Opinion of the Advocate General — ECLI:EU:C:2017:962
Date: 2017-12-13
Language of the case: Finnish
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Finland

Summary — Judgment of the Court (Third Chamber) 1 March 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 — Scheme for obtaining services open to any economic operator who satisfies previously established conditions — Not 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 — Award of contracts — Award criteria — Criteria relating to the suitability of tenderers to perform the contract — Not included (European Parliament and Council Directive 2004/18, Art. 53) 1. Article 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 a farm advisory scheme, such as that at issue in the main proceedings, through which a public entity admits all the economic operators who meet the suitability requirements set out in the invitation to tender and who pass the examination referred to in that invitation to tender, even if no new operator can be admitted during the limited validity period of that scheme, does not constitute a public contract within the meaning of that directive. In so far as the Agency admits all the candidates who satisfy those requirements, it is clear, as the Advocate General has pointed out in point 39 of his Opinion, that it makes no selection among the admissible tenders and that it confines itself to ensuring that qualitative criteria are respected. The fact that, as is clear from the decision to refer, access to the farm advisory scheme at issue in the main proceedings is limited to a preliminary period, which ends when the examination is organised or, at the latest, when the final award decision is published, and that it is therefore not possible for an adviser, such as Ms Tirkkonen, to join that farm advisory scheme, cannot call that assessment into question. As the Advocate General has pointed out in points 51 and 52 of his Opinion, the fact that, unlike the context that gave rise to the judgment of 2 June 2016, Falk Pharma (C‑410/14, EU:C:2016:399), a farm advisory scheme, such as that at issue in the main proceedings, is not permanently open to interested economic operators is irrelevant. In the present case, the decisive factor is that the contracting authority has not referred to any award criteria for the purpose of comparing and classifying admissible tenders. In the absence of that factor, which is, as is apparent from paragraph 38 of the judgment of 2 June 2016, Falk Pharma (C 410/14, EU:C:2016:399), intrinsically linked to the regulation of public contracts, a farm advisory scheme, such as that at issue in the main proceedings, cannot constitute a public contract within the meaning of Article 1(2)(a) of Directive 2004/18. (see paras 33-35, 41, operative part) 2. See the text of the decision. (see para. 37)