Opinion of the Advocate General — ECLI:EU:C:2015:394
Date: 2015-06-11
Language of the case: Spanish
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary — Judgment of the Court (Fifth Chamber), 22 October 2015 Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Award of contracts — Public health services contracts — Obligation to provide the services exclusively in establishments situated within the territory of a given municipality — Not permissible — Breach of the principle of free access by tenderers to public procurement procedures (European Parliament and Council Directive 2004/18, Art. 23(2)) Article 23(2) of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts precludes a requirement expressed as a technical specification in public procurement notices relating to the provision of health services, whereby the medical services that are the subject of the calls for tenders must be provided by private hospital establishments situated exclusively within a given municipality, which is not necessarily that in which the patients concerned by those services reside, where that requirement involves the automatic exclusion of tenderers who cannot provide those services in such an establishment situated within that municipality but who satisfy all the other conditions of those calls for tenders. The requirement that a hospital establishment must imperatively be situated in a given municipality that is to be the place where the medical services concerned are exclusively to be provided constitutes a territorial constraint on performance, which by its nature is not such as to enable the objective of ensuring the proximity and accessibility of the private support hospital establishment to be achieved, in the interests of patients, their families and the medical personnel who are required to travel to that establishment, while ensuring equal and non-discriminatory access to the contracts in question by all tenderers. That requirement renders those contracts accessible only to those tenderers who can provide the services in question in an establishment situated within the designated municipality. It is therefore contrary to Article 23(2) of Directive 2004/18. (see paras 28, 32, 33, operative part)