Opinion of the Advocate General — ECLI:EU:C:2017:578
Date: 2017-07-20
Language of the case: German
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Austria

Summary — Judgment of the Court (Grand Chamber), 20 March 2018 1. Approximation of laws — Procedures for the award of public service contracts — Directives 92/50 and 2004/18 — Scope — Contracts requiring special security measures — Not included — Obligation to show that it is not necessary to carry out a competitive tendering procedure for the award of the contract — Scope (Art. 346(1)(a) TFEU; European Parliament and Council Directive2004/18, Art. 14; Council Directive92/50, Art. 4(2)) 2. Approximation of laws — Procedures for the award of public service contracts — Directives 92/50 and 2004/18 — Scope — Exceptions — Restrictive interpretation (Art. 346(1)(a) TFEU; European Parliament and Council Directive2004/18, Art. 14; Council Directive92/50, Art. 4(2)) 3. Approximation of laws — Procedures for the award of public service contracts — Directives 92/50 and 2004/18 — Contracts for the production of identity documents and other official documents — Award without competitive tendering procedure for the purposes of protecting the essential security interests of the Member State concerned — No valid justification for the failure to carry out a competitive tendering procedure — Not permissible — Failure to fulfil obligations (Art. 346(1)(a) TFEU; European Parliament and Council Directive 2004/18, Arts 14, 20 and 23 to 55; Council Directive92/50, Arts 4(2), 8 and 11 to 37] 4. Approximation of laws — Procedures for the award of public service contracts — Directives 92/50 and 2004/18 — Scope — Contract with a value below the threshold laid down by the directive — Not included — Application of fundamental rules and the general principles of the FEU Treaty — Condition — Contract having a certain cross-border interest — Criteria for assessment (European Parliament and Council Directive 2004/18, Art. 7; Council Directive 92/50, Art. 7) 1. Under Article 346(1)(a) TFEU, no Member State is to be obliged to supply information the disclosure of which it considers to be contrary to its essential security interests. That provision, given the general nature of its wording, is intended to apply, inter alia, in the field of non-military public contracts, such as contracts for the production of identity documents and other official documents. Nevertheless, measures adopted by the Member States in connection with the legitimate requirements of national interest are not excluded in their entirety from the application of EU law solely because they are taken, inter alia, in the interests of public security. Therefore, even though Article 4(2) of Directive 92/50 relating to the coordination of procedures for the award of public service contracts, and Article 14 of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, afford the Member States discretion in deciding the measures considered to be necessary for the protection of their essential security interests, those articles cannot, however, be construed as conferring on Member States the power to derogate from the provisions of the FEU Treaty simply by invoking those interests. A Member State which wishes to avail itself of those derogations must show that such derogation is necessary in order to protect its essential security interests. Such a requirement also applies to the extent that that Member State relies, in addition, on Article 346(1)(a) TFEU. Accordingly, a Member State which wishes to avail itself of those derogations must establish that the protection of such interests could not have been attained within a competitive tendering procedure as provided for by Directives 92/50 and 2004/18. (see paras 72, 76, 78, 79) 2. See the text of the decision. (see para. 77) 3. A Member State which, first, awards, without an EU-wide call for tenders, service contracts for the production of passports, residence permits, identity cards, driving licences and vehicle registration certificates directly to a private company and, second, which maintains national provisions which require contracting authorities to award those service contracts directly to that company, has failed to fulfil its obligations under Article 4(2) and Article 8 of Directive 92/50 relating to the coordination of procedures for the award of public service contracts, read in conjunction with Articles 11 to 37 of that directive, and Article 14 and Article 20 of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, read in conjunction with Articles 23 to 55 of that directive. Failure to comply with the procurement procedures laid down by those directives is disproportionate having regard to the objective pursued by the Member State of preventing the disclosure of sensitive information relating to the production of official documents. In that regard, Article 346(1)(a) TFEU, Article 4(2) of Directive 92/50 and Article 14 of Directive 2004/18 cannot be effectively relied on in order to justify the failure to comply with the procurement procedures laid down by those two directives. In the first place, while accepting that the centralised performance of the contracts in question could be regarded as a means of protecting essential national security interests, compliance with the procurement procedures laid down, respectively, in Article 8 of Directive 92/50, read in conjunction with Articles 11 to 37 of that directive, and in Article 20 of Directive 2004/18, read in conjunction with Articles 23 to 55 of that directive, does not preclude the performance of the contracts in question from being entrusted to a single operator. In the second place, as regards the need for national authorities to be able to ensure, in the exercise of the powers conferred on them by national law, effective administrative supervision of a single contractor having its production and storage premises in the territory of that Member State, it must be found that, although, admittedly, the contractor entrusted with performance of the printing contract in question must meet the security requirements in order to ensure the confidentiality of the information to be protected, it must also be shown that the administrative supervision that may be carried out by the national authorities is the only means of ensuring that confidentiality and that it is necessary, to that end, to dispense with the application of the provisions relating to public procurement laid down by Directives 92/50 and 2004/18. In the last place, as regards the need to guarantee the trustworthiness of the successful tenderer, although the Member States need to be able to satisfy themselves that, for the award of public contracts, only reliable undertakings are awarded those contracts within the framework of a system which ensures compliance with special secrecy and security standards as regards the printing of documents, it must also be established that the confidentiality of the data communicated could not be sufficiently guaranteed if the printing of those documents were awarded to an undertaking other than the successful tenderer following a tendering procedure. In that regard, the requirement to impose an obligation of confidentiality does not in itself prevent the use of a competitive tendering procedure for the award of a contract. Furthermore, the confidential nature of data can be protected by a duty of secrecy, without it being necessary to contravene public procurement procedures. (see paras 82, 84, 88-90, 94-96, 111) 4. See the text of the decision. (see paras 104-107)