Judgment;Summary — ECLI:EU:C:2023:918
Date: 2023-11-23
Language of the case: German
Court formation: Tenth Chamber
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary C-480/22 – 1 
Case C-480/22 
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: 
18 July 2022 
Referring court: 
Verwaltungsgerichtshof (Austria) 
Date of the decision to refer: 
23 June 2022 
Appellants on a point of law: 
EVN Business Service GmbH 
Elektra EOOD 
Penon EOOD 
  
Subject matter of the main proceedings 
Procurement law – Central purchasing body located ‘in another Member State’ – 
Attribution of the control exercised over the contracting entity – Review 
procedure – Procedural law – Competence 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
Questions referred for a preliminary ruling 
1. Must Article 57(3) of Directive 2014/25/EU of the European Parliament and 
of the Council of 26 February 2014 on procurement by entities operating in the 
water, energy, transport and postal services sectors and repealing Directive 
2004/17/EC be interpreted as meaning that the provision of centralised purchasing 
activities by a central purchasing body located in another Member State exists 
where the contracting entity – irrespective of the question as to the attribution of 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-480/22 
 
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the control exercised over that contracting entity – is located in a Member State 
other than that of the central purchasing body? 
2. If Question 1 is answered in the affirmative: 
Does the conflict-of-law rule of Article 57(3) of Directive 2014/25/EU, according 
to which the ‘provision of centralised purchasing activities’ by a central 
purchasing body located in another Member State is to be conducted in 
accordance with the national provisions of the Member State where the central 
purchasing body is located, also cover both the legislation applicable to review 
procedures and the competence of the review body for the purposes of Council 
Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and 
administrative provisions relating to the application of Community rules on the 
procurement procedures of entities operating in the water, energy, transport and 
telecommunications sectors? 
3. If Question 1 or Question 2 is answered in the negative: 
Must Directive 92/13/EEC, and in particular the fourth subparagraph of 
Article 1(1) thereof, be interpreted as meaning that the competence of a national 
review body to review decisions of contracting entities must cover all contracting 
entities located in the Member State of the review body, or must the competence 
be determined on the basis of whether the dominant influence over the contracting 
entity (for the purposes of Article 3(4)(c) and Article 4(2) of Directive 
2014/25/EU) is exercised by a federal, regional or local authority or by a body 
governed by public law which is to be attributed to the Member State of the 
review body? 
Provisions of Community law relied on 
Directive 2014/25/EU of the European Parliament and of the Council of 
26 February 2014 on procurement by entities operating in the water, energy, 
transport and postal services sectors and repealing Directive 2004/17/EC 
Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, 
regulations and administrative provisions relating to the application of 
Community rules on the procurement procedures of entities operating in the water, 
energy, transport and telecommunications sectors 
Provisions of national law relied on 
Bundes-Verfassungsgesetz (Federal Constitutional Law, Austria; ‘the B-VG’) 
Niederösterreichisches Vergabe-Nachprüfungsgesetz (Law of Lower Austria on 
the review of public procurement, Austria; ‘the NÖ VNG’) 
EVN BUSINESS SERVICE AND OTHERS 
 
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Bundesvergabegesetz 2018 (2018 Federal Law on public procurement, Austria; 
‘the BVergG 2018’) 
Succinct presentation of the facts and procedure in the main proceedings 
1 The main proceedings are based on a procurement procedure (framework 
agreement on the performance of electrical installation works and related 
construction and dismantling works) divided into 36 lots, the place of performance 
being located in Bulgaria. 
2 Elektrorazpredelenie YUG EAD (‘EY EAD’) is a public limited company under 
Bulgarian law, having its registered office in Bulgaria, which acts as the sectoral 
contracting entity in the abovementioned procurement procedure.  
3 EVN Business Service GmbH (‘EBS GmbH’) is a company under Austrian law, 
having its registered office in Austria. It acts as the central purchasing body of the 
contracting entity in that procurement procedure, and has the task of procuring 
services on behalf of and for the account of EY EAD (and therefore as its 
representative). 
4 In the invitation to tender, the Landesverwaltungsgericht Niederösterreich 
(Regional Administrative Court, Lower Austria) is named as the competent body 
for appeal proceedings/review procedures. Austrian law is stated as the law 
applicable to the ‘procurement procedure and all claims arising therefrom’, and 
Bulgarian law as the law applicable to ‘the performance of the contract’. 
5 EY EAD and EBS GmbH are indirectly wholly owned by EVN AG, which, in 
turn, is 51% owned by the Land of Lower Austria, an Austrian regional authority. 
6 Elektra EOOD and Penon EOOD are Bulgarian undertakings which submitted 
tenders for various lots in the award procedure. By decisions of 28 and 30 July 
2020, respectively, they were informed that they had not been awarded any lots. 
The undertakings each brought claims seeking the annulment of those decisions. 
However, those claims were dismissed on grounds of lack of competence by 
orders of the Regional Administrative Court, Lower Austria of 23 September 
2020. 
7 The Regional Administrative Court based the orders on the grounds that a 
decision on the question as to whether a Bulgarian undertaking may conclude a 
contract with a contracting entity located in Bulgaria, which is to be performed in 
Bulgaria and executed in accordance with Bulgarian law, would interfere 
massively with Bulgaria’s sovereignty, thereby giving rise to tension with the 
territoriality principle under international law. Moreover, it is not apparent from 
the Federal Law on public procurement which procedural law is to be applied to 
the review procedure, with the result that the Regional Administrative Court is not 
competent. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-480/22 
 
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8 EBS GmbH lodged an appeal on a point of law against both of those orders, and 
Elektra EOOD and Penon EOOD each lodged an appeal on a point of law against 
the order concerning them. A decision of the Supreme Administrative Court of the 
Republic of Bulgaria confirming the lack of competence of the Bulgarian 
procurement supervisory authority was submitted in the proceedings relating to 
those appeals on a point of law. 
9 The appeals on a point of law were based on the grounds that Article 57(3) of 
Directive 2014/25 must be interpreted as covering not only the procurement 
procedure itself, but also the rules governing the review procedure. If the central 
purchasing body is required to apply Austrian law from a substantive point of 
view, the appeal proceedings before the Austrian review bodies must also be 
conducted in accordance with Austrian procedural law; the place where the central 
purchasing body is located is decisive. 
10 P EOOD also submits that EY EAD is subject to control by the Austrian 
Rechnungshof (Court of Audit) and that there are no concerns based on 
international law as regards the fact that the lawfulness of the procurement 
activities of an undertaking controlled by an Austrian regional or local authority is 
subject to review by Austrian review bodies under Austrian procedural law even if 
that undertaking is located in another Member State.  
Succinct presentation of the reasoning in the request for a preliminary ruling 
11 In the present case, the question arises as to the applicable procedural rules as well 
as the competence of an Austrian review body in a situation where a sectoral 
contracting entity which is indirectly controlled by an Austrian regional or local 
authority and is established in Bulgaria carries out purchasing activities through a 
central purchasing body located in Austria. In that regard, it is first necessary to 
examine the scope (Question 1) and reach (Question 2) of the conflict-of-laws rule 
of Article 57(3) of Directive 2014/25. If Article 57(3) of Directive 2014/25 says 
nothing about the situation described above, the question arises as to the 
parameters according to which competence and the applicable procedural rules 
must then be determined (Question 3). 
12 EY EAD is a sectoral contracting entity located in Bulgaria, the majority of whose 
capital is indirectly held by an Austrian regional authority. That criterion is 
prescribed as the constituent element of one of the possible situations of control 
with regard both to contracting authorities and to public undertakings within the 
meaning of Directive 2014/25.  
Question 1 
13 The applicability of Article 57(3) of Directive 2014/25 requires that centralised 
purchasing activities – which are present in this case – are conducted by a central 
purchasing body located ‘in another Member State’. Since the contracting entity, 
EVN BUSINESS SERVICE AND OTHERS 
 
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EY EAD, is located in Bulgaria but is financially controlled by an Austrian 
regional authority, there are connecting factors allowing for attribution to two 
Member States in the present case. 
14 It cannot be inferred from the basic rule for the joint award of contracts under 
Article 57(1) of Directive 2014/25, which refers to contracting entities ‘from 
different Member States’, what is to be taken as the basis for attribution to a 
specific Member State. However, the fact that Article 57(2) refers to the location 
of the central purchasing body for the purposes of the attribution of that body 
militates in favour of taking the same approach for the attribution of the 
contracting entity. 
15 Against that, it could be countered that the definition of ‘contracting entity’ (or 
‘contracting authority’) is not based on its location, but on the control exercised by 
a regional or local authority. On that basis, it could be argued that a central 
purchasing body located ‘in another Member State’ exists where that Member 
State is not the one which exercises control over the contracting entity (by way of 
a local or regional authority). 
16 It is therefore not clear to the referring court what criteria are to be used to 
determine the existence of a central purchasing body located ‘in another Member 
State’.  
17 If the location of the contracting entity is not to be taken as the basis, Article 57(3) 
of Directive 2014/25 would not apply. If the location is to be taken as the basis, 
and Question 1 is answered in the affirmative, an answer to Question 2 would be 
required. 
Question 2 
18 According to Article 57(3) of Directive 2014/25, ‘the provision of centralised 
purchasing activities’ is to be conducted in accordance with the national 
provisions of the Member State where the central purchasing body is located. In 
the view of the referring court, it clearly follows that the substantive law of the 
State where the purchasing body is located applies. However, the question arises 
as to whether that also applies to the review procedure or to the competence of the 
review bodies. 
19 Recital 82 of Directive 2014/25 makes clear, inter alia, that the ‘applicable public 
procurement legislation, including the applicable legislation on remedies’ is to be 
designated by virtue of that directive. Against that background, an interpretation 
of Article 57(3) of Directive 2014/25 would lead to the conclusion that that 
provision also encompasses the provisions relevant to a review procedure. The 
fact that the substantive rules and the rules governing reviews are interconnected 
also militates in favour of applying in the review procedure the procedural law of 
the State whose substantive law is applicable. However, the answer to that 
question is not obvious to the referring court. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-480/22 
 
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20 Should Question 2 be answered in the affirmative, Austrian procedural law would 
apply in the review procedure in the present case. Should it be answered in the 
negative, however, the question still arises as to which procedural law should be 
applied in the present case. 
Question 3 
21 Under Directive 92/13, it must be ensured that decisions taken by contracting 
entities can be reviewed; in that regard, it refers, inter alia, to the scope of 
Directive 2014/25. The definition of ‘contracting entity’ in Directive 2014/25 does 
not contain an express reference to the location of the undertaking. The Regional 
Administrative Court considered that its competence to review the purchasing 
activities of a contracting entity located in another Member State is problematic 
due to considerations linked with international law. Against that, however, it 
might be countered that, in a case where the location of a contracting entity and 
the control exercised over it are attributable to different Member States, each of 
the conceivable solutions presupposes that a national review body is required to 
assess transactions with a link to another Member State (either by virtue of the 
location of the contracting entity to be reviewed or by virtue of the fact that the 
contracting entity is controlled by a regional or local authority of another Member 
State).