Judgment — ECLI:EU:C:2013:736
Date: 2013-11-14
Language of the case: Dutch
Court formation: Tenth Chamber
Subject matter: Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary — Judgment of the Court (Tenth Chamber), 14 November 2013 1. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Licence for services — Definition — Agreement for the supply of television services conferring on an economic operator the exclusive right to use the cable networks of inter-municipal associations — Included — Agreement obliging the economic operator to engage in the activity for which the licence was granted and authorising it to use it — Transfer of an operating risk to the economic operator (European Parliament and Council Directive 2004/18, Art. 1(4)) 2. Freedom of movement for persons — Freedom of establishment — Freedom to provide services — Direct grant of a licence for the supply of television services conferring an exclusive right to use cable networks — Obligation for the public authorities to observe the fundamental rules of the TFEU where there is a certain cross-border interest — Assessment by the national court (Arts 49 TFEU and 56 TFEU) 3. Freedom to provide services — Freedom of establishment — Licence for services of certain cross-border interest — Agreement concluded by public entities of one Member State and an undertaking of that Member State granting an exclusive right to engage in an economic activity — Infringement of the obligation of transparency — Reliance by an economic operator of that Member State before the courts of that State — Lawfulness (Arts 49 TFEU and 56 TFEU) 4. Freedom to provide services — Freedom of establishment — Licence for services of certain cross-border interest — Agreement concluded by public entities of one Member State and an undertaking of that Member State granting an exclusive right to engage in an economic activity — Direct grant of a licence for the supply of television services conferring an exclusive right to use cable networks — Not permissible — Justifications — Grounds of an economic nature — Principle of legal certainty — Not permissible (Arts 49 TFEU and 56 TFEU) 1. See the text of the decision. (see paras 26, 27) 2. See the text of the decision. (see paras 28-30) 3. Articles 49 TFEU and 56 TFEU must be interpreted as meaning that an economic operator in a Member State may, before the courts of that Member State, allege an infringement of the obligation of transparency under those articles occurring at the time of conclusion of an agreement whereby one or more public entities of that Member State have either granted to an economic operator of that same Member State a licence for services of certain cross-border interest or granted an economic operator the exclusive right to engage in an economic activity of cross-border interest. In the latter scenario, EU law imposes the same requirements on the concession-granting authority where the agreement did not oblige the tenderer to engage in the transferred activity, with the result that that agreement then confers authorisation to engage in an economic activity. Such an authorisation is no different from a service concession in terms of the obligation to comply with the fundamental rules of the Treaty and the principles flowing therefrom, as the exercise of that activity is liable to be of potential interest to economic operators in other Member States. (see paras 33, 34, operative part 1) 4. Articles 49 and 56 TFEU must be interpreted as meaning that the wish not to disregard certain rights which public entities have granted to an economic operator under a pre-existing agreement concerning the use of cable networks belonging to them cannot justify an extended scope being given to that agreement which is contrary to EU law in the form of a direct grant of a service concession or an exclusive right to engage in an activity of certain cross-border interest, including when it is for the purpose of putting an end to a dispute which has arisen between the parties concerned, for reasons entirely outside their control, as to the scope of that agreement. Moreover, grounds of an economic nature, such as the wish to avoid the depreciation of an economic activity, are not overriding reasons in the public interest liable to justify the direct grant of a licence for services relating to that activity or of an exclusive right to engage in that activity of certain cross-border interest, by way of derogation from the principles of equal treatment and non-discrimination enshrined in those articles. Moreover, the fact that the conclusion of the agreement in dispute coincides with the interests of consumers who, without it, would not have access to interactive television, is not really distinguishable from the ground relating to the depreciation of that activity but, on the contrary, is inextricably linked to it. Consequently, considerations which do not individually constitute overriding reasons in the public interest do not acquire that quality by virtue of being bundled together. Lastly, although the principle of legal certainty, which is a general principle of EU law, provides ample justification for observance of the legal effects of an agreement, including — in so far as that principle requires — in the case of an agreement concluded before the Court has ruled on the implications of the primary law on agreements of that kind and which, after the fact, turn out to be contrary to those implications, that principle may not be relied on to give an agreement an extended scope which is contrary to the principles of equal treatment and non-discrimination and the obligation of transparency deriving therefrom. (see paras 40, 42-44, operative part 2)