Information;Order — ECLI:EU:C:2023:289
Date: 2023-03-31
Language of the case: Spanish
Court formation: Ninth Chamber
Subject matter: Right of establishment;Internal market - Principles;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Spain

Summary C-676/20 – 1 
Case C-676/20 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
11 December 2020 
Referring court: 
Tribunal Superior de Justicia de Aragón (High Court of Justice, 
Aragon, Spain) 
Date of the decision to refer: 
23 November 2020 
Applicant: 
Asociación Estatal de Entidades de Servicios de Atención a 
Domicilio (ASADE) 
Defendant: 
Consejería de Sanidad de la Diputación General de Aragón 
  
Subject matter of the main proceedings 
The dispute in the main proceedings concerns the legality of legislation of the 
Autonomous Community of Aragon which permits contracting authorities to 
make use of arrangements with private non-profit organisations to provide social 
services to persons without following the procedures set out in EU public 
procurement legislation. 
Purpose and legal basis of the request for a preliminary ruling 
Request for a preliminary ruling on interpretation – Article 267 TFEU – Public 
procurement – Articles 49 and 56 TFEU – Directive 2014/24/EU – Directive 
2006/123/EC – National legislation which permits contracting authorities to make 
use of arrangements with private non-profit organisations to provide social 
services to persons without following the procedures laid down in EU public 
procurement legislation 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-676/20 
 
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Questions referred 
1. Is national legislation which permits contracting authorities to make use of 
agreements with private non-profit organisations ― not solely voluntary 
associations ― to provide all manner of social services to persons in return 
for reimbursement of costs, without following the procedures in the 
Procurement Directive [2014/24/EU] and irrespective of the estimated value, 
simply by classifying the arrangements in question as non-contractual, 
compatible with EU law ― Article 49 TFEU and Articles 76 and 77 of 
Directive 2014/24/EU of the European Parliament and of the Council of 
26 February 2014 (as read with Article 74 and Annex XIV thereof)? 
2. Is national legislation compatible with EU law ― Article 49 TFEU and 
Articles 76 and 77 of Directive 2014/24/EU of the European Parliament and 
of the Council of 26 February 2014 (as read with Article 74 and Annex XIV 
thereof) ― when, with regard to the provision of health and social services 
of general interest, it enables public procurement legislation to be avoided 
through the use of public-private agreements that supplement or replace 
direct provision, not because such agreements are a more appropriate way to 
provide these services but because they are a means to achieve specific 
social policy objectives which affect the way in which the service is 
provided or which the service provider must satisfy in order to be selected, 
even if the principles of advertising, competition and transparency continue 
to apply? 
3. If so, is it compatible with EU law ― the provisions cited above, and also 
Article 15(2)(b) of Directive 2006/123/EC of the European Parliament and 
of the Council of 12 December 2006 on services in the internal market ― to 
restrict these arrangements solely and exclusively to non-profit organisations 
(not solely voluntary associations), even if the principles of transparency and 
advertising are observed? 
4. Having regard to Article 15(2)(b) of the Services Directive [2006/123/EC], 
can giving contracting authorities discretion to make use of public-private 
agreements in order to appoint non-profit organisations to manage social and 
health services be interpreted as making access to such services conditional 
on taking a specific legal form? And if the answer to this question is in the 
affirmative, is national legislation such as that at issue here (which the State 
has not notified to the Commission with regard to the requirement 
concerning legal form) lawful under Article 15(7) of the Services Directive? 
5. If the answers to the previous questions are in the affirmative, must 
Articles 49 and 56 TFEU, Articles 76 and 77 of the Public Procurement 
Directive [2014/24/EU] 2014 (as read with Article 74 and Annex XIV 
thereof) and Article 15(2) of Directive 2006/123/EC of the European 
Parliament and of the Council of 12 December 2006 on services in the 
internal market be interpreted as permitting contracting authorities, when 
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selecting non-profit organisations (not solely voluntary associations) with 
which to enter into agreements to provide all manner of social services to 
persons, to include not only the selection criteria set out in Article 2(2)(j) of 
the said directive but also the criterion that the organisation be established in 
the place or geographical area where the service is to be provided? 
Provisions of EU law cited 
Articles 49 and 56 TFEU. 
Directive 2014/24/EU of the European Parliament and of the Council of 
26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 
2014 L 94, p. 65): recitals 6 and 114 and Articles 76 and 77 (as read with 
Article 74 and Annex XIV) 
Directive 2006/123/EC of the European Parliament and of the Council of 
12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36): 
Article 15(2) and (7) 
Judgment of the Court of Justice of 19 December 2012, Ordine degli Ingegneri 
della Provincia di Lecce and Others (C-159/11, EU:C:2012:817) 
Judgment of the Court of Justice of 13 June 2013, Piepenbrock (C-386/11, 
EU:C:2013:385) 
Judgment of the Court of Justice of 19 June 2014, Centro Hospitalar de Setúbal 
and SUCH (C-574/12, EU:C:2014:2004) 
Judgment of the Court of Justice of 11 December 2014, Azienda sanitaria locale 
n. 5 ‘Spezzino’ and Others (C-113/13, EU:C:2014:2440) 
Judgment of the Court of Justice of 28 January 2016, CASTA and Others 
(C-50/14, EU:C:2016:56) 
Provisions of national law cited 
National law 
Ley 9/2017, de 8 de noviembre, de Contratos del Sector Público, por la que se 
transponen al ordenamiento jurídico español las Directivas del Parlamento 
Europeo y del Consejo 2014/23/UE y 2014/24/UE, de 26 de febrero de 2014 (Law 
9/2017 of 8 November 2017 on Public Sector Procurement, which transposes 
Directives 2014/23/EU and 2014/24/EU of the European Parliament and of the 
Council of 26 February 2014 into Spanish law, ‘National Law 9/2017’): preamble, 
Article 11(6) and 47th to 49th additional provisions 
Autonomous Community law 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-676/20 
 
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Ley Orgánica 5/2007, de 20 de abril, de reforma del Estatuto de Autonomía de 
Aragón (Organic Law 5/2007 of 20 April 2007 amending the Aragonese Statute of 
Autonomy): Article 71(34) and (55), and Article 73 
Ley 11/2016, de 15 de diciembre, de acción concertada para la prestación a las 
personas de servicios de carácter social y sanitario (Law 11/2016 of 15 December 
2016 on public-private agreements for the provision of social and health services 
to the person, ‘Autonomous Community Law 11/2016’): preamble, Articles 2 to 6, 
4th additional provision and 2nd final provision 
Decreto 62/2017, de 11 de abril, del Gobierno de Aragón, sobre acuerdos de 
acción concertada de servicios sanitarios y convenios de vinculación con 
entidades públicas y entidades sin ánimo de lucro (Decree 62/2017 of the 
Government of Aragon of 11 April 2017 on public-private health service 
agreements and cooperation agreements with public and non-profit organisations, 
‘Autonomous Community Decree’ 62/2017’): Articles 1, 3, 4, 6, 7 and 9 to 13, 1st 
and 2nd additional provisions and sole transitional provision 
Orden SAN/1221/2017, de 21 de julio, por la que se establecen los precios y 
tarifas máximas aplicables en la prestación de servicios sanitarios con medios 
ajenos al Sistema de Salud de Aragón (Order SAN/1221/2017 of 21 July 2017 
laying down maximum prices and tariffs for the provision of health services other 
than directly by the Aragon Health Service, ‘Autonomous Community Order 
SAN/1221/2017’): Article 2 
Orden del Consejero de Sanidad por la que se aprueba el expediente relativo al 
acuerdo de acción concertada para la atención en dispositivos asistenciales de 
carácter residencial para enfermos de SIDA en la Comunidad Autónoma de 
Aragón, de 21 de agosto de 2017 (Order by the Minister for Health approving the 
procedure concerning the public-private agreement for the provision of residential 
care for AIDS patients in the Autonomous Community of Aragon, ‘Autonomous 
Community Order on care for AIDS patients’) 
Brief summary of the facts and the main proceedings 
Legislative summary 
1 By virtue of the powers conferred on it in respect of social services by the Spanish 
Constitution and the powers conferred on it by the Statute of Autonomy in 
particular as regards social action, health, public health and education, the 
Autonomous Community of Aragon passed Autonomous Community Law 
11/2016; implementing regulations were introduced by Autonomous Community 
Decree 62/2017. In essence, this legislation established and regulated the use of 
public-private agreements for the provision of social and health services to the 
person; it provided that public-private agreements could be entered into only with 
public-sector bodies and non-profit organisations (with for-profit entities therefore 
being excluded). The legislation was supplemented by Autonomous Community 
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Order SAN/1221/2017, which established tariffs for the provision of outsourced 
health services. 
2 The above legislation provided the basis for the adoption of the Autonomous 
Community Order on care for AIDS patients, which is being directly challenged 
in these proceedings. 
3 It should be noted that all the Autonomous Community legislation cited was 
passed before the enactment of National Law 9/2017, which governs public 
procurement in Spain – over which the State has exclusive jurisdiction – and 
which transposes Directive 2014/24 (among others) into Spanish law. 
Main proceedings 
4 In October 2017 the Asociación Estatal de Entidades de Servicios de Atención a 
Domicilio (State Association of Domiciliary Care Providers, ‘ASADE’) lodged an 
administrative-law action with the referring court against the Autonomous 
Community Order on care for AIDS patients. In that action, in addition to seeking 
to have the said order declared void, it also sought the annulment of Autonomous 
Community Order SAN/1221/2017 and Autonomous Community Decree 62/2017 
and requested that the matter be referred to the Court of Justice for an 
interpretation of the compatibility of Autonomous Community Law 11/2016 
(specifically Article 2) and the aforesaid Autonomous Community Decree 
62/2017 with Article 49 TFEU, Article 77 of Directive 2014/24 and Article 15(2) 
of Directive 2006/123. 
Main arguments of the parties to the main proceedings 
5 The applicant, ASADE, argues that a reference to the Court of Justice for a 
preliminary ruling on the interpretation of Autonomous Community Law 11/2016 
and Autonomous Community Decree 62/2017 is necessary because Autonomous 
Community legislation cannot depart from the legislation governing contracts. It 
contends that the Autonomous Community legislation establishes procurement 
procedures which are similar to those for contracts for services but which are open 
only to non-profit organisations, and it is therefore contrary to Article 49 TFEU 
and Article 15 of Directive 2006/123. In its view, according to the case-law of the 
Court of Justice [Centro Hospitalar de Setúbal and SUCH (C-574/12) and CASTA 
and Others (C-50/14)], a restriction on freedom of establishment under which 
access to certain activities is restricted to operators with a particular legal form, 
such as non-profit organisations, is possible only on certain exceptional grounds 
relating to the principles of solidarity and budgetary efficiency. In its view, the 
case-law of the Court of Justice has accepted the direct award of contracts only in 
the case of contracts awarded to voluntary associations, whereas the Autonomous 
Community legislation at issue applies this exception not only to voluntary 
associations but also to non-profit organisations, thus extending the scope of the 
restriction. It believes that the Autonomous Community legislation at issue 
nullifies the objective of budgetary efficiency, because Autonomous Community 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-676/20 
 
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Order SAN/1221/2017 establishes the same service tariffs for both non-profit 
organisations and for-profit organisations awarded contracts under public 
procurement legislation, and those tariffs apply to all forms of outsourced service 
provision, with no distinction being drawn between public-private agreements and 
contracted-out services. 
6 The Consejería de Sanidad (Department of Health) argues that, in accordance with 
Articles 14 and 106 TFEU, Protocol No 26 annexed to the Treaty and recital 114 
to Directive 2014/24, the Autonomous Communities, including the Community of 
Aragon, have legislated on this matter by virtue of their power to organise social 
services of general interest; they have opted to establish different ways of 
managing this type of services, and commercial organisations are eligible to 
manage these services under the contracting-out route. It is therefore incorrect to 
conclude that organisations other than non-profit organisations are excluded from 
managing this type of services. It contends that it is not Autonomous Community 
Law 11/2016 which has created a third way for managing services of general 
interest, but Directive 2014/24, and the Autonomous Community of Aragon has 
transposed that option into domestic law. The legislation on public-private 
agreements does not breach legislation on contracts because they are different 
routes, since a public-private agreement is not a contract. The Department of 
Health believes that there is no breach of the freedom of establishment or the 
freedom to provide services, because it considers that restricting the use of public-
private agreements in the health field to non-profit organisations – particularly in 
the case of the management of residential care for AIDS patients – is consistent 
with EU law. In its opinion, the EU legal principles of universality and solidarity 
and grounds of economic efficiency and appropriateness provide sufficient 
justification for the restriction, since it enables that service of general interest to be 
provided under stable economic conditions by organisations whose fundamental 
purpose is to serve the general interest, in accordance with EU case-law. 
Brief summary of the reasons for the request for a preliminary ruling 
Legal issues 
7 The referring court begins by noting that, in the light of decisions of the Court of 
Justice such as those in Ordine degli Ingegneri della Provincia di Lecce 
(C-159/11) and Piepenbrock (C-386/11), the concept of a contract for pecuniary 
interest also includes contracts for which the agreed remuneration is limited to 
reimbursement of the costs of providing the agreed service. Or, as noted by the 
Court of Justice in CASTA and Others (C-50/14) and Azienda sanitaria locale n. 5 
‘Spezzino’ and Others (C-113/13), a contract cannot fall outside the concept of 
public contract merely because the remuneration is limited to reimbursement of 
the expenditure incurred to provide the agreed service or because the contract is 
concluded with a non-profit-making body. The referring court notes that, in 
CASTA and Others (C-50/14), the Court of Justice ruled that the direct award of a 
service to a voluntary association, without advertising, is consistent with EU law, 
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provided that the decision satisfies the criterion of budgetary efficiency and that 
the award contributes to a social purpose and to achieving the objectives of the 
good of the community. 
8 However, the referring court notes that, while the general premiss of recital 114 
and Articles 76 and 77 of Directive 2014/24 is that the procurement rules must be 
followed, Member States are given considerable freedom to provide health and 
social services of general interest themselves or to organise the way in which such 
services are provided, with provision for reserved contracts (Article 77) and even 
direct award of contracts, as can be seen from the final part of recital 114, which 
provides examples of actions or organisational methods that do not rely on 
contracts. 
9 The referring court therefore concludes that Directive 2014/24 allows Member 
States freedom to provide this type of services themselves without applying 
procurement procedures, but in broad terms, that is to say, without discriminating 
between organisations depending on whether or not they operate in the market or 
between for-profit and non-profit organisations, and that the case-law of the Court 
of Justice has ruled that certain types of services can be awarded direct to 
voluntary associations, without advertising, only in exceptional cases, where the 
decision is justified on grounds of budgetary efficiency and contributes to the 
pursuit of the objectives of the good of the community and a social purpose. 
10 With regard to the disputed Autonomous Community Law 11/2016, the referring 
court notes that, under that law, public-private agreements provide one option for 
managing social and health services, alongside direct management using own 
resources and indirect management through the contracting-out of services 
(Article 2). Administrations may use any of these three routes to provide this type 
of services. Public-private agreements are defined as a non-contractual 
organisational tool (Article 3) which offers a subsidiary alternative to direct 
management using own resources for services that are required to be provided 
directly by administrations (4th additional provision). 
11 In the view of the referring court, it can be seen from the above provisions and 
Article 5(2) and (4) of Autonomous Community Law 11/2016, taken together, that 
the use of public-private agreements by the administration, as a subsidiary 
alternative to direct management using its own resources, is determined not so 
much by the specific or particular nature of the services to be provided (the Law 
indicates that any of the three routes may be used to ensure appropriate provision 
of this type of services) but rather by the objective which use of such an 
agreement seeks to achieve, which is justified by the body required to provide the 
service. It should be noted that Article 5(2) of the Law establishes three separate 
situations in which public-private agreements may be used, and therefore their use 
does not necessarily have to be justified on grounds of ‘the suitability of the 
aforesaid form of management, having regard to the specific content of the service 
to be provided’. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-676/20 
 
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12 The referring court interprets this as meaning that the objective of a public-private 
agreement is not so much to ensure suitable provision of a particular service of 
general interest ― unlike the EU procurement rules, the disputed legislation does 
not specify particular services ― since the contractual route could also offer 
suitable provision, but for the service to be provided by a non-profit organisation 
that has particular characteristics. Therefore, the use of a public-private agreement 
is not determined by the provision of the service but by the characteristics of the 
person designated to provide that service. In the light of Article 5(4) of 
Autonomous Community Law 11/2016, it seems that public-private agreements 
are intended as an instrument of social policy, and the agents of that policy are 
non-profit organisations in general and the non-profit organisations selected by the 
administration in particular. 
13 It follows from this that, by their very nature, all non-profit organisations are 
automatically deemed to be efficient in budgetary and financial terms. This 
conclusion cannot in any way be inferred from the EU legislation or from the 
exceptional grounds on which the Court of Justice ruled that the contractual route 
was not required and that certain services could be awarded direct, without 
advertising, which was accepted by the Court solely and exclusively in the case of 
services awarded to voluntary associations. It should also be added that indirect 
management (via the contracting-out route) and public-private agreements appear 
to be equally efficient in economic terms, since Autonomous Community Order 
SAN/1221/2017 applies equally to both cases. 
14 In short, the use of public-private agreements is restricted, solely and exclusively, 
to the provision of health or social services of general interest by non-profit 
organisations. Such agreements are deemed to be a subsidiary alternative to direct 
service provision by the administrations, using their own resources, not for service 
provision reasons (that is, to ensure complete satisfaction for the citizen), but on 
grounds of achieving certain social policy objectives pursued by each 
administration. Non-profit organisations become agents for delivering that policy 
and those objectives. 
Justification of the need for a request for a preliminary ruling 
15 The referring court notes that the action concerns the Autonomous Community 
Order on care for AIDS patients. The brief grounds cited in the order for the use 
of public-private agreements with non-profit organisations are: the lack of 
resources on the part of the administration providing the public service of general 
interest in question; the undesirability of increasing the administration’s own 
human and material resources; and the need to ensure continuity of care services 
for AIDS patients in Aragon; no further explanation is given. 
16 The lawfulness of the contested administrative measure is dependent on whether 
the applicable legislation complies with EU law, which justifies this request for a 
preliminary ruling. Clearly, if the legislative option in Autonomous Community 
Law 11/2016 which provides for public-private agreements as a subsidiary 
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alternative to the direct management of certain services of general interest does 
not comply with EU law, due to breach of the principle of freedom of 
establishment, among other principles, then the contested administrative measure 
could scarcely be compliant with EU law, and therefore there would be no need to 
rule on whether the measure in question complied with the applicable legislation.