Opinion of the Advocate General — ECLI:EU:C:2019:369
Date: 2019-05-07
Language of the case: Lithuanian
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Lithuania

Request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Lithuania) lodged on 25 April 2018 — Kauno miesto savivaldybė, Kauno miesto savivaldybės administracija (Case C-285/18) Language of the case: Lithuanian Referring court Lietuvos Aukščiausiasis Teismas Parties to the main proceedings Appellants: Kauno miesto savivaldybė, Kauno miesto savivaldybės administracija Other parties: UAB Irgita, UAB Kauno švara Questions referred Given the circumstances in the case under consideration, does the in-house transaction come within the scope of application of Directive 2004/18 1 or of Directive 2014/24, 2 when the procedures for the conclusion of the disputed in-house transaction, inter alia, the administrative procedures, were initiated at a time when Directive 2004/18 was still in force but the contract itself was concluded on 19 May 2016, when Directive 2004/18 was no longer in force? Assuming that the in-house transaction comes within the scope of application of Directive 2004/18: Must Article 1(2)(a) of the Directive (but not limited thereto), taking into account the judgments of the Court of Justice in Teckal (C-107/98), Jean Auroux and Others (C-220/05), ANAV (C-410/04), and other cases, be understood and interpreted as meaning that the notion of an ‘in-house transaction’ comes within the scope of EU law, and that the content and application of that notion are not affected by the national law of Member States, inter alia, by limitations on the conclusion of such transactions, for example, the condition that public procurement contracts cannot ensure the quality, availability and continuity of the services to be provided? If the answer to the previous question is in the negative, that is to say, the notion of an ‘in-house transaction’ comes, either partially or fully, within the scope of the law of the Member States, should the abovementioned provision of Directive 2004/18 be interpreted as meaning that Member States have a discretion to establish limitations or additional conditions for the conclusion of in-house transactions (in comparison with EU law and the case-law of the Court of Justice interpreting that law) but can implement that discretion only by means of specific and clear positive legal provisions governing public procurement? On the assumption that the in-house transaction comes within the scope of application of Directive 2014/24: Must the provisions of Article 1(4) and Article 12 of the Directive and those of Article 36 of the Charter, either together or separately (but not limited thereto), taking into account the judgments of the Court of Justice in Teckal (C-107/98), Jean Auroux and Others (C-220/05), ANAV (C-410/04), and other cases, be understood and interpreted as meaning that the notion of an ‘in-house transaction’ comes within the scope of EU law, and that the content and application of that notion are not affected by the national law of Member States, inter alia, by limitations on the conclusion of such transactions, for example, the condition that public procurement contracts cannot ensure the quality, availability and continuity of the services to be provided? If the answer to the previous question is in the negative, that is to say, the notion of an ‘in-house transaction’, either partially or fully, comes within the scope of the law of the Member States, should the provisions of Article 12 of Directive 2014/24 be interpreted as meaning that Member States have a discretion to establish limitations or additional conditions for the conclusion of in-house transactions (in comparison with EU law and the case-law of the Court of Justice interpreting that law) but can implement that discretion only by means of specific and clear positive legal provisions governing public procurement? Irrespective of which directive covers the disputed in-house transaction, should the principles of the equality and non-discrimination of public procurement suppliers and transparency (Article 2 of Directive 2004/18 and Article 18 of Directive 2014/24), the general prohibition of discrimination on grounds of nationality (Article 18 TFEU), the freedom of establishment (Article 49 TFEU), the freedom to provide services (Article 56 TFEU), the possibility of granting undertakings exclusive rights (Article 106 TFEU), and the case-law of the Court of Justice (judgments in Teckal, ANAV, Sea, Undis Servizi, and in other cases) be understood and interpreted as meaning that an in-house transaction being concluded by a contracting authority and by an entity legally separate from that contracting authority, where the contracting authority exercises control over that entity similar to that which it exercises over its own departments and the activity of that entity consists mainly of an activity carried out for the benefit of the contracting authority, is in itself lawful, inter alia, does not infringe the right of other economic operators to fair competition, does not discriminate against those other operators, and no privileges are conferred on the controlled entity which concluded the in-house transaction? ____________ 1 Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114). 2 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).