Judgment;Summary — ECLI:EU:C:2022:868
Date: 2022-11-10
Language of the case: Slovenian
Court formation: Eighth Chamber
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services;Transport;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Slovenia

Summary C-486/21 – 1 
Case C-486/21 
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:  
9 August 2021 
Referring court:  
Državna revizijska komisija za revizijo postopkov oddaje javnih 
naročil (Slovenia) 
Date of the decision to refer:  
2 August 2021 
Applicant:  
SHARENGO najem in zakup vozil d.o.o. 
Defendant:  
Mestna občina Ljubljana 
  
Subject matter of the main proceedings 
Application for review of a tendering procedure for the selection of a 
concessionaire; public-private partnership in the form of a services concession; 
classification of the contractual relationship as a concession, as a public contract 
or as a mixed contract; Directive 2014/23/EU; Directive 2014/24/EU; conditions 
of participation; proportionality; principles of equal treatment and non-
discrimination; Regulation (EC) No 2195/2002; Common Procurement 
Vocabulary; classification of the subject of the call for tenders as a service or a 
supply; total turnover of the concessionaire throughout the duration of the 
contract. 
Subject matter and legal basis of the request 
Interpretation of EU law; Article 267 TFEU 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-486/21 
 
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Questions referred for a preliminary ruling 
1. Is Regulation (EC) No 2195/2002 [of the European Parliament and of the 
Council of 5 November 2002 on the Common Procurement Vocabulary 
(CPV)], as amended by Commission Regulation (EC) No 213/2008 [of 
28 November 2007 amending Regulation (EC) No 2195/2002 of the 
European Parliament and of the Council on the Common Procurement 
Vocabulary (CPV) and Directives 2004/17/EC and 2004/18/EC of the 
European Parliament and of the Council on public procurement procedures, 
as regards the revision of the CPV], to be interpreted as meaning that the 
hire of passenger cars without a driver falls not within Group 601 of the 
Common Procurement Vocabulary (CPV), but instead within Group 
341 of the CPV, with the addition of code PA01-7 Hire, from the 
Supplementary Vocabulary, completing the description, which is 
unaffected by code PB04-7 Without driver from the Supplementary 
Vocabulary, the combination of the codes from Group 341 of the CPV 
with the code PA01-7 Hire from the Supplementary Vocabulary 
meaning that the hire of passenger cars without a driver should be 
considered a supply contract, not a service contract and, consequently, 
where the bulk of the investment from the economic operator in the 
execution of a project – one to create a public system for the hire and 
sharing of electric vehicles – consists in the supply of electric vehicles, 
and where that investment is even greater than the contracting 
authority’s investment in the project, the ‘services’ element referred to 
in Article 5(1)(b) of Directive 2014/23/EU [of the European Parliament and 
of the Council of 26 February 2014 on the award of concession contracts] is 
not fulfilled and, therefore, the contract for the execution of such a 
project is not a ‘services concession’ within the meaning of 
Article 5(1)(b) of Directive 2014/23/EU? 
2. Is the concept of ‘the provision and management of services’ in 
Article 5(1)(b) of Directive 2014/23/EU to be interpreted as meaning 
that: 
(a) the concept of ‘the provision of services’ in Article 5(1)(b) of 
Directive 2014/23/EU has the same meaning as the concept of ‘the 
provision of services’ in Article 2(1)(9) of 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], such that 
the concept of ‘the provision of services’ in Article 5(1)(b) of 
Directive 2014/23/EU means that, in the case of the creation of a 
public system for the hire and sharing of electric vehicles, the 
economic operator provides services ancillary to the hire and 
sharing of electric vehicles, and carries on activities which go 
beyond the hire and sharing of electric vehicles, 
and 
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(b) the concept of ‘the management of services’ in Article 5(1)(b) of 
Directive 2014/23/UE means that the economic operator exercises 
the ‘right to exploit the services’, as mentioned further on in 
Article 5(1)(b) of Directive 2014/23/EU, in order to generate 
revenue, and therefore the concept of ‘the management of services’ 
in Article 1(b) of Directive 2014/23/EU means that, in the case of 
the creation of a public system for the hire and sharing of electric 
vehicles, an economic operator, by reason of the provision of 
services falling within the scope of the hire and sharing of electric 
vehicles and activities going beyond the hire and sharing of 
electronic vehicles, has the right to charge users for the provision 
of the services and is not required to pay parking fees to the 
municipality or to bear the costs of regular maintenance of 
parking spaces, such that it is legitimate for it to generate revenue 
on that basis? 
3. Is the concept of the ‘total turnover of the concessionaire generated over 
the duration of the contract, net of VAT, as estimated by the contracting 
authority or the contracting entity, in consideration for the … services 
being the object of the concession», in the first subparagraph of 
Article 8(2) of Directive 2014/23/EU, to be interpreted as meaning that 
the ‘total turnover of the concessionaire’ also includes payments made 
to the concessionaire by users and that, consequently, such payments 
also constitute ‘consideration for the … services being the object of the 
concession’? 
4. Is Article 8(1) of Directive 2014/23/EU to be interpreted as meaning that 
Directive 2014/23/EU applies where the value of the investments or the 
value of the investments and costs borne by the economic operator in 
connection with a services concession, or borne by the economic 
operator and by the contracting authority in connection with a services 
concession (manifestly) exceeds EUR 5 350 000, excluding VAT? 
5. Is Article 38(1) of Directive 2014/23/EU to be interpreted as permitting 
a contracting authority to impose a condition of participation relating to 
professional activity, and to require economic operators to provide 
evidence of the fulfilment of that condition, including in accordance 
with Commission Implementing Regulation 2015/1986 [of 11 November 
2015 establishing standard forms for the publication of notices in the field of 
public procurement and repealing Implementing Regulation (EU) 
No 842/2011], and the corrigendum [to Commission Implementing 
Regulation (EU) 2015/1986 of 11 November 2015 establishing standard 
forms for the publication of notices in the field of public procurement and 
repealing Implementing Regulation (EU) No 842/2011], which sets out, in 
Annex XXI, the concession notice (standard form 24), which contains a 
Section III.1.1. Suitability to pursue the professional activity, including 
requirements relating to enrolment on professional or trade registers? 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-486/21 
 
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6. If question 5 is answered in the affirmative, is Article 38(1) of Directive 
2014/23/EU, in the light of the principles of equal treatment and non-
discrimination mentioned in Article 3(1) of Directive 2014/23/EU, to be 
interpreted as meaning that, in setting the condition of participation 
relating to professional activity, a contracting authority may use the 
national item NACE 77.110 for the description of the activity of Renting 
and leasing of cars and light motor vehicles, which has the same meaning 
as in Regulation 1893/2006 [of the European Parliament and of the Council 
of 20 December 2006 establishing the statistical classification of economic 
activities NACE Revision 2 and amending Council Regulation (EEC) 
No 3037/90 as well as certain EC Regulations on specific statistical 
domains] in Annex I, NACE REV 2, class 77.11 Renting and leasing of 
cars and light motor vehicles? 
7. If question 5 is answered in the affirmative, is Article 38(1) of Directive 
2014/23/EU, in particular in so far as it refers to the requirement of 
proportionality and in the light of the principles of equal treatment and 
non-discrimination mentioned in Article 3(1) of Directive 2014/23/EU, 
to be interpreted as meaning that a contracting authority may require 
that the condition of registration for the pursuit of the activity of renting 
and leasing of cars and light motor vehicles is fulfilled by each of the 
partners? 
8. Is Article 2(1)(8) of Directive 2014/24/EU to be interpreted as meaning 
that it is a ‘public supply contract’ when (in relation to the economic 
operator’s investment) an essential part of the future contractual 
relationship between the municipality and the economic operator relates 
to the hire and sharing of electronic vehicles intended for users of a 
public electronic vehicle hire and sharing system, where the 
municipality does not invest directly in the implementation of the 
project for the creation of a public system for the hire and sharing of 
electronic vehicles by paying money to the economic operator, but 
instead invests indirectly, through the waiving of parking fees for a 
period of 20 years and through the provision of regular maintenance of 
parking spaces, and where the value of that investment exceeds, in 
aggregate, the value indicated in Article 4(b) or (c) of Directive 
2014/24/EU, having regard to Commission Delegated Regulation 
2019/1828 [of 30 October 2019 amending Directive 2014/24/EU of the 
European Parliament and of the Council in respect of the thresholds for 
public supply, service and works contracts, and design contests], and where 
the investment from the municipality is, however, (substantially) less 
than both the economic operator’s investment as a whole in the project 
for the creation of a public system for the hire and sharing of electric 
vehicles, and the economic operator’s investment in the part of the 
project which relates to electronic vehicles, notwithstanding that users 
will pay the economic operator for the use of the electronic vehicles and 
that the economic operator’s success in generating revenue will depend 
SHARENGO 
 
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on user demand, which will be indicative of the financial success of the 
public system for the hire and sharing of electronic vehicles, for which 
reason the economic operator bears the operating risk in the 
implementation of the project, which is a characteristic of a ‘services 
concession’, within the meaning of Article 5(1)(b) of Directive 
2012/23/EU, rather than of a ‘public contract’ within the meaning of 
Article 2(1)(5) of Directive 2014/24/EU? 
9. Is the third subparagraph of Article 3(4) of Directive 2014/24/EU to be 
interpreted as constituting the legal basis for the application of the 
regime established by Directive 2014/24/EU for the purposes of the 
award of a future contract between the municipality and the economic 
operator for the project to create a public system for the hire and 
sharing of electric vehicles, inasmuch as that contract must be 
considered a mixed contract, containing elements of a public supply and 
service contract and of a services concession, given that the 
municipality’s investment in the implementation of the project exceeds 
the threshold set in Article 4(c) of Directive 2014/24/EU, having regard 
to Delegated Regulation 2019/1828 ? 
10. Are Article 58(1) and Article 58(2) of Directive 2014/24/EU, in the light 
of the principles of equal treatment and non-discrimination mentioned 
in Article 18(1) of Directive 2014/24/EU, to be interpreted as meaning 
that, that, in setting a condition of participation relating to professional 
activity, a contracting authority may use the national item NACE 77.110 
for the description of the activity of Renting and leasing of cars and light 
motor vehicles, which has the same meaning as in Regulation 1893/2006, 
in Annex I, NACE Rev. 2, class 77.11 Renting and leasing of cars and 
light motor vehicles?  
11. Are Article 58(1) of Directive 2014/24/EU, in particular in so far as it 
refers to the requirement of proportionality, and Article 58(2) of 
Directive 2014/24/EU, in the light of the principles of equal treatment 
and non-discrimination mentioned in Article 18(1) of Directive 
2014/24/EU, to be interpreted as meaning that a contracting authority 
may require the condition of registration for the pursuit of the activity 
of Renting and leasing of cars and light motor vehicles to be fulfilled by 
each of the partners? 
Provisions of European Union law relied on  
Directive 2014/23/EU, in particular, recital 63, Article 1(1) and (2)(a), 
Article 5(1)(b), Article 8(1), (2), (3) and (4), Article 20(4) and (5), Article 27(1), 
Article 31(1) and (2), Article 37(1) and (2), Article 38(1) and Annex V; 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-486/21 
 
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Directive 2014/24/EU, in particular, Article 1(1) and (2), Article 2(1)(5), (8) and 
(9), Article 3, Article 4(c), Article 5(1) and (12)(a), Article 23(1), Article 49, 
Article 51(1), first subparagraph, Article 58(1) and (2), Annex V and Annex XI; 
Commission Implementing Regulation (EU) 2015/1986, in particular, Article 7, 
Annex XXI, point III.1.1, and Annex II; 
Regulation (EC) No 2195/2002, in particular, Article 1(1) and (2) and Annex I; 
CPV (Common Procurement Vocabulary) 2008 – Explanatory notes; 
Regulation (EC) No 1893/2006, in particular, Article 1, Article 2, Article 4(1) and 
(2) and Annex I. 
Provisions of national law relied on 
Zakon o javno-zasebnem partnerstvu (ZJZP) (Law on public-private partnerships, 
‘the Law on PPPs’), in particular, Article 1, Article 2, Article 5(5), (6), (7) and 
(13), Article 26, Article 27(1) and (2) and Article 92; 
Zakon o nekaterih koncesijskih pogodbah (ZNKP) (Law on certain concession 
contracts, ‘the Law on CCCs’), in particular, Article 1, Article 2(1), (3) and (4), 
Article 9, Article 10, Article 17(5) and (6), Article 26(1), (2) and (3), Article 31 
and Article 32(1), fourth subparagraph, and (2); 
Zakon o javnem naročanju (ZJN-3) (Law on public procurement, ‘the Law on 
Procurement’), in particular, Article 1(1) and (2), first subparagraph, 
Article 2(1)(1), (4) and (5), Article 9(1)(b), Article 22(2)(a), first subparagraph, 
and (3), Article 24(1) and (11)(a), Article 25(1), (5) and (6), Article 38, 
Article 52(1)(3) and (3); 
Uredba o standardni klasifikaciji dejavnosti (Regulation on the standard 
classification of activities, in particular, Article 1, Article 2, Article 4, Article 5, 
Article 7 and Annex I.  
Succinct presentation of the facts and procedure in the main proceedings 
1 On 4 May 2020, the municipal council of the Mestna občina Ljubljana 
(Municipality of Ljubljana) adopted a concession instrument for the award of a 
concession for the creation and operation of a public system for the hire and 
sharing of electric vehicles within the Municipality of Ljubljana (‘the Concession 
Instrument’). 
2 On 9 September 2020, the mayor of Ljubljana adopted a ‘decision to initiate a 
tendering procedure for the selection of the concessionaire’ (‘the decision to 
initiate a tendering procedure’), which stated that the total value of the project was 
estimated at EUR 14 989 000, excluding VAT, and that a financial contribution 
SHARENGO 
 
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from a private partner of EUR 14 570 000, excluding VAT, was anticipated, along 
with a financial contribution of EUR 36 000, excluding VAT, from the 
municipality. 
3 By decision of 15 January 2021, the mayor of Ljubljana approved a 2020 
document defining the investment project, entitled ‘Creation and operation of a 
public system for the hiring and sharing of electric vehicles within the territory of 
the Municipality of Ljubljana’ (‘the DDIP’). 
4 Paragraph 2 of the decision approving the DDIP states the estimated value of the 
investment, at constant prices, to be EUR 14 606 000, excluding VAT. 
5 The DDIP analyses options A (no investment), B (investment by way of public 
procurement) and C (investment by way of a public-private partnership, in the 
form of a services concession). It explains options B and C in detail, in terms of 
content and financing, and concludes that option C ‘appears to be the most 
appropriate’. 
6 The DDIP sets out in a number of tables the breakdown of the estimated 
investment (EUR 14 606 000, excluding VAT) at constant prices excluding VAT, 
as at February 2020: 
I. Investment of the public partner (the municipality) – EUR 36 000: 
• investment and project documentation: EUR 30 000 
• implementation of the public-private partnership: EUR 6 000 
II. Investment of the private partner – EUR 14 570 000: 
• existing fleet of electric vehicles: EUR 5 000 000 
• existing technology: EUR 1 500 000 
• resources and development: EUR 1 400 000 
• purchase of new electric vehicles during the concession period: 
EUR 6 250 000 
• creation of parking spaces: EUR 180 000 
• installation of charging stations: EUR 240 000 
7 The contract notice, drawn up using standard form 2 set out in Annex II to 
Commission Implementing Regulation 2015/1986, was published on 4 February 
2021 on the public procurement portal and on 5 February 2021 in the Supplement 
to the Official Journal of the European Union. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-486/21 
 
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8 On 17, 18 and 19 February 2021, via the public procurement portal, the applicant 
raised a number of questions concerning the contract notice and indicated to the 
municipality that some of the conditions, criteria and requirements specified were 
in breach of the Law on PPPs and the Law on Procurement. 
9 On 19 February 2021, the applicant submitted a request for a review. 
10 By decision of 2 March 2021, the municipality rejected that request. 
11 The municipality replied to the questions concerning the contract notice on the 
public procurement portal. 
12 By some of its replies, the municipality supplemented, corrected or amended some 
of the conditions, criteria and requirements set out in the Guide. 
13 On 8 March 2021, the municipality submitted the request for a review and the 
related documentation to the Državna revizijska komisija (National Review 
Board) for its scrutiny. 
14 In a memorandum dated 8 March 2021, the applicant called into question the 
municipality’s decision of 2 March 2021, raised objections to the municipality’s 
arguments and requested the National Review Board to examine all of the 
complaints it had made in its request for a review. 
15 By letter of 29 March 2021, the National Review Board invited the municipality 
to respond specifically and in detail to the following questions:  
• if the municipality is of the view that the relationship to be formed under the 
future contract is a concession, what condition (delimitation criterion) is met 
for the application of the Law on PPPs but not the Law on CCCs? 
• what is the estimated value of the relationship (public procurement or 
concession) arising from the future contract, how did the municipality 
calculate it and what elements are included?  
• is the municipality to provide the future contractor, directly or indirectly, 
with any revenue (such as cash payments, contributions in kind to which a 
financial value is ascribed, cost exemptions) and, if so, what are they and 
what will their total value be over the duration of the relationship? 
• why does the municipality consider that it is necessary to: 
(a) regard the subject matter of the contract as a service rather than as a 
supply of goods; 
(b) use the code CPV 60100000 as the CPV code, rather than a group 341 
CPV code (such as CPV code 34110000-1 Passenger cars), with the 
additional code from the supplementary vocabulary PA01-7 Rental? 
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16 The municipality answered the questions put by the National Review Board by 
letter of 7 April 2021. 
17 By letter of 8 April 2021, the National Review Board informed the applicant of 
the municipality’s letter of 7 April 2021 and invited it to respond to the arguments 
set out in the letter. The applicant did not do so. 
The essential arguments of the parties in the main proceedings 
18 In its request for a review of 19 February 2021, the applicant alleged that the 
municipality had breached the Law on PPPs and the Law on Procurement in so far 
as concerned its specification of:  
‒ the condition relating to the experience of the economic operator 
(references); 
‒ the condition relating to registration for the purposes of the pursuit of 
the activity; 
‒ the requirements relating to the financial plan, the indicative timetable 
and the resources and means of financing in relation to the subject and 
duration of the concession; 
‒ sub-criterion A, relating to the characteristics of the vehicles (fitness 
for motorway driving); 
‒ sub-criterion C, relating to the service’s connectivity with public 
transport; 
‒ the possibility of supplementing and amending the criteria, 
and also took issue with it for favouring the promotor, consequently requesting the 
withdrawal of certain conditions, criteria and requirements and, in the alternative, 
the annulment of the entire tendering procedure. 
19 In so far as concerns the condition of registration for the pursuit of the activity, the 
applicant has stated that, given the subject matter, which includes the 
implementation of investments not directly relating to the hire and sharing of 
electric vehicles, the condition that all the partners must be registered for the 
activity, according to the national classification – the standard classification of 
activities NACE 77.110 Renting and leasing of cars and light motor vehicles, is 
disproportionate, discriminatory, restrictive of competition and impedes 
cooperation with foreign partners. 
20 The municipality rejected the request for a review on the ground that there were 
indications that the applicant had fabricated evidence of its entitlement to carry on 
the activity in question, and therefore a suspicion of abuse of the institution of 
access to justice, and that the allegations of infringement were premature, since at 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-486/21 
 
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the time when the request for a review was made, the municipality’s time limit for 
responding to questions had not yet expired and the municipality had not yet 
responded to them. The municipality has also stated that it was obliged to provide 
additional information to all the economic operators and that the applicant acted in 
such a manner as to raise a suspicion that it had covertly created circumstances 
which permitted it to obtain a competitive advantage. 
21 In its memorandum of 8 March 2021, the applicant also stated that the National 
Review Board was not bound by the legal basis which it had indicated in its 
request for a review (the Law on PPPs and the Law on Procurement), and should 
identify the legal basis independently. The applicant also stated in its 
memorandum of 8 March 2021 that the entire tendering procedure should be 
cancelled, for the following reasons: 
– the municipality had not issued the call for tenders on the basis of the Law on 
CCCs; 
– the Law on CCCs does not permit a competitive dialogue; 
– the municipality did not use a concession notice, 
– the municipality failed to publish the draft concession contract, in breach of 
Article 42 of the Law on CCCs; 
– contrary to Article 51(2) of the Law on CCCs, the municipality authorises 
coordination of the concession contract, the scope of the investment, the service 
delivery model or system, the timetable, the possibility of staggering the 
investment, the number and identification of public area places, the 
technological solutions and the content and scope of the project. 
22 In reply to the questions put by the National Review Board, the municipality 
stated, inter alia, the following: 
• the Law on CCCs does not apply because the threshold for its application is 
not reached; 
• the estimated value of the concession, applying the method laid down in the 
Law on CCCs, is EUR 3 108 103, excluding VAT, with the following 
provisos: 
‒ users will use the services to the extent that the prices are attractive, 
and so the private partner fully assumes the risk of generating a 
sufficient level of revenue in the market, without the benefit of revenue 
guaranteed by the municipality or by final users on the basis of the 
provision of a public service, given that the subject of the concession is 
not the provision of a public service; 
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‒ the municipality will not pay directly for the operation of the 
concession, but will waive parking fees for the parking spaces used for 
the service, which are estimated at EUR 3 430 328, excluding VAT; 
‒ as consideration for the operation of the concession, account should 
also be taken of the cost of regularly maintaining the parking spaces, 
which will, in principle, be borne by the municipality, which is 
estimated at EUR 84 375, excluding VAT; 
‒ as regards revenue, the municipality will receive annual rents for the 
parking spaces, estimated at EUR 345 000, excluding VAT, and for the 
charging stations, estimated at EUR 62 000, excluding VAT; 
• the subject of the concession is the supply of a service for the hire and 
sharing of electric vehicles, that service to encompass all the tasks necessary 
for the success of the project and the attainment of the objectives fixed in the 
Concession Instrument and in the concession contract, to be concluded, 
including the creation of a central system for the hiring and sharing of the 
electric vehicles which will enable the project’s implementation to be 
monitored and controlled, in particular: 
> the obligation to provide and to manage the fleet of vehicles, the 
obligation to supply vehicles in good working order, including, in 
particular, regular servicing and repairs, including in the event of an 
accident, registration, insurance and other incidental costs for the 
normal use of the vehicles; the concessionaire is to manage the fleet 
and ensure the availability of roadworthy vehicles to users and is to 
assume the obligation regularly to modernise the fleet of vehicles as 
required by the contract; 
> the obligation to ensure and manage the creation of a network of hire 
spots and charging stations for the electric vehicles, the obligation to 
maintain them regularly, the obligation to keep charging stations 
substantially functioning, in accordance with the terms and conditions 
to be defined in the contract; 
> the provision of an adequate user support system; 
• in view of the sharing of risks that is envisaged, it considers that the choice 
of the CPV code relating to the rental of goods could be misleading, because 
the electric vehicle sharing system goes beyond the simple hiring of an 
electric vehicle, in that in includes a comprehensive service for the operation 
of a sharing system which is broader in content and concept than a pure 
vehicle rental; 
• it is clear from point II.3 of the contract notice, headed Type of contract, that 
the object or the type of contract relates to a service and not a supply;  
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• the choice of the group 341 CPV code, with the additional code from the 
supplementary vocabulary PA01-7 Rental, could be misleading, as a 
potential tenderer might understand that the subject of the call for tenders is 
simply the ‘hiring’ of private cars, which is not at all true: the subject of the 
call for tenders is the creation of a comprehensive scheme, one which 
implements and manages the infrastructure and the entire electric vehicle 
sharing system. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
23 The dispute between the parties concerns, inter alia, the setting of one of the 
conditions of participation, albeit the municipality has referred to it as one of the 
grounds for exclusion. The competence of the National Review Board to hear the 
dispute between the parties depends, in the present case, on whether the future 
contractual relationship between the municipality and the economic operator can 
be considered a ‘services concession’ within the meaning of Article 5(1)(b) of 
Directive 2014/23/EU, if its value amounts to at least EUR 5 350 000, excluding 
VAT. If the answer is yes, the National Review Board will then have to resolve 
the question whether the parties’ imposition of the condition of participation is 
consistent with Article 38(1) of Directive 2014/23/EU, as different parts of 
Directive 2014/23/EU might lend themselves to conflicting views. If the future 
contractual relationship between the municipality and the economic operator 
cannot be considered a services concession within the meaning of Article 5(1)(b) 
of Directive 2014/23/EU, the National Review Board raises the question of 
whether it should be considered a ‘public contract’ within the meaning of 
Article 2(1)(5) of Directive 2014/24/EU. If the answer is yes, the National Review 
Board will then have to resolve the question of whether the imposition of the 
condition of participation is consistent with the rules in Article 58(1) and (2) of 
Directive 2014/24/EU. 
24 In determining whether a given contractual relationship is a concession or a public 
contract, European Union law alone applies and it is irrelevant how the 
relationship might be defined under the legal system of a particular Member State 
(see, for example, the judgments of 18 January 2007, Auroux and Others, 
C-220/05, EU:C:2007:31, paragraph 40, of 18 July 2007, Commission of the 
European Communities v Italy, C-382/05, C: 2007:445, paragraphs 30 and 31, and 
of 15 October 2009, Acoset, C-196/08, EU:C:2009:628, paragraph 38). It is 
therefore irrelevant that the future contractual relationship between the 
municipality and the economic operator is characterised as a services concession 
in Paragraph 6(1) of the Concession Instrument. If the contractual relationship is 
also a services concession in substance, as defined in Article 5(1)(b) of Directive 
2014/23/EU, the award of the contract will come under the regime laid down in 
Directive 2014/23/EU, if its value amounts to at least EUR 5 350 000, excluding 
VAT. If, on the other hand, the contractual relationship is, in substance, a public 
supply contract, as contemplated by Article 2(1)(8) of Directive 2014/24/EU, or a 
public service contract, as contemplated by Article 2(1)(9) of Directive 
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2014/24/EU, the award of the contract will come under the regime laid down in 
Directive 2014/24/EU, if its value amounts to at least EUR 139 000, excluding 
VAT, in accordance with Article 4(b) of Directive 2014/24/EU, read in the light 
of Delegated Regulation 2019/1828, and not only EUR 214 000, excluding VAT, 
in accordance with Article 4(c) of Directive 2014/24/EU, read in the light of 
Delegated Regulation 2019/1828. Indeed, it is apparent from Article 22(2)(a) of 
the Law on Procurement, read in the light of Delegated Regulation 2019/1828, 
that, in Slovenia, the municipalities, which are ‘sub-central contracting 
authorities’ within the meaning of Article 2(1)(3) of Directive 2014/24/EU, are 
subject to the same obligations under Article 4(b) of Directive 2014/24/EU as 
contracting authorities which are ‘central government authorities’, within the 
meaning of Article 2(1)(2) of Directive 2014/24/EU. 
25 In its decision of 9 September 2020 to initiate a tendering procedure, the 
municipality stated that the total value of the project was estimated at 
EUR 14 989 000, excluding VAT. However, the sum which it subsequently 
indicated to be the financial investment of the private partner and the municipality 
was EUR 14 606 000, excluding VAT. That was the sum the municipality 
mentioned in its decision of 15 January 2021 approving the DDIP and in the 2020 
DDIP. Both the decision to initiate a tendering procedure, of 9 September 2020, 
and the decision approving the DDIP, of 15 January 2021, and also the 2020 
DDIP, state that the municipality’s contribution amounts to EUR 36 000, 
excluding VAT. Notwithstanding, it is apparent from the DDIP that, over the 20-
year period of the contractual relationship, the municipality is to waive parking 
fees for the economic operator and also provide, throughout that period, regular 
maintenance of the parking spaces (e.g. winter services). Clearly, the municipality 
is not investing only EUR 36 000, excluding VAT, in the project’s 
implementation: the simple waiver of parking fees for the economic operator for 
20 years, estimated at EUR 3 430 328, excluding VAT, is higher than the value 
mentioned in Article 4(b) of Directive 2014/24/EU, read in the light of Delegated 
Regulation 2019/1828, which is EUR 139 000, excluding VAT, and that 
mentioned in Article 4(c) of Directive 2014/24/EU, read in the light of Delegated 
Regulation 2019/1828, which is EUR 214 000, excluding VAT. It follows that the 
threshold for the application of Directive 2014/24/EU is reached. The sum of 
EUR 3 430 328, excluding VAT, even added to the sum of EUR 84 375, 
excluding VAT, would not exceed the threshold in Article 8(1) of Directive 
2014/23/EU, read in the light of Delegated Regulation 2019/1827, which is 
EUR 5 350 000, excluding VAT. However, given that the private partner’s 
(economic operator’s) investment is estimated, in the decision of 9 September 
2020 to initiate a tendering procedure, in the decision of 15 January 2021 
approving the project and in the 2020 DDIP, at EUR 14 570 000, excluding VAT, 
then the private partner’s income and receipts over the 20-year period of the 
project should be at least EUR 14 977 000, excluding VAT, if they are to cover all 
the investments and the payment of annul parking rents and charging station rents. 
Even if the investment of EUR 5 000 000, excluding VAT, for the existing fleet of 
electric vehicles, is excluded from the calculation, the private partner’s (economic 
operator’s) investment would still be greater than EUR 5 350 000, excluding 
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14  
VAT. So too would the investment in the purchase of new electronic vehicles 
during the implementation of the project, estimated at EUR 6 250 000, excluding 
VAT. Given those considerations, the National Review Board raises the question 
whether, in the event that the contracting authority takes into account, in the 
calculation of the estimated value of a services concession, only the investments 
and the costs, it is sufficient that that value is manifestly exceeded in order to 
conclude that the threshold in Article 8(1) of Directive 2014/23/UE is reached, 
rendering that directive applicable. 
26 An essential element of a services concession is that the contracting authority 
entrusts the other contracting party with the provision and management of services 
other than the execution of works referred to in Article 5(1)(a) of Directive 
2014/23/EU, the performance of works being a works concession. Directive 
2014/23/EU does not govern the situation of a supply concession. However, under 
Directive 2014/24/EU, public contracts include, in addition to public service 
contracts and public works contracts, public supply contracts. 
27 An economic operator wishing to create a public system for the hire and sharing 
of electric vehicles will need to perform activities which go beyond the mere 
supply and hiring out of electric vehicles: (i) it will develop software to support 
the hiring and sharing of vehicles, (ii) it will create and manage a network of 
rental points and charging stations, maintain them regularly and ensure the 
availability of operational charging stations, (iii) it will provide a user support 
service. These examples show that the content of the project is diverse, and some 
of it involves services. 
28 It is clear from the DDIP that the estimated EUR 14 570 000, excluding VAT, of 
private partner (economic operator) investment relates mainly to electric vehicles 
(EUR 11 250 000, excluding VAT, of which EUR 5 000 000, excluding VAT, for 
the existing fleet of electric vehicles and EUR 6 250 000, excluding VAT, for the 
purchase of new electric vehicles during the performance of the contract). Even 
leaving aside the contribution of the fleet of existing electric vehicles, the sum of 
EUR 6 250 000, excluding VAT, for the purchase of new electric vehicles during 
the performance of the contract would constitute the bulk of the economic 
operator’s investment. Electric vehicles are vehicles in the sense of group 341 of 
the CPV. Group 341 of the CPV is a code for the subject matter of a contract 
which is a supply of goods. Although the implementation of a project to create a 
public system for the hire and sharing of electric vehicles demands a series of 
activities on the operator’s part, from the information provided it seems clear that 
the most important part of the project, in terms of value, is the part relating to 
electric vehicles. It could be inferred from that that electric vehicles are the main 
subject of the future contractual relationship, within the meaning of Article 20(5) 
of Directive 2014/23/EU and Article 3(6) of Directive 2014/24/EU. 
29 Users of the electric vehicle hire and sharing system will themselves drive the 
vehicle. The economic operator does not provide them with a driver. In the 
contract notice, the contracting authority used the CPV code 60100000 [-9], which 
SHARENGO 
 
15 
is a CPV code relating to services, namely Road transport services. However, it is 
clear from the group 601 CPV codes that the essential element of the services 
which they denote is that the transport is effected by a driver other than the user. 
Even if it is the user of the vehicle that hires the vehicle, the vehicle is driven by a 
driver other than the user. That is demonstrated by code 60170000-0 Hire of 
passenger transport vehicles with driver and code 60170000-7 Hire of passenger 
cars with driver. Following that interpretation, it might be considered that code 
CPV 60100000 [-9] [Road transport services] in the contract notice that was 
published is not relevant. That is corroborated by the explanatory note to group 
601 of the CPV, according to which group 601 does not include the ‘Hire of 
passenger transport vehicles without driver, to be found in group 341 adding the 
CPV Supplementary Vocabulary code PA01-7 Hire’. Although the explanatory 
notes are not a formal legal source, they could be understood to mean that the hire 
of vehicles without a driver should be regarded as a supply of goods, since CPV 
group 341 is a code for the subject matter of a contract which consists in goods. 
On the other hand, from the headings of Section P [‘Renting services’] and of 
Group A within Section P [‘renting or hire services’] of the Supplementary 
Vocabulary, it seems that the renting or the renting or hiring are related to 
services, and that the code PB04-7 Without driver is included in Group B, which 
also includes services with a driver, which might suggest that the code 
CPV 60171000-7 Hire of passenger cars with driver could be used even with the 
addition of code PB04-7 Without driver. That opposing interpretation could 
suggest that the code CPV 60100000 [-9] is appropriate. The codes in group 601 
are, according to the CPV, codes for services. 
30 It is clear from Article 2(1)(8) of Directive 2014/24/EU that public supply 
contracts can also include contracts having as their object the rental of goods. 
31 A services concession within the meaning of Article 5(1)(b) of Directive 
2014/23/EU may pertain to ‘the provision and the management [of services]’. 
That definition of a services concession differs, in that regard, from the definition 
given in Article 1(4) of Directive 2004/18/EC, which does not contain the words 
‘the management [of services]’. What is meant by ‘provision and … management 
[of services]’ is not defined in Directive 2014/23/EU. In its judgment of 
28 February 2019, SJ, C-388/17, EU:C:2019:161, at paragraph 48, the Court of 
Justice of the European Union held that ‘the meaning and scope of terms for 
which EU law provides no definition must be determined according to their 
meaning in everyday language whilst considering the context in which they occur 
and the purposes of the rules of which they form part’. However, in that judgment, 
the Court of Justice was interpreting the concept of ‘operation’ in the light of the 
concepts of ‘activities’ (not services) and of ‘network’ (paragraphs 45 and 53 of 
the judgment) and stated (in paragraph 53 of the judgment) that ‘the activity of the 
“operation of networks” refers to the exercise of the right of use of the railway 
network for the provision of transport services’. That does not suggest that the 
Court of Justice has interpreted this same concept in the context of a situation such 
as a public call for tenders. The National Review Board raises a number of 
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16  
questions, in the event that the creation of a public system for the hire and sharing 
of electric vehicles is to be considered a services procurement: 
– do the words ‘the provision of services’ in Article 5(1)(b) of Directive 
2014/23/EU mean the same as ‘the provision of services’ in Article 2(1)(9) of 
Directive 2014/24/EU, such that the words ‘provision of services’ in 
Article 5(1)(b) of Directive 2014/23/EU mean that, in the case of the creation 
of a public system for the hire and sharing of electric vehicles, the economic 
operator provides services relating to the hire and sharing of electric vehicles 
and also performs activities which go beyond the hire and sharing of electric 
vehicles? 
– do the words ‘management of services’ in Article 5(1)(b) of Directive 
2014/23/EU mean that the economic operator exercises the ‘right to exploit the 
services’, as is mentioned further on in the provision, and, as a result, generates 
revenue, such that the words ‘management of services’ in Article 5(1)(b) of 
Directive 2014/23/EU mean that, in the case of the creation of a public system 
for the hire and sharing of electric vehicles, as a result of the provision of 
services relating to the hire and sharing of electric vehicles and the 
performance of activities going beyond the hire and sharing of electric vehicles, 
the economic operator obtains the right to charge users for the service, is not 
required to pay the municipality parking fees or bear the costs of regular 
maintenance of the parking spaces, and, on that basis, is entitled to generate 
revenue therefrom?. 
32 Article 5(1)(b) of Directive 2014/23/EU sets out two alternatives for what 
constitutes consideration for the execution of a services concession. It is either the 
right to exploit the services which are the subject of the contract or that right 
together with payment. It is clear from those alternatives that the contracting 
authority does not necessarily have to make any payment to the economic operator 
for the performance of a services concession. The concept of consideration cannot 
therefore be interpreted in the sense that the contracting authority is required to 
make a payment of some kind (see, by analogy, the factual situation which 
resulted in the judgment of 10 September 2009, Eurawasser, C-206/08, 
EU:C:2009:540, paragraphs 52 and 53). The first subparagraph of Article 8(2) of 
Directive 2014/23/EU also uses the concept of consideration, and the same 
substantive solution is to be found in Article 26(1) of the Law on CCCs, which the 
municipality interpreted in its letter of 7 April 2021 as meaning that 
‘consideration’ is solely the (financial) contribution made by the municipality (the 
contracting authority) to the services concession. The National Review Board is 
not convinced by the municipality’s interpretation, as it would exclude from the 
scope of the Law on CCCs, and therefore of Directive 2014/23/EU, all services 
concessions where the contracting authority makes no contribution, or only a 
contribution below the threshold in Article 8(1) of Directive 2014/23/EU, and all 
services concessions where the contracting authority incorrectly assesses the 
estimated value, failing to take account of the necessary components mentioned in 
Article 8(3) of Directive 2014/23/EU, to which the first sentence of Article 8(4) of 
SHARENGO 
 
17 
the directive refers. It is also true that neither the first subparagraph of Article 8(2) 
of the directive, nor Article 8(3) of the directive expressly states that the estimated 
value is to be calculated taking into account any payments made by users of the 
service which is the object of a services concession. The National Review Board 
therefore questions whether the words ‘the total turnover of the concessionaire 
generated over the duration of the contract, net of VAT, as estimated by the 
contracting authority or the contracting entity, in consideration for the … services 
being the object of the concession’ in the first subparagraph of Article 8(2) of 
Directive 2014/23/EU are to be interpreted as meaning that ‘total turnover’ also 
includes payments made by users to the concessionaire and that, consequently, 
payments made by users to the concessionaire constitute ‘consideration for the … 
services being the object of the concession’. 
33 If the subject matter of the contract is a supply of goods, and not services, the 
National Review Board questions whether the future contractual relationship 
between the municipality and the economic operator should be considered 
essentially a public supply contract, within the meaning of Article 2(1)(8) of 
Directive 2014/24/EU. That view is corroborated by the fact that, in the 
implementation of the public system for the hire and sharing of electric vehicles, 
the municipality is to make a contribution in the form of a waiver of parking fees 
for a period of 20 years, one which, moreover, exceeds the threshold in 
Article 4(c) of Directive 2014/24/UE, read in the light of Delegated Regulation 
2019/1828. It could be inferred that the future contractual relationship is 
remunerated. However, on the one hand, it seems clear that the municipality’s 
investment in the system, even taking into account the regular maintenance of the 
parking spaces, is (significantly) less than the economic operator’s investment. It 
must also be borne in mind that the essential remuneration method under the 
future contract between the municipality and the economic operator is payment by 
users for use of the electric vehicles, and that user demand will determine whether 
an economic operator will manage to generate sufficient revenue for the project to 
be a financial success. It is clear from the foregoing that the economic operator 
bears the operating risk of the creation of a public system for the hire and sharing 
of electric vehicles, and that is a characteristic of a services concession within the 
meaning of Article 5(1)(b) of Directive 2014/23/EU, and not of a public contract 
within the meaning of Article 2(1)(5) of Directive 2014/24/EU, either a public 
supply contract within the meaning of Article 2(1)(8) of Directive 2014/24/EU or 
a public service contract within the meaning of Article 2(1)(9) of Directive 
2014/24/EU. The National Review Board also questions, in this connection, 
whether the future contractual relationship should be regarded as a mixed public 
contract, such that the rules under the third subparagraph of Article 3(4) of 
Directive 2014/24/EU would apply to its award. That is corroborated by the fact 
that there are intrinsic elements of both a public contract, within the meaning of 
Article 2(1)(5) of Directive 2014/24/EU, and of a services concession within the 
meaning of Article 5(1)(b) of Directive 2014/23/EU. On the other hand, the 
subject matter, as such, is not really a service, so that the rules on the award of 
services concessions might not be relevant, although, weighing against that is the 
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18  
fact that users will pay for the use of the electric vehicles, which would be a 
characteristic of a services concession, rather than a public contract.  
34 Article 58(1)(a) of Directive 2014/24/EU expressly mentions ‘professional 
activity’, and the first subparagraph of Article 58(2) of the directive clearly 
concerns the entitlement of contracting authorities to require economic operators 
to be registered in one of the business registers kept in their Member State of 
establishment, as described in Annex XI to Directive 2014/24/UE. One such 
register in Slovenia is the ‘sodni register’ (judicial register), listed, alongside the 
‘obrtni register’ (trade register), in Annex XI of Directive 2014/24/EU. 
35 By contrast with Article 58(1)(a) of Directive 2014/24/EU, Article 38(1) of 
Directive 2014/23/EU does not expressly mention ‘professional activity’. It 
mentions only professional and technical ability [like Article 58(1)(c) of Directive 
2014/24/EU] and financial and economic standing [like Article 58(1)(b) of 
Directive 2014/24/EU]. The omission of the words ‘professional activity’ from 
Article 38(1) of Directive 2014/23/EU may be explained in two ways. It could 
mean that Article 38(1) does not provide a basis for the imposition, by a 
contracting authority, of a condition relating to professional activity. 
Alternatively, professional activity is not expressly mentioned, but the contracting 
authority may still impose a condition relating to professional activity because 
Article 38(1) of Directive 2014/23/EU is more general in the second sentence, as 
it does not refer to any specific condition of participation, while recital 63 refers 
‘exclusively’ to those conditions of participation where reliance may be placed on 
the capacities of others, and not ‘professional activity, within the meaning of 
Directive 2014/24/EU [see, on this subject, Article 63 of Directive 2014/24/EU]. 
Possible confirmation that a contracting authority may, under Article 38(1) of 
Directive 2014/23/EU, stipulate a condition of participation relating to a 
‘professional activity’ is to be found in Annex V, point 7(c) to Directive 
2014/23/UE, which mentions no specific restrictions, and in Implementing 
Regulation 2015/1986, Annex XXI to which sets out a concession notice (standard 
form 24), which includes a Section III.1.1 Suitability to pursue the professional 
activity, including requirements relating to enrolment on professional or trade 
registers, which enables the contracting authority to publish a list and brief 
descriptions of the conditions and of the documentation and information required. 
The opposite view would be that Directive 2014/23/EU, in Annex V, point 7(c), 
which mentions no specific restrictions, cannot be interpreted broadly, and the fact 
that it is possible to stipulate in the Annex XXI concession notice (standard form 
24) Section III.1.1 Suitability to pursue the professional activity, including 
requirements relating to enrolment on professional or trade registers, is merely a 
discrepancy between Implementing Regulation 2015/1986 and Article 38(1) of 
Directive 2014/23/EU. 
36 In the event that the possibility of imposing a condition of participation relating to 
a ‘professional activity’ is open also under Directive 2014/23/EU, and not just 
under Directive 2014/24/EU, the National Review Board questions whether it is 
consistent with Article 38(1) of Directive 2014/23/UE – having particular regard 
SHARENGO 
 
19 
to proportionality and the principles of equal treatment and non-discrimination 
mentioned in Article 3(1) of that directive – or with Article 58(1) and (2) of 
Directive 2014/24/UE – having particular regard to proportionality and the 
principles of equal treatment and non-discrimination mentioned in Article 18(1) of 
that directive – for the municipality to require that the condition of registration for 
the activity under NACE code 77.110 Renting and leasing of cars and light motor 
vehicles [identical to the code in Regulation 1893/2006, in Annex I, NACE 
REV 2, class 77.11 Renting and leasing of cars and light motor vehicles] be 
satisfied by each of the partners. It is clear from the condition of participation 
relating to ‘professional activity’ that the municipality did not set it in such a way 
that it would have to be satisfied by each of the economic operators participating 
in the tendering procedure. The municipality does not require the condition to be 
satisfied by operators in a subordinate relationship (such as sub-contractors), only 
those which are in a relationship of parity with other economic (members of a 
grouping of economic operators, partners). It is clear from answer 8 that the 
municipality’s primary aim was for partners to assume joint and several liability in 
the implementation of the subject matter of the contract, which is crucial to the 
success of the project, especially if one or other of them were to cease to exist 
during implementation: the municipality’s stipulation of the condition ensures that 
the project continues. On the other hand, the condition has a dissuasive effect on 
economic operators engaged in different activities and not registered for the 
activities listed under NACE code 77.110 Renting and leasing of cars and light 
motor vehicles [identical to the code in Regulation 1893/2006, in Annex I, NACE 
REV 2, class 77.11 Renting and leasing of cars and light motor vehicles], but 
which wish to form an association to carry out the project, the condition of 
participation relating to ‘professional activity’ not permitting reliance on the 
abilities of others. However, the condition of participation at issue in the main 
proceedings does not prevent such economic operators (on which it might have a 
dissuasive effect) from associating with other economic operators which do satisfy 
the condition, as sub-contractors or in a sub-contractual relationship. 
37 In setting the condition at issue, the municipality stipulated NACE code 77.110, 
which is a national (Slovene) code that is consistent with the option provided for 
in Article 4(2) of Regulation No 1893/2006. In its ‘Guide’, the municipality did 
not state that it would ‘take account of a classification which is consistent with the 
subject matter, as described’, as it did in answer 8. Although that answer, 
independently of the rules relating to services concessions or public contracts, 
became, under national law, part of the Guide, and therefore binding on the 
municipality, the applicant was not informed about it prior to submitting its 
request for revision, on 19 February 2021. On the other hand, however, the 
condition at issue does not necessarily imply that the economic operator must 
satisfy it in the form laid down in Slovenian law, or by having the required 
activity recorded in its articles of association in accordance with Slovenian law 
(which distinguishes the present case from that which resulted in the judgment of 
20 May 2006, Riigi Tugiteenuste Keskus, C-6/20, EU:C:2021:402). Instead, it may 
be inferred that the economic operator must be capable of performing an activity 
which is designated in Slovenian law under NACE 77.110. The National Review 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-486/21 
 
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Board questions whether a reference such as that is sufficient to comply with EU 
law, in particular in light of the principles of equal treatment and non-
discrimination. On the one hand, that requirement is satisfied, in that the 
municipality imposes the condition on all economic operators, both national and 
from other Member States, without distinction, specifically explaining the 
meaning of the code in the Guide, which in Slovenia is broken down into sub-
classes, and the description of which does not differ from that laid down in 
Regulation No 1893/2006, Annex I, NACE Rev. 2. On the other hand, however, it 
could be thought that the reference to NACE code 77.110, rather than simply to 
the wording that describes that code, could be confusing for entities established 
under laws other than Slovenian law, even though its content is no different from 
that under class 77.10 of Regulation No 1893/2006, Annex I, NACE Rev. 2. 
38 Since the resolution of the case calls for the interpretation of EU law, about the 
correct application of which there is some doubt, and given that the Court of 
Justice of the European Union has not yet interpreted the various points of EU law 
that are relevant to the resolution of the case in the main proceedings, the National 
Review Board refers to the Court of Justice of the European Union, pursuant to 
Article 267(3) TFEU, the questions for a preliminary ruling set out above. The 
answers to questions 2, 3, 4, 5, 6 and 7 depend on the Court of Justice’s finding, in 
answer to question 1, that Directive 2014/23/EU is applicable or that the subject 
matter of the contract is to be regarded as a provision of services. The answers to 
questions 8, 10 and 11 depend on the Court of Justice’s finding, in answer to 
question 1, that Directive 2014/23/EU is not applicable or that the subject matter 
of the contract is to be regarded as a supply of goods. The answer to question 9 is 
needed whether the Court of Justice decides that Directive 2014/23/EU is 
applicable or not and whether it concludes that the subject matter of the contract is 
a provision of services or a supply of goods.