Judgment;Summary — ECLI:EU:C:2020:468
Date: 2020-06-11
Language of the case: French
Court formation: Ninth Chamber
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: France

Translation C-472/19 - 1 
Case C-472/19 
Request for a preliminary ruling 
Date lodged: 
20 June 2019 
Referring court: 
Conseil d’État (France) 
Date of the decision to refer: 
14 June 2019 
Applicant: 
Vert Marine SAS 
Defendant: 
Premier ministre 
Ministre de l’Économie et des Finances 
      
CONSEIL D’ÉTAT 
acting 
in its judicial capacity 
[...] 
Having regard to the following procedure: 
By an application and a reply, lodged on 20 March and 26 September 2018 at the 
secretariat of the judicial section of the Conseil d’État (Council of State, France), 
Vert Marine requests that the Conseil d’État: 
1) annul as ultra vires the rejection implied by the lack of response from the 
Premier ministre (Prime Minister, France) to its request for the repeal of 
Articles 19 and 23 of décret n° 2016-86 du 1er février 2016 relatif aux contrats de 
concession (Decree No 2016-86 of 1 February 2016 on concession contracts); 
EN 
REQUEST FOR A PRELIMINARY RULING OF 14. 6. 2019 – CASE C-472/19 
 
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2) order the Premier ministre (Prime Minister) to repeal those provisions and to 
replace them with provisions which make it possible to ensure that that decree 
complies with EU law within a period of three months following the notification 
of the decision to be delivered; 
[...] 
It submits that the regulatory provisions the repeal of which it has requested: 
- [...] [consideration of national constitutional law] 
- implement a system of mandatory exclusions from tendering which are 
incompatible with Article 38 of Directive 2014/23/EU of 26 February 2014 on the 
award of concession contracts. [Or. 2] 
By a statement of defence, lodged on 26 July 2018, the Premier ministre (Prime 
Minister) declares that he endorses the observations submitted by the ministre de 
l’économie et des finances (Minister for the Economy and Finance). 
By a statement of defence, lodged on 27 July 2018, the ministre de l’économie et 
des finances (Minister for the Economy and Finance) contends that the action 
should be dismissed. He submits that the application is inadmissible since Vert 
Marine has no interest in bringing proceedings and the pleas raised by the 
applicant are unfounded. 
[...] 
Having regard to: 
- the Treaty on the Functioning of the European Union; 
- Directive 2014/23/EU of the European Parliament and of the Council of 
26 February 2014; 
- the code de la commande publique (Public Procurement Code); 
- the code pénal (Criminal Code); 
- the code de procédure pénal (Code of Criminal Procedure); 
- Order No 2016-65 of 29 January 2016; 
- Decree No 2018-1075 of 3 December 2018; 
[...] 
Whereas: 
VERT MARINE 
 
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1. The competent authority, which has received a request for the repeal of an 
unlawful provision, must comply with that request, whether that provision has 
been unlawful since the date it was signed, or whether it is unlawful as a result of 
factual or legal circumstances which occurred after that date. Where, subsequent 
to the bringing of an action against the refusal to repeal those regulatory 
provisions, the authority which adopted the provision at issue expressly or 
implicitly repeals it, the dispute arising from that refusal to repeal the provisions 
becomes devoid of purpose. The situation is different, however, where that same 
authority reproduces, in a new regulation, the provisions it has repealed, without 
amending them or by making only editorial amendments to them. 
2. Section II of Article 19 of the décret du 1er février 2016 relatif aux contrats de 
concession (Decree of 1 February 2016 on concession contracts) provides that 
each candidate for the award of a concession contract must produce all of the 
documents showing that he is not subject to any of the exclusions from the 
procedure for procurement by concession contracts laid down in Articles 39, 40 
and 42 of the Order of 29 January 2016 on concession contracts. Section II of 
Article 23 of that decree adds, in its second subparagraph, that inadmissible 
applications are to be eliminated, stipulating that, inter alia, [Or. 3] ‘an application 
submitted by a candidate who is unable to take part in the procurement procedure 
pursuant to Articles 39, 40, 42 and 44 of the Order of 29 January 2016 shall be 
inadmissible’. 
3. Although it is clear from the documents before the court that Articles 19 and 23 of 
the décret du 1er février 2016 relatif aux contrats de concession (Decree of 
1 February 2016 on concession contracts) were repealed by the décret du 3 
décembre 2018 portant partie réglementaire du code de la commande publique 
(Decree of 3 December 2018 on the regulatory part of the Public Procurement 
Code), those provisions have been reproduced, receiving only editorial 
amendments, in Articles R. 3123-16 to R. 3123-21 of the code de la commande 
publique (Public Procurement Code). Therefore, the claims for their repeal have 
not become devoid of purpose and must be regarded as being directed against 
those latter articles. 
Admissibility of the application: 
4. It is clear from the documents before the court that Vert Marine specialises in the 
delegated management of sports and leisure facilities and that the core part of its 
business stems from the use of concession contracts with public authorities. This 
therefore shows an interest which gives it standing to institute proceedings on the 
ground of misuse of powers against the refusal to repeal the regulatory provisions 
at issue in so far as they do not provide for a compliance mechanism to enable an 
economic operator that is a candidate for the award of a concession contract to 
avoid the exclusions from tendering provided for in the event of a conviction for 
certain offences. 
5. [...]. [considerations of national procedural law] 
REQUEST FOR A PRELIMINARY RULING OF 14. 6. 2019 – CASE C-472/19 
 
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The substantive legality of the regulatory provisions at issue: 
6. Vert Marine submits that Articles 19 and 23 of the Decree of 1 February 2016, the 
provisions of which have been reproduced in the code de la commande publique 
(Public Procurement Code), are unlawful in so far as they apply Article 39 of the 
Order of 29 January 2016, which is incompatible with the objectives of Article 38 
of Directive 2014/23/EU of the European Parliament and of the Council of 
26 February 2014 on the award of concession contracts. 
7. Contrary to the submissions of the ministre de l’économie et des finances 
(Minister for the Economy and Finance) in the defence, such a plea may rightly be 
raised since Articles 19 and 23 of the decree, which list the documents to show 
that the [Or. 4] candidate is not subject to any exclusions from tendering, must be 
regarded as having been adopted for the purposes of Article 39 of the order. 
8. Article 38 of Directive 2014/23/EU lays down compulsory or optional grounds for 
excluding economic operators from concession award procedures. Paragraph 4 
thereof sets out the offences in respect of which the conviction of an economic 
operator necessarily results in exclusion from participating in concession award 
procedures. However, in accordance with Article 38(9), ‘Any economic operator 
that is in one of the situations referred to in paragraphs 4 and 7 may provide 
evidence to the effect that measures taken by the economic operator are sufficient 
to demonstrate its reliability despite the existence of the relevant ground for 
exclusion. If such evidence is considered to be sufficient, the economic operator 
concerned shall not be excluded from the procedure. / For this purpose, the 
economic operator shall prove that it has paid or undertaken to pay compensation 
in respect of any damage caused by the criminal offence or misconduct, clarified 
the facts and circumstances in a comprehensive manner by actively collaborating 
with the investigating authorities and taken concrete technical, organisational and 
personnel measures that are appropriate to prevent further criminal offences or 
misconduct. The measures taken by the economic operators shall be evaluated 
taking into account the gravity and particular circumstances of the criminal 
offence or misconduct. Where the measures are considered to be insufficient, the 
economic operator concerned shall receive a statement of the reasons for that 
decision. / An economic operator which has been excluded by a final judgment 
from participating in procurement or concession award procedures shall not be 
entitled to make use of the possibility provided under this paragraph during the 
period of exclusion resulting from that judgment in the Member States where the 
judgment is effective’. 
Article 38(10) provides: ‘By law, regulation or administrative provision and 
having regard for Union law, Member States shall specify the implementing 
conditions for this Article. They shall in particular, determine the maximum 
period of exclusion if no measures as specified in paragraph 9 are taken by the 
economic operator to demonstrate its reliability. Where the period of exclusion 
has not been set by final judgment, that period shall not exceed five years from the 
date of the conviction by final judgment in the cases referred to in paragraph 4 
VERT MARINE 
 
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and three years from the date of the relevant event in the cases referred to in 
paragraph 7’.  
Those provisions are clarified by recital 71 of the directive, in accordance with 
which: ‘Allowance should, however, be made for the possibility that economic 
operators can adopt compliance measures aimed at remedying the consequences 
of any criminal offences or misconduct and at effectively preventing further 
occurrences of the misbehaviour. Those measures might consist in particular of 
personnel and organisational measures such as the severance of all links with 
persons or organisations involved in the misbehaviour, appropriate staff 
reorganisation measures, the implementation of reporting and control systems, 
the creation of an internal audit structure to monitor compliance and the adoption 
of internal liability and compensation rules. Where such measures offer sufficient 
guarantees, the economic operator in question should no longer be excluded on 
those grounds alone. Economic operators should have the possibility to request 
that compliance measures taken with a view to possible admission to the 
concession award procedure be examined. However, it should be left to Member 
States to determine the exact procedural and substantive conditions applicable in 
such cases. They should, in particular, be free to decide whether to allow the 
individual contracting authorities or contracting entities to carry out the relevant 
assessments or to entrust other authorities on a central or decentralised level with 
that task’. [Or. 5] 
9. Under Article 39 of the ordonnance du 29 janvier 2016 relative aux contrats de 
concession (Order of 29 January 2016 on concession contracts), now reproduced 
in Article L. 3123-1 of the code de la commande publique (Public Procurement 
Code): ‘The following shall be excluded from the procedure for procurement by 
concession contracts: / (1) Persons who have been the subject of a conviction by 
final judgment for one of the offences listed in Articles 222-34 to 222-40, 373-7, 
373-3, 374-7, 324-1, 324-5, 324-6, 421-1 to 421-2-4, 421-5, 432-10, 432-11, 432-
12 to 432-16, 433-1, 433-2, 434-9, 434-9-1, 435-3, 435-4, 435-9, 435-10, 441-1 to 
441-7, 441-9, 445-1 to 445-2-1 or 450-1 of the code pénal (Criminal Code), 
Articles 1741 to 1743, 1746 or 1747 of the code général des impôts (General Tax 
Code), and, in respect of concession contracts which are not defence or security 
concession contracts, Articles 225-4-1 and 225-4-7 of the code pénal (Criminal 
Code), or for concealing such offences, and for equivalent offences provided for in 
the legislation of another Member State of the European Union. / A conviction by 
final judgment for one of those offences or for concealing one of those offences 
from a member of the managerial, administrative, management or supervisory 
board or from a natural person who has the powers of representation, decision or 
control of a legal person shall lead to that legal person being excluded from the 
procedure for procurement by concession contracts, so long as that natural 
person performs those duties. / Exclusion from the procedure for procurement by 
concession contracts pursuant to point 1 shall apply for a period of five years 
from the date of delivery of the sentence ...’. 
REQUEST FOR A PRELIMINARY RULING OF 14. 6. 2019 – CASE C-472/19 
 
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10. Vert Marine submits that the French law is contrary to the objectives of the 
Directive of 26 February 2014 since neither the provisions of national law cited in 
the preceding paragraph nor any other provision provide for the possibility, for an 
operator that has been convicted by final judgment of one of the offences listed 
and that, therefore, in accordance with Article 39(1) of the Order of 29 January 
2016, is excluded from procedures for procurement by concession contracts for a 
period of five years, to implement specific measures intended to demonstrate its 
reliability to a contracting authority. 
11. The response to that plea depends on whether the Directive of 26 February 2014 
must be interpreted as strictly precluding the legislation of a Member State from 
not giving an economic operator that falls under a ground for exclusion such as 
those set out in Article 39(1) of the Order of 29 January 2016 the opportunity to 
provide evidence to the effect that the measures it has taken are sufficient to 
demonstrate its reliability to the contracting authority despite the existence of that 
ground for exclusion, even if this concerns offences of specific gravity that the 
legislature intended to suppress, with the aim of promoting accountability in 
public procurement, in order to ensure that candidates are exemplary. 
12. Moreover, the ministre de l’économie et des finances (Minister for the Economy 
and Finance) submits, in the defence, that French law contains various 
mechanisms, such as release – which enables the ordinary court of law to release, 
fully in or in part, a person from any prohibition, disqualification or incapacity as 
a result of a criminal conviction –, judicial rehabilitation – which enables any 
incapacity or disqualification resulting from a conviction to be erased – and the 
removal of any mention of the conviction from Bulletin No 2 of the criminal 
record, as provided for in Article 132-21 and Article 133-12 of the code pénal 
(Criminal Code) and Article 775-1 of the code de procédure pénal (Code of 
Criminal Procedure), and that the directive leaves it to the Member States to 
decide whether to allow the individual contracting authorities or contracting 
entities to assess the relevance of compliance measures or to entrust other 
authorities on a central or decentralised level with those tasks. The response to the 
plea raised in the application therefore also depends on whether such mechanisms, 
implemented by [Or. 6] a judicial authority, may be regarded as adequate 
compliance mechanisms, which presupposes determining whether a judicial 
authority may be regarded as an authority on a central or decentralised level, 
within the meaning of recital 71 of the directive, and whether the conditions for 
granting judicial measures such as those provided for in French law may enable 
them to be treated in the same way as compliance mechanisms in accordance with 
the directive. 
13. Those questions are decisive for the outcome of the dispute before the Conseil 
d’État and present serious difficulties. Accordingly, they must be referred to the 
Court of Justice of the European Union under Article 267 of the Treaty on the 
Functioning of the European Union and, pending a ruling by the Court of Justice, 
the proceedings brought by Vert Marine must be stayed. 
VERT MARINE 
 
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DECIDES: 
Article 1: The proceedings brought by Vert Marine shall be stayed pending a 
ruling by the Court of Justice of the European Union on the following questions: 
1. Must Directive 2014/23/EU of the European Parliament and of the Council 
of 26 February 2014 on the award of concession contracts be interpreted as 
precluding the legislation of a Member State, with an objective of promoting 
accountability in public procurement, from not giving an economic operator that 
has been convicted by final judgment of an offence of specific gravity, and that, 
on that ground, is the subject of a measure prohibiting it from participating in a 
procedure for procurement by a concession contract for a period of five years, the 
opportunity of providing evidence to the effect that the measures it has taken are 
sufficient to demonstrate its reliability despite the existence of that ground for 
exclusion? 
2. If Directive 2014/23/EU of the European Parliament and of the Council of 
26 February 2014 allows the Member States to entrust authorities other than the 
contracting authority concerned with the responsibility of assessing the 
compliance mechanism for operators, does that power enable that authority to 
entrust the courts with that mechanism? If so, can mechanisms such as the 
provisions of French law on release, judicial rehabilitation and the removal of any 
mention of the conviction from Bulletin No 2 of the criminal record be treated in 
the same way as compliance mechanisms in accordance with the directive? 
[...] [Or. 7] [...] [procedural information]