Opinion of the Advocate General — ECLI:EU:C:2016:480
Date: 2016-06-28
Language of the case: German
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services;Transport
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Fourth Chamber), 27 October 2016 1. Questions referred for a preliminary ruling — Reference to the Court — National court or tribunal within the meaning of Article 267 TFEU — Concept — Body competent to hear appeals concerning the award of public contracts — Included (Art. 267 TFEU) 2. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2014/24 — Temporal application — Decision of the contracting authority choosing the type of procedure to be followed for the award of a contract which is adopted before the period prescribed for transposition expires — Directive not applicable (European Parliament and Council Directive 2014/24, Art. 90(1)) 3. Transport — Public passenger transport services by rail and by road — Regulation No 1370/2007 — Award of contracts for public passenger transport services by bus — Applicable provisions (European Parliament and Council Regulation No 1370/2007, Arts 4(7) and 5(1); European Parliament and Council Directive 2004/18, Art. 25) 4. Transport — Public passenger transport services by rail and by road — Regulation No 1370/2007 — Award of contracts for public passenger transport services by bus — Contracting authorities’ discretion as to the intensity of recourse to subcontracting — Requirement that the selected operator perform a major part of the public passenger transport services itself — Lawfulness (European Parliament and Council Regulation No 1370/2007, Art. 4(7)) 1. See the text of the decision. (see paras 28, 29) 2. See the text of the decision. (see paras 32) 3. Article 5(1) of Regulation No 1370/2007 on public passenger transport services by rail and by road must be interpreted as meaning that, in a contract award procedure for public passenger transport services by bus, Article 4(7) of that regulation remains applicable to that contract. The second sentence of Article 5(1) of Regulation No 1370/2007 contains a derogation from the general rule established in the first sentence of Article 5(1) of that regulation that a contract for the provision of public passenger transport services by bus must in principle be awarded in accordance with the rules laid down in that regulation, and the exact scope of that derogation is then specified in the third sentence of Article 5(1) of that regulation setting out the non-application of Article 5(2) to (6) thereof. No other provision of Article 5 or of Regulation No 1370/2007 further broadens the scope of that derogation. It follows that, for the purposes of the award of a contract for public passenger transport services by bus, solely the provisions of Article 5(2) to (6) of Regulation No 1370/2007 are not to be applied, whereas the other provisions of that regulation remain applicable. Moreover, in so far as both Article 4(7) of that regulation and Article 25 of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, as amended by Regulation No 1336/2013, 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. (see paras 36, 39-41, 47, 48, operative part 1) 4. Article 4(7) of Regulation No 1370/2007 on public passenger transport services by rail and by road must be interpreted as meaning as not precluding the contracting authority from setting at 70% the proportion of self-provision by the operator responsible for the administration and performance of a contract for public passenger transport by bus. In fact, the EU legislature, as regards the subcontracting of the administration and performance of a public transport service governed by that regulation, conferred a broad discretion on the competent authorities. In that regard, in so far as it is permissible for a contracting authority to prohibit the contractor subcontracting public passenger transport services by bus, in the event of the award of that contract in accordance with Article 4(7) of Regulation No 1370/2007, that discretion includes the possibility of prohibiting subcontracting solely for part of a contract. Furthermore, where subcontracting is envisaged in the context of the administration and performance of public passenger transport services by bus, the second sentence of Article 4(7) of Regulation No 1370/2007 does not authorise full subcontracting for the contract concerned, since it provides that the operator responsible for that service is itself required to perform a major part of it. It is only if the public service contract covers at the same time the design, construction and operation of public passenger transport services that full subcontracting for the operation of those services may be authorised under the third sentence of Article 4(7) of that regulation. (see paras 51-53, 57, operative part 2)