, in the course of that assessment, a conclusion that there is certain cross-border interest cannot be inferred hypothetically from certain factors which, considered in the abstract, could constitute evidence to that effect, but must be the positive outcome of a specific assessment of the circumstances of the contract at issue in the main proceedings. This means that it cannot be held that certain cross-border interest is established on the basis of factors that do not rule out its existence, but that such an interest must be considered as having been established when its cross-border nature is proved on the basis of objective and consistent factors (see, to that effect, judgment of 6 October 2016, Tecnoedi Costruzioni, C‑318/15, EU:C:2016:747, paragraph 22). However, it must be noted that, as regards, more particularly, health care services, the Court has held, in an action for failure to fulfil obligations, that certain cross-border interest was not established solely on the basis of the fact that the contracts at issue were of significant economic value (see, to that effect, judgment of 29 April 2010, Commission v Germany, C‑160/08, EU:C:2010:230, paragraphs 18, 54 and 123). (see paras 39, 41, 46, operative part 1) 2. Article 27(3) of Directive 92/50 must be interpreted as not applying to public service contracts referred to in Annex I B to that directive. It must be noted that, by adopting Article 9 of Directive 92/50, the EU legislature expressly provided that only Articles 14 and 16 of that directive were applicable to the services listed in Annex I B. In the absence of any indication to the contrary, it must be concluded that this is the case even if a public contract in respect of such a service has certain cross-border interest. It follows that subjecting the services listed in Annex I B to Directive 92/50 to articles other than those expressly referred to in Article 9 of that directive would lead to an interpretation that contradicts the clear wording of that article and would therefore be contrary to the intention of the EU legislature. It is clear that the obligations arising from Article 27(3) of that directive do not apply to a public contract in respect of a service listed in Annex I B thereto, even if the contract does have certain cross-border interest. (see paras 50-52, 55, operative part 2)