Judgment — ECLI:EU:C:2018:843
Date: 2018-10-18
Language of the case: Italian
Court formation: Eighth Chamber
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary — Judgment of the Court (Eighth Chamber), 18 October 2018 1. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Public procurement — Concept — Contract for pecuniary interest — Decision of the contracting authority to directly award financing to an operator for the manufacture of products to be supplied free of charge of charge to public authorities — Included (European Parliament and Council Directive 2004/18, Art. 1(2)(a)) 2. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Scope – Public contracts awarded ‘in-house’ — Not included – Contract for pecuniary interest establishing cooperation between public between public entities and intended to implement a public service task — Not included (European Parliament and Council Directive 2004/18, Art. 1(9)) 3. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Public supply contracts — National legislation making private hospitals (classified) to public procurement legislation where they manufacture or supply healthcare products free of charge to public health establishments in exchange for public financing — Not permissible (European Parliament and Council Directive 2004/18, Art. 1(2)(a) and 2) 1. Articles 1(2)(a) of 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 must be interpreted as meaning that the concept of ‘contract for pecuniary interest’ includes a decision by which a contracting authority directly awards, to a specific economic operator, and therefore without organising a public tendering procedure, specific-purpose funding for the manufacture of products to be supplied free of charge by that economic operator to various authorities which are exempt from payment of any consideration to the supplier, except for the payment of a fixed sum of EUR 180 per delivery, for transport costs. It follows that a contract, such as that at issue in the main proceedings, by which an economic operator undertakes to manufacture and supply a product to various authorities in exchange for specific-purpose funding granted for the achievement of that objective, falls within the definition of contract ‘for pecuniary interest’ within the meaning of Article 1(2)(a) of Directive 2004/18, even though the costs of production and distribution of that product are not fully covered by that grant or by the transport costs which may be charged to those authorities. (see paras 31, 32, operative part 1) 2. See the text of the decision. (see paras 35, 36, 39, 40) 3. Article 1(2)(a) and Article 2 of Directive 2004/18 must be interpreted as precluding national rules, such as those at issue in the main proceedings which, by treating private ‘classified’ hospitals as equivalent to public hospitals on account of their integration into the system of national public healthcare planning governed by special agreements that are distinct from ordinary accreditation relationships with other private parties that participate in the system of provision of healthcare services, take them outside the scope of national and EU rules on public contracts, including in cases where such classified hospitals are entrusted with the manufacture and supply, free of charge, to public healthcare establishments of specific products which are necessary for the provision of healthcare services and where, at the same time, they receive public funding specifically for the manufacture and supply of those products. (see para. 43, operative part 2)