Opinion of the Advocate General — ECLI:EU:C:2008:544
Date: 2008-10-08
Language of the case: Greek
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Greece

Summary of the Judgment 1. Approximation of laws – Procedures for the award of public works contracts – Directive 93/37 – Scope (Council Directive 93/37) 2. Preliminary rulings – Jurisdiction of the Court – Limits – Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer – Questions not related to the purpose of the main proceedings (Art. 234 EC) 3. Approximation of laws – Procedures for the award of public works contracts – Directive 93/37 (Council Directive 93/37, Art. 24, first para.) 4. Preliminary rulings – Jurisdiction of the Court – Limits – Examination of the compatibility of national law with Community law (Art. 234 EC) 5. Approximation of laws – Procedures for the award of public works contracts – Directive 93/37 (Council Directive 93/37) 1. Directive 93/37 concerning the coordination of procedures for the award of public works contracts, as amended by Directive 97/52, does not make the applicability of its provisions to procedures for the award of public works contracts contingent on any condition relating to the nationality or the place of establishment of the tenderers. There is nothing in that directive to permit the inference that the applicability of its provisions, in particular the common rules on participation laid down, inter alia, in Article 24 thereof, depends on the existence of an actual link with free movement between Member States. (see para. 29) 2. In proceedings under Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court is in principle bound to give a ruling. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (see paras 32-34) 3. The first paragraph of Article 24 of Directive 93/37 concerning the coordination of procedures for the award of public works contracts, as amended by Directive 97/52, must be interpreted as listing exhaustively the grounds based on objective considerations of professional quality which are capable of justifying the exclusion of a contractor from participation in a public works contract. However, that directive does not preclude a Member State from providing for further exclusionary measures designed to ensure observance of the principles of equal treatment of tenderers and of transparency, provided that such measures do not go beyond what is necessary to achieve that objective. (see para. 49, operative part 1) 4. It is not the task of the Court, in preliminary ruling proceedings under Article 234 EC, to rule upon the compatibility of national law with Community law or to interpret national law. The Court is, however, competent to give the national court full guidance on the interpretation of Community law in order to enable it to determine the issue of compatibility for the purposes of the case before it. (see para. 51) 5. Community law must be interpreted as precluding a national provision which, whilst pursuing the legitimate objectives of equal treatment of tenderers and of transparency in procedures for the award of public contracts, establishes an irrebuttable presumption that the status of owner, partner, main shareholder or management executive of an undertaking active in the media sector is incompatible with that of owner, partner, main shareholder or management executive of an undertaking which contracts with the State or a legal person in the public sector in the broad sense to perform a works, supply or services contract. The Community coordination of procedures for the award of public contracts is designed in particular to avoid both the risk of preference being given to national tenderers whenever a contract is awarded and the possibility that a contracting authority may choose to be guided by considerations which are unrelated to the contract in question. Against that background, it is appropriate to grant the Member States a certain discretion for the purpose of adopting measures intended to safeguard the principles of equal treatment of tenderers and of transparency, which constitute the basis of the Community directives on the award of public contracts. It follows that Community law does not preclude the adoption of national measures designed to avoid, in procedures for the award of public works contracts, the risk of occurrence of practices capable of jeopardising transparency and distorting competition, a risk which could arise from the presence, amongst the tenderers, of a contractor active in the media sector or connected with a person involved in that sector, and thus to prevent or punish fraud and corruption. A national provision which establishes a system of general incompatibility between the sector of public works and that of the media has the consequence of excluding from the award of public contracts public works contractors who are also involved in the media sector on account of a connection as owner, main shareholder, partner or management executive, without affording them any possibility of showing, with regard to any evidence advanced, for instance, by a competitor, that, in their case, there is no real risk of the type referred to above. Thus, by excluding an entire category of public works contractors on the basis of that irrebuttable presumption, such a provision goes beyond what is necessary to achieve the claimed objectives of transparency and equal treatment. (see paras 54-55, 60, 62-63, 69, operative part 2)