Opinion of the Advocate General — ECLI:EU:C:2017:332
Date: 2017-05-03
Language of the case: Italian
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the arguments of the parties 28. Malpensa Logistica submits that Directive 96/67 was guided by the need to open up the market for groundhandling services, removing them from the monopolistic influence of airport managing bodies at a time when the allocation of areas within airports by those bodies fell within the scope of the ‘special sectors’ covered by the rules on public procurement. 29. Directive 2004/17, which was adopted at a later point in time, governs the procedures for the award of contracts in the special sectors and provides that its principles are to apply to contracts on the provision of airports (Article 7) for purposes directly related to the pursuit of an airport activity (Article 20). Specifically, Article 10 of that directive requires contracting entities to treat economic operators on non-discriminatory and equal terms, while Article 31 provides that contracts which have as their object services listed in Annex XVII A are to be awarded in accordance with Articles 34 to 59. 30. In Italy, responsibility for making awards lies with airport concession holders and those contracts are directly related to the activities of the managing body. SEA is therefore under an obligation to allocate the areas necessary for the exploitation of services relating to airport management in accordance with the procedures laid down in Directive 2004/17. 31. Malpensa Logistica argues that this system is on a different level from the system set out in Directive 96/67, the aim of which was not to abolish managing bodies’ monopoly, but to establish equal treatment for all operators seeking to exploit areas within an airport. Under Community principles, such equality is ensured by means of selection procedures that are open to competition. 32. In Malpensa Logistica’s opinion, there is no conflict between Directives 96/67 and 2004/17, which are different in scope. Since the entry into force of Directive 2004/17 and its transposing legislation, providers of services directly related to airport activities have had to access the exploitation of the areas assigned to them through open and transparent selection procedures. 33. Lastly, Malpensa Logistica considers the fact that the disputed award was only temporary to be irrelevant as it also had an interest in the temporary allocation of the area at issue, which should have been effected by means of a selection procedure. 34. Beta-Trans submits, in the first place, that the hangar was made available to it because it had previously been awarded, as a result of a competitive procedure, similar facilities still under construction. The disputed assignment was for a limited time, until those facilities were ready for use. 35. Beta-Trans refers to the commercial context of the dealings between it, Malpensa Logistica and a former client of the latter (Nippon Cargo Airlines) to assert that, even though Malpensa Logistica had vastly more space at the airport, Beta-Trans had succeeded in establishing commercial links with Nippon Cargo Airlines, which it could not have done without the disputed award. In its view, SEA’s approach ensures access to the market for new operators, as well as effective and genuine competition, since it makes it easier for third parties to choose freely between different suppliers of services at airports. In that connection, it stresses the importance of Article 16 of Directive 96/67, in so far as it helps open the market up to new operators, such as itself. 36. Lastly, Beta-Trans focuses its analysis on Directive 96/67 and Legislative Decree No 18/1999, which transposes that directive into Italian law, to submit that the general rule of free access is subject to exceptions (including lack of space) which may justify restrictions on the number of service providers and the requirement that such providers be appointed by means of competitive selection procedures. 37. SEA contends that Directive 2004/17 does not apply in this case, which is governed by Directive 96/67, pursuant to the principle that special rules override general rules. It argues that, when Directive 96/67 was approved, sectors such as air transport were already regulated by Directive 531/90/EEC, (8) which Directive 2004/17 later replaced with substantially the same provisions as far as their scope was concerned. Accordingly, by approving Directive 96/67, the Community legislature was aware of the existence of such provisions on public procurement in the special sectors, despite which it established a special set of rules for groundhandling services at airports. 38. From a different angle, SEA states that Directive 2004/17 necessarily presupposes that the contract concluded between the contracting entity and the contractor, (9) under which the former gives the latter remuneration in payment for the service it receives, is for pecuniary interest. This element is lacking in the instant case, in which it is the successful tenderer who pays the other party a fee as consideration for the occupation of a publicly owned area. Directive 2004/17 does not, therefore, apply to the dispute. 39. SEA then turns its attention to the possibility under Directive 96/67 of imposing limits on the access by suppliers of groundhandling services, in which case a public selection procedure must be conducted. This possibility does not necessarily mean that a selective process must also be conducted for the assignment of areas to be used in such activities. 40. The Commission, taking the same approach as SEA, argues that Directive 2004/17 does not apply because the requirement under Article 1(2)(c) and (d) thereof that the contract be for pecuniary interest is not met, there being no remuneration from the contracting authority to the contractor in exchange for the provision of a service by the contractor. The relationship between them falls within the ambit of service concessions, which are excluded from the scope of Directive 2004/17 by Article 18 thereof. 41. Even if it were to be accepted that the concession of areas within airports was governed by Directive 2004/17, it would fall within category 20 of Annex XVII B, with the result that the managing body would not be under an obligation to organise a selection procedure. 42. In short, the Commission states that Directive 96/67 is the point of reference and it can be inferred from that directive alone that the managing body is required to divide the space available among the different operators, to the extent necessary for the exercise of their rights and to allow effective and fair competition based on relevant, objective, transparent and non-discriminatory rules and criteria. The national court must determine whether, in this specific case, those criteria were met, even in the absence of a selection procedure. V. Assessment 43. As a preliminary observation, it is pertinent to note that the Court’s answer to the referring court cannot play a part in the debate on the interpretation of the domestic rules which, according to the referring court, could be used ‘in the abstract’ (10) to decide on the case. 44. It is for the referring court (and, as the case may be, the court that may have to review its judgment) to clarify whether Legislative Decree No 163/2006 (on public procurement), as general legislation, takes precedence over the provisions of Legislative Decree No 18/1999 (governing groundhandling services at airports) in order to determine whether, under Italian law and in accordance with those legal instruments, the allocation of areas within airports must be preceded by a public selection procedure. 45. The fact that both sets of national provisions ‘are derived from EU law’, as the referring court states, (11) does not prevent the Italian legislature from requiring that public selection procedures apply in the case of allocations of areas within airports, such as the area in the present case, allocations which, as I will argue below, are not covered by Directive 2004/17. Whilst that directive certainly requires that contracts falling within its scope be awarded in accordance with its provisions, there is nothing to prevent a Member State from deciding, on its own initiative, to extend those rules to other contractual arrangements. 46. Leaving aside the indisputable jurisdiction of the Italian courts to determine whether, under Italian law, the award of areas within airports must always be preceded by a public selection procedure, I will confine myself to providing some interpretative guidelines on the two directives in question. After identifying the directive which I consider applies from the standpoint of EU law, it will be necessary to examine whether Italian law conflicts with that directive in any way. A. The application of Directive 2004/17 47. The first point to be addressed is the classification of the relationship between the managing body of the airport and the suppliers of groundhandling services, in order to determine whether it constitutes a public service contract or a service concession, with a public property element. In the latter situation, Directive 2004/17 would not apply, in accordance with Article 18 thereof. 48. The case-law of the Court (12) lays down the basis for distinguishing between these categories. Although its decisions relate to the interpretation of Directive 2004/18/EC, (13) I am of the view that they may be applied to Directive 2004/17, in view of the similarities between the relevant provisions of those directives. 49. The Court has held that ‘it follows from a comparison of the definitions of a public service contract and a service concession provided, respectively, by Article 1(2)(a) and (d) and by Article 1(4) of Directive 2004/18 [corresponding to Article 1(2)(a) and (d) and Article 1(3)(b) of Directive 2004/17] that the difference between a public service contract and a service concession lies in the consideration for the provision of services. A service contract involves consideration which, although it is not the only consideration, is paid directly by the contracting authority to the service provider, while, for a service concession, the consideration for the provision of services consists in the right to exploit the service, either alone, or together with payment.’ (14) 50. The Court has also found that the classification of a relationship as a service concession ‘implies that the service supplier takes the risk of operating the services in question and that the absence of a transfer to the service provider of the risk connected with operating the service shows that the transaction concerned is a public service contract and not a service concession’. (15) 51. In the context of groundhandling services, the close relationship between the managing body of the airport and the supplier of those services to airlines is given concrete expression in the surrender by the former to the latter of the relevant airport land and facilities. In exchange for public property being made available in this way, the managing body receives remuneration (usually in the form of a fee) from the operator. In turn, the operator uses the assigned areas in its commercial dealings with third parties, namely with users who agree to pay the operator for the services performed. (16) The operator bears the commercial risk associated with the pursuit of its business. 52. At the hearing, it was confirmed that this basic arrangement is precisely the one in use at Milan’s Malpensa airport. The suppliers of groundhandling services pay SEA, as managing entity, an annual fee based on the number of square metres of the facilities they occupy. This remuneration takes the form of consideration for the use of areas at the airport and is based on Article 16(3) of Directive 96/67. (17) 53. A concession of airport facilities to a supplier so that the latter can provide groundhandling services to third parties cannot be classified as a public service contract for the purpose of Article 1(2)(a) and (d) of Directive 2004/17, with the result that the relationship referred to in the main proceedings falls outside the scope of that directive. 54. Lastly, as the Commission points out, if it is accepted that the award of this type of facilities, which enable groundhandling services to be provided, is subject to the requirements of Directive 2004/17, it would come under supporting and auxiliary transport services (category 20 of Annex XVII B to Directive 2004/17). Article 32 of Directive 2004/17 provides that the award of contracts which have as their object that category of services is ‘governed solely by Articles 34 and 43’ (technical specifications and contract award notices, respectively), that is, not by the remaining general rules. B. The possible application of both Directive 2004/17 and Directive 96/67 55. If, hypothetically speaking, the award of areas within airports to suppliers of groundhandling services was of the same nature as a contract for the provision of services (quod non), both Directive 2004/17 and Directive 96/67 would apply to the same factual situation. The first directive requires that the award be preceded by a formal selection procedure while the second does not, with the result that the conflict is evident. 56. As the Commission noted in its written observations and recalled at the hearing, managing bodies such as SEA have a distinctive structure which allows them to act either as contracting authorities, under Directive 2004/17, or as administrators of airport infrastructure, a status which, under Directive 96/67, empowers them to coordinate and control the activities of the different operators present at the airport. This dual role calls for an examination of the duties performed in each case. 57. Awards such as that at issue in the main proceedings fall within the second category of functions, governed by Directive 96/67, and are not subject to the procedures set out in Directive 2004/17, as I have just pointed out. This conclusion can be drawn, in my opinion, simply by considering the scope of each directive, without it being necessary to resort to criteria of interpretation based on the lex generalis/lex specialis pairing. 58. If those criteria had to be applied, the case-law of the Court would enable the conflict between the two sets of rules to be resolved. In such cases, the Court has diffused any legislative friction by having recourse to the principle that special rules override general rules, which in turn is related to the principle of legal certainty ‘requir[ing] that rules of law be clear and precise and predictable in their effect, so that interested parties can ascertain their position in situations and legal relationships governed by EU law’. (18) 59. Particularly apposite is the recent judgment of 27 October 2016 in Hörmann Reisen, (19) in which the apparent overlap, also in the transport field, occurred between Regulation (EC) No 1370/2007 (20) and the directives on public procurement. (21) 60. The Court, in setting out the premiss of its decision, stated that ‘Directive 2004/18 … is of general application, whereas Regulation No 1370/2007 applies only to public passenger transport services by rail and road’. Based on that finding, and bearing in mind that both Regulation No 1370/2007 and Directive 2004/18 ‘contain rules on subcontracting, the view must be taken that the first provision constitutes a special rule with respect to the rules laid down in the second provision, and, as a lex specialis, takes precedence over the latter’. 61. Malpensa Logistica nonetheless argues that Directive 2004/17 applies as it postdates Directive 96/67. However, an analysis of the time sequence leads instead to the opposite conclusion, since the wording of Directive 2004/17 is the same, in this respect, as that of its predecessor, Directive 90/531/EEC, (22) which already included airports within its scope (Article 2(2)(b)(ii)), under the same terms as Article 7(b) of Directive 2004/17. Accordingly, when it approved Directive 96/67, the Community legislature was fully aware of the specific nature of the rules it was establishing, which differed from those set out in the directive on procurement in the special sectors. 62. The uniqueness of the rules relating to airports is justified by Directive 96/67 itself, where it makes clear in its recitals (23) that the objectives of the directive are to help reduce the operating costs of airlines and improve the quality of service provided to users by opening up access to the groundhandling market, (24) at the same time as acknowledging the possibility for the Member States to take the specific nature of the sector into account and the need to weigh up the imperatives linked to the situation of airports when such opening-up occurs. 63. From that perspective, also, the application of Directive 2004/17 would be excluded in favour of the application of Directive 96/67. C. The consequences of the foregoing assessment for the answer to the question referred for a preliminary ruling 64. The question referred by the national court is confined to ascertaining only whether Article 7 of Directive 2004/17 ‘preclude[s]’ national provisions (Articles 4 and 11 of Legislative Decree No 18/1999) which do not require a public tendering procedure in the case of the award of areas within airports. 65. In the light of the above assessment, my view is that the answer to that question, as it is worded, should be in the negative. To that end, it would be sufficient to state that Directive 2004/17 does not apply to awards of this kind, notwithstanding the fact that the national legislature may, if it considers it appropriate and acting on its own authority, make them subject to rules similar to those governing public contracts in the special sectors. To the extent that Legislative Decree No 18/1999 does not require there to be a formal tendering system for the award of the use of such areas, it does not conflict with Directive 2004/17. 66. However, that answer might be insufficient and detract from the two-way process of preliminary rulings, since the referring court, in its meticulous presentation of the applicable law, also mentioned Directive 96/67 and the legislation transposing it into Italian law. An answer which did not examine the effect of that directive on the main proceedings would, in my view, be incomplete. 67. In addition, as the Court has repeatedly held, ‘the fact that the referring court’s question refers only to certain provisions of EU law does not mean that the Court may not provide the national court with all the guidance on points of interpretation that may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to those points in its question’. (25) 68. It is therefore appropriate to address the problems raised in the order for reference also from the standpoint of Directive 96/67. D. The allocation of areas within airports under Directive 96/67 69. Pursuant to Directive 96/67, access by suppliers of groundhandling services to the market for the provision of services to third parties at airports is free (Article 6). However, in keeping with its recitals, (26) Directive 96/67 allows the Member States, in specified circumstances, to reduce the number of suppliers authorised to provide groundhandling services (Article 6(2) in conjunction with Article 9). In those circumstances, it is necessary to initiate a competitive procedure to select operators, which is governed by the same directive (Article 11). 70. In both scenarios (unrestricted access or selective access), (27) the chosen suppliers must obviously have access to airport facilities, which the managing body provides to them. Under Article 16(2) of Directive 96/67, the space available for groundhandling services at an airport must be divided among the various suppliers ‘to the extent necessary for the exercise of their rights and to allow effective and fair competition, on the basis of the relevant, objective, transparent and non-discriminatory rules and criteria’. 71. This provision therefore requires the managing body to observe, when allocating areas or facilities within airports, the abovementioned ‘relevant, objective, transparent and non-discriminatory rules and criteria’, but it does not require that body to have recourse to a formal public tendering procedure similar to that in place for the award of contracts covered by Directive 2004/17. 72. The fact that Directive 96/67 does not require the managing entity to initiate a selection procedure in order to award areas within airports to suppliers obviously does not mean that the managing entity is not able to organise such a procedure. What is more, an open tendering procedure between authorised operators may undoubtedly be one of the mechanisms (not necessarily the only mechanism) suitable for distributing areas, if it is implemented in accordance with the criteria of objectivity, transparency and non-discrimination referred to in Article 16(2) of that directive. 73. Indeed, according to the documents in the case and information provided at the hearing, SEA awarded Beta-Trans the definitive airport facilities as the result of a competitive selection procedure in which Malpensa Logistica also participated. (28) As indicated above, the assignment of the temporary hangar, which is the only matter in dispute, came about because the area which had been definitively awarded was not ready. 74. These factors (the temporary nature of the hangar and the existence of an earlier competitive procedure) may be relevant in determining whether SEA complied with Article 16(2) of Directive 96/67. Since this provision allows the managing body a broad discretion, subject to the limits mentioned above, responsibility for assessing it lies with the national courts. 75. It should also be borne in mind that the objectives of Directive 96/67 include encouraging the presence of new suppliers of groundhandling services and that one of the criteria for assigning available space within airports is to promote ‘effective and fair’ competition between all operators, ‘including new entrants in the field’. Effective competition precisely requires the removal of barriers preventing the entry of new operators. From that perspective, the principles of objectivity, transparency and non-discrimination may justify decisions on the allocation of areas which take account of the situation of suppliers of groundhandling services already in place and their possible dominance in the provision of those services at a given airport. (29) 76. I therefore suggest a twofold answer to the question referred for a preliminary ruling: – First, it must be acknowledged that the national rules, which do not require a prior public selection procedure to be conducted for every award, including temporary awards, of areas within airports for the purpose of providing groundhandling services (Articles 4 and 11 of Legislative Decree No 18/1999), are compatible with Article 7 of Directive 2004/17. – Secondly, it must be pointed out to the referring court that Article 16(2) of Directive 96/67 requires managing bodies to distribute available space under the terms examined above. VI. Conclusion 77. In the light of the foregoing, I propose that the Court give the following answer to the question referred for a preliminary ruling by the Tribunale Amministrativo Regionale per la Lombardia (Regional Administrative Court of Lombardy, Italy): (1) Article 7 of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors must be interpreted as not precluding national provisions, such as those set out in Articles 4 and 11 of Legislative Decree No 18/1999, which do not require a prior public selection procedure to be conducted for every award, including temporary awards, of areas within airports for the purpose of providing groundhandling services. (2) The award must comply with Article 16(2) of Council Directive 96/67/EC of 15 October 1996 on access to the groundhandling market at Community airports, so that those areas are divided among the various suppliers of groundhandling services, including new entrants in the field, to the extent necessary for the exercise of their rights and to allow effective and fair competition, on the basis of relevant, objective, transparent and non-discriminatory rules and criteria, this being a matter for the national court to determine. 1 Original language: Spanish. 2 Società Esercizi Aeroportuali SpA (‘SEA’). 3 Directive of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1). 4 Council Directive of 15 October 1996 on access to the groundhandling market at Community airports (OJ 1996 L 272, p. 36). 5 This decree transposes Directives 2004/17/EC and 2004/18/EC into Italian law (Codice dei contratti pubblici relativi a lavori, servizi e forniture in attuazione delle direttive 2004/17/CE e 2004/18/CE (GURI No 100 of 2 May 2006)). 6 This decree transposes Directive 96/67 into Italian law (Attuazione della direttiva 96/67/CE relativa al libero accesso al mercato dei servizi di assistenza a terra negli aeroporti della Comunità (GURI No 28 of 4 February 1999)). 7 According to the case-law of the Consiglio di Stato (Council of State) cited by the referring court (judgments 4934/2013 and 2026/2014), Article 213 of Legislative Decree No 163/2006 covers not only the operations of take-off, landing and management of aircraft, but also activities relating to passenger transit and security, baggage sorting and, in general, all services which are ordinarily complementary thereto. It has also been held that the concession of areas within airports for the provision of groundhandling services, as a form of exploitation of airport areas in connection with the activities normally carried on by air carriers, falls within the material scope of the legislation on special sectors. 8 Council Directive of 17 September 1990 on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1990 L 297, p. 1). 9 It distinguishes between passive public contracts (inter alia, those governed by Directive 2004/17), which represent a source of expenditure for contracting entities that purchase goods or services, and active public contracts, which include concessions over publicly owned property, for which the authorities receive income. 10 Paragraph 6.2 of the order for reference. 11 Ibidem. 12 Judgments of 10 March 2011, Privater Rettungsdienst und Krankentransport Stadler (C‑274/09, EU:C:2011:130), paragraphs 24 and 26, and of 8 September 2016, Politanò (C‑225/15, EU:C:2016:645), paragraphs 29 to 31. 13 Directive 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). 14 Judgment of 8 September 2016, Politanò (C‑225/15, EU:C:2016:645), paragraph 30. 15 Ibidem, paragraph 31. The EU legislature included these defining features of service concessions in Article 5(1)(b) of Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p. 1). 16 The economic content of the relationship between the parties involved is set out, in some countries, in a document approved by the managing body. That document usually specifies the amount of the fee (or similar financial obligation, of a public nature) to be paid (or performed) by the operator, in proportion to the areas assigned and, where appropriate, the different kinds of service provided. It may also establish the rate, or maximum price, that the operator may charge its customers, depending on the nature of the services they request, including handling services. 17 In its judgment of 16 October 2003, Flughafen Hannover-Langenhagen (C‑363/01, EU:C:2003:548), the Court held that Article 16(3) of Directive 96/67 enables the managing body of an airport to charge a fee for the use of airport facilities which takes account of that body’s interest in achieving a profit and which must be calculated in accordance with the criteria laid down in that article. 18 Judgment of 12 February 2015, Parliament v Council (C‑48/14, EU:C:2015:91), paragraph 45, citing judgments of 8 December 2011, France Télécom v Commission (C‑81/10 P, EU:C:2011:811), paragraph 100, and of 31 January 2013, LVK-56 (C‑643/11, EU:C:2013:55), paragraph 51. 19 Case C‑292/15, EU:C:2016:817. 20 Regulation of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70 (OJ 2007 L 315, p. 1). 21 The problem arose due to the differing scope of subcontracting, depending on whether Directive 2004/18 or Regulation No 1370/2007 applied. 22 Council Directive of 17 September 1990 on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1990 L 297, p. 1). 23 Recitals 5 to 7, reproduced in point 7 of this Opinion. 24 The Court drew attention to this objective in its judgment of 11 September 2014, Commission v Portugal (C‑277/13, EU:C:2014:2208), paragraph 48. 25 Judgment of 22 October 2015, Impresa Edilux and SICEF (C‑425/14, EU:C:2015:721), paragraph 20 and the case-law cited. 26 Recitals 11, 14 and 16 provide for the limitation of the number of suppliers for reasons of safety, security, capacity and available space, provided that those constraints are relevant, objective, transparent and non-discriminatory, in which case suppliers must be chosen on the basis of a transparent and impartial procedure. 27 According to information provided by SEA at the hearing, the access by suppliers of groundhandling services to Milan’s Malpensa airport is not subject to any prior selection procedure. 28 There is no record of Malpensa Logistica having challenged that award. 29 According to the order for reference (paragraph 3), SEA and Beta-Trans had claimed that Malpensa Logistica already had a storage area of 18 000 square metres, as well as a further 2 700 square metres of covered area, and that the managing body, in response to Malpensa Logistica’s requests, had ordered the construction of an additional covered area of 3 327 square meters to store cargo where it could be ‘protected from the weather’.