Judgment — ECLI:EU:C:2016:56
Date: 2016-01-28
Language of the case: Italian
Court formation: Fifth Chamber
Subject matter: Competition;Agreements, decisions and concerted practices;Principles, objectives and tasks of the Treaties
Procedure: Reference for a preliminary ruling
Origin: Italy

summary of the facts on which the questions are based and the connection, inter alia, between those facts and the questions. Therefore, the findings necessary to verify the existence of certain cross-border interest, and more generally all the findings to be made by the national courts and on which the applicability of an act of secondary and primary legislation of the European Union depends, must be made before the questions are referred to the Court (see judgment in Azienda sanitaria locale No 5 ‘Spezzino’ and Others, C‑113/13, EU:C:2014:2440, paragraph 47). 48 In view of the spirit of judicial cooperation which governs relations between national courts and the Court of Justice in the context of preliminary ruling proceedings, the fact that the referring court did not make those initial findings relating to the possible existence of certain cross-border interest does not mean, however, that the request for a preliminary ruling is inadmissible if, in spite of those deficiencies, the Court, in the light of the information contained in the court file, considers that it is in a position to provide a useful answer to the referring court. That is the case, in particular, where the decision to refer contains sufficient relevant information for the existence of such an interest to be determined. Nevertheless, the response provided by the Court takes effect only if it is possible for the referring court to establish certain cross-border interest in the case at issue in the main proceedings, on the basis of a detailed assessment of all the relevant facts in the case in the main proceedings (see judgment in Azienda sanitaria locale No 5 ‘Spezzino’ and Others, C‑113/13, EU:C:2014:2440, paragraph 48 and the case-law cited). 49 Subject to that proviso, it must be held that the general principles of transparency and equal treatment flowing from Articles 49 TFEU and 56 TFEU may, in principle, be applicable to the contracts at issue in the main proceedings and, where relevant, to the framework agreement regulating them. 50 Consequently, the request for a preliminary ruling must be held to be admissible. The questions referred for a preliminary ruling The first question referred: 51 By its first question, the referring court asks, in essence, whether the rules of EU law on public procurement must be interpreted as precluding national legislation which, like that at issue in the main proceedings, allows local authorities to entrust the provision of medical transport services by direct award, without any form of advertising, to voluntary associations which, for the provision of those services, receive only reimbursement of the expenditure actually incurred for that purpose. 52 It should at the outset be noted that a contract cannot fall outside the concept of public contract merely because the remuneration is limited to reimbursement of the expenditure incurred to provide the agreed service or because the contract is concluded with a non-profit-making body (see, to that effect, judgment in Azienda sanitaria locale No 5 ‘Spezzino’ and Others, C‑113/13, EU:C:2014:2440, paragraphs 36 and 37 and the case-law cited). 53 However, the answer to the question referred depends on whether Directive 2004/18 is fully applicable or, instead, the general principles of transparency and equal treatment flowing from Articles 49 TFEU and 56 TFEU must be taken into account. 54 In the first case, it should be considered that Directive 2004/18 precludes national legislation, such as that at issue in the main proceedings, which allows local authorities to entrust the provision of medical transport services by direct award, without any form of advertising, to voluntary bodies (see, to that effect, judgment in Azienda sanitaria locale No 5 ‘Spezzino’ and Others, C‑113/13, EU:C:2014:2440, paragraph 44). 55 In the second case, it must be noted, first, that EU law on public procurement, in so far as it concerns, inter alia, public service contracts, is intended to ensure the free movement of services and the opening-up to competition in the Member States which is undistorted and as wide as possible and, secondly, it must be found that the application of national legislation such as that at issue in the main proceedings leads to a result contrary to those objectives, since it excludes for-profit entities from the markets concerned (see, to that effect, judgment in Azienda sanitaria locale No 5 ‘Spezzino’ and Others, C‑113/13, EU:C:2014:2440, paragraphs 51 and 52). 56 The award, in the absence of any transparency, of a contract to an undertaking located in the same Member State as the contracting authority amounts to a difference in treatment to the detriment of undertakings which might be interested in that contract but are established in another Member State. Unless it is justified by objective circumstances, such a difference in treatment, which, by excluding all undertakings established in another Member State, operates mainly to the detriment of the latter undertakings, amounts to indirect discrimination on the basis of nationality, prohibited under Articles 49 TFEU and 56 TFEU (judgment in Azienda sanitaria locale No 5 ‘Spezzino’ and Others, C‑113/13, EU:C:2014:2440, paragraph 52 and the case-law cited). 57 However, it follows from all these considerations, namely the national legal framework, the nature of the services concerned, which fall within the context of the national health service, the findings of the referring court regarding the positive budgetary impact of contracts such as those at issue in the main proceedings and the fact that, by their very nature, the associations that are signatories to such contracts are voluntary, that the use of those associations in the organisation of the medical transport service is likely to be grounded in the principles of universality, the good of the community and in reasons of economic efficiency and suitability, in so far as it allows that public service to be provided in an economically balanced manner for budgetary purposes, by bodies constituted, essentially, for the purpose of public service. 58 Such objectives are taken into consideration by EU law. 59 In that connection, it must be recalled, in the first place, that EU law does not detract from the power of the Member States to organise their public health and social security systems (judgment in Azienda sanitaria locale No 5 ‘Spezzino’ and Others, C‑113/13, EU:C:2014:2440, paragraph 55 and the case-law cited). 60 Admittedly, in the exercise of that power the Member States may not introduce or maintain unjustified restrictions on the exercise of fundamental freedoms in the area of health care. However, in the assessment of compliance with that prohibition, account must be taken of the fact that the health and life of humans rank foremost among the assets or interests protected by the Treaty and it is for the Member States, which have a discretion in the matter, to decide on the degree of protection which they wish to afford to public health and on the way in which that degree of protection is to be achieved (judgment in Azienda sanitaria locale No 5 ‘Spezzino’ and Others, C‑113/13, EU:C:2014:2440, paragraph 56 and the case-law cited). 61 Furthermore, not only the risk of seriously undermining the financial balance of a social security system may constitute per se an overriding reason in the general interest capable of justifying an obstacle to the freedom to provide services, but also the objective of maintaining, on grounds of public health, a balanced medical and hospital service open to all may also fall within one of the derogations, on grounds of public health in so far as it contributes to the attainment of a high level of health protection. Thus, measures which aim, first, to meet the objective of guaranteeing in the territory of the Member State concerned sufficient and permanent access to a balanced range of high-quality medical treatment and, secondly, assist in ensuring the desired control of costs and prevention, as far as possible, of any wastage of financial, technical and human resources are also covered (judgment in Azienda sanitaria locale No 5 ‘Spezzino’ and Others, C‑113/13, EU:C:2014:2440, paragraph 57 and the case-law cited). 62 In the second place, a Member State, in the context of its discretion to decide the level of protection of public health and to organise its social security system, may take the view that recourse to voluntary associations is consistent with the social purpose of a medical transport service and may help to control costs relating to that service (see, to that effect, judgment in Azienda sanitaria locale No 5 ‘Spezzino’ and Others, C‑113/13, EU:C:2014:2440, paragraph 59). 63 However, a system of organisation of a medical transport service such as that at issue in the main proceedings, which enables the competent authorities to use voluntary associations, must actually contribute to the social purpose and the pursuit of the objectives of the good of the community and budgetary efficiency on which that system is based (judgment in Azienda sanitaria locale No 5 ‘Spezzino’ and Others, C‑113/13, EU:C:2014:2440, paragraph 60). 64 In that connection, it is essential that, where they act in that context, the voluntary associations do not pursue objectives other than those mentioned in the previous paragraph of the present judgment, do not make any profit as a result of their services, apart from the reimbursement of the variable, fixed and on-going expenditure necessary to provide them, and do not procure any profit for their members. Furthermore, although it is permissible to maintain a workforce, for it would, without one, be almost impossible for those associations to act effectively in numerous domains in which the principle of the good of the community may naturally be implemented, the activities of those associations must strictly comply with the requirements laid down by national law (judgment in Azienda sanitaria locale No 5 ‘Spezzino’ and Others, C‑113/13, EU:C:2014:2440, paragraph 61). 65 Having regard to the general principle of EU law on the prohibition of abuse of rights, the application of that legislation cannot be extended to cover the wrongful practices of voluntary associations or their members. Thus, the activities of voluntary associations may be carried out by the workforce only within the limits necessary for their proper functioning. As regards the reimbursement of costs, it must be ensured that profit making, even indirect, cannot be pursued under the cover of a voluntary activity and that volunteers may be reimbursed only for expenditure actually incurred for the activity performed, within the limits laid down in advance by the associations themselves (judgment in Azienda sanitaria locale No 5 ‘Spezzino’ and Others, C‑113/13, EU:C:2014:2440, paragraph 62). 66 In the eventuality referred to in paragraph 55 of the present judgment, it is for the national court to carry out all the assessments required in order to verify whether the contract and, where relevant, the framework agreement at issue in the main proceedings, as regulated by the applicable legislation, actually contribute to the social purpose and the pursuit of the objectives of the good of the community and budgetary efficiency. 67 Having regard to all of the foregoing considerations, the answer to the first question is that Articles 49 TFEU and 56 TFEU must be interpreted as meaning that they do not preclude national legislation, such as that at issue in the main proceedings, which allows local authorities to entrust the provision of medical transport services by direct award, without any form of advertising, to voluntary associations, provided that the legal and contractual framework in which the activity of those associations is carried out actually contributes to the social purpose and the pursuit of the objectives of the good of the community and budgetary efficiency. The second question 68 By its second question, based on the assumption that Directive 2004/18 is not applicable to a contract such as that at issue in the main proceedings, the referring court asks essentially whether, where a Member State allows the public authorities to have direct recourse to voluntary associations to carry out certain tasks, in accordance with the conditions laid down in that regard by EU law, a public authority that intends to conclude contracts with such associations is required to compare, in advance, the proposals of various associations in order to avoid any unnecessary costs. 69 In that regard, it should be noted that, in accordance with the operative part of the judgment in Azienda sanitaria locale No 5 ‘Spezzino’ and Others (C‑113/13, EU:C:2014:2440) and with paragraph 67 of the present judgment, when all conditions are met which, under EU law, allow a Member State to provide for the use of voluntary associations, the provision of medical transport services may be entrusted to those associations by direct award, without any form of advertising. 70 The absence of any advertising requirement means that public authorities that make use of voluntary associations, under those conditions, are not required under EU law to organise a comparison between voluntary bodies. 71 Nevertheless, it must be noted that, as pointed out in paragraph 60 of the judgment in Azienda sanitaria locale No 5 ‘Spezzino’ and Others (C‑113/13, EU:C:2014:2440) and in paragraph 63 of the present judgment, the lawfulness of the use of voluntary associations is subject, in particular, to the condition that such use actually contributes to the objective of budgetary efficiency. Therefore, the arrangements for implementing that use, such as those laid down in the contracts concluded with those associations and in any framework agreement, must also contribute to the achievement of that objective. Furthermore, as pointed out in paragraph 62 of the judgment in Azienda sanitaria locale No 5 ‘Spezzino’ and Others (C‑113/13, EU:C:2014:2440) and in paragraph 65 of the present judgment, the general principle of the prohibition of abuse of rights applies with regard to the reimbursement of expenses incurred by voluntary associations. 72 Consequently, the answer to the second question is that, where a Member State allows public authorities to make direct use of voluntary associations to carry out certain tasks, a public authority that intends to conclude contracts with such associations is not required, under EU law, to compare the proposals of various associations beforehand. The third question 73 By its third question, based on the assumption that Directive 2004/18 is not applicable to a contract such as that at issue in the main proceedings, the referring court essentially asks whether, where a Member State, which allows public authorities to make direct use of voluntary associations to carry out certain tasks, in accordance with the conditions laid down in that regard by EU law, authorises those associations to engage in certain commercial activities, that Member State must establish, in that regard, precise limits, expressed as a percentage of the activity or resources of those associations. 74 At the outset, with regard to the principle of a non-profit organisation engaging in an activity on the market, it follows from paragraph 48 of the judgment in CoNISMa (C‑305/08, EU:C:2009:807) that that question falls within the competence of a national legislature. 75 Furthermore, in accordance with paragraph 61 of the judgment in Azienda sanitaria locale No 5 ‘Spezzino’ and Others (C‑113/13, EU:C:2014:2440) and paragraph 64 of the present judgment, the activities of voluntary associations must strictly comply with the requirements laid down by national law that are applicable to them. Thus, the Court found that, within the limits set by that judgment, the regulatory framework of the activities of those associations falls within the competence of Member States. 76 Consequently, it is for the national legislature which, while allowing public authorities to use voluntary associations to carry out certain tasks, opted to allow those associations to pursue a commercial activity on the market, to decide whether it is preferable to regulate that activity by establishing a numerical limit or by otherwise defining that activity. 77 Observing the limits set out in paragraphs 60 to 62 of the judgment in Azienda sanitaria locale No 5 ‘Spezzino’ and Others (C‑113/13, EU:C:2014:2440), noted in paragraphs 63 to 65 of the present judgment, however, fundamentally entails respecting the very nature of those voluntary associations. 78 It follows that any commercial activity carried out by such associations on the market must be marginal and support the pursuit of their voluntary activity. 79 Consequently, the answer to the third question is that, where a Member State, which allows public authorities to make direct use of voluntary associations to carry out certain tasks, authorises those associations to engage in certain commercial activities, that Member State must establish the limits within which those activities may be carried out. Those limits must nevertheless ensure that those commercial activities are marginal, having regard to all the activities of such associations, and must support the pursuit of their voluntary activity. Costs 80 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 (Fifth Chamber) hereby rules: 1. Articles 49 TFEU and 56 TFEU must be interpreted as meaning that they do not preclude national legislation, such as that at issue in the main proceedings, which allows local authorities to entrust the provision of medical transport services by direct award, without any form of advertising, to voluntary associations, provided that the legal and contractual framework in which the activity of those associations is carried out actually contributes to the social purpose and the pursuit of the objectives of the good of the community and budgetary efficiency. 2. Where a Member State allows public authorities to make direct use of voluntary associations to carry out certain tasks, a public authority which intends to conclude contracts with such associations is not required, under EU law, to compare the proposals of various associations beforehand. 3. Where a Member State, which allows public authorities to make direct use of voluntary associations to carry out certain tasks, authorises those associations to engage in certain commercial activities, that Member State must establish the limits within which those activities may be carried out. Those limits must nevertheless ensure that those commercial activities are marginal, having regard to all the activities of such associations, and must support the pursuit of their voluntary activity. [Signatures] * Language of the case: Italian.