Opinion of the Advocate General — ECLI:EU:C:2021:349
Date: 2021-04-29
Language of the case: Spanish
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Spain

summary, that the entities or persons concerned must be non-profit-
making, they must undertake to reinvest any profits made in the performance of 
their business, and their primary objective must be the professional and social 
integration of persons who are disabled or socially excluded. 
2. Directive 2014/24/EU (Article 20) is framed in terms which, because they 
are broad or general (‘sheltered workshops’, ‘social businesses’ and ‘economic 
operators’), enable its transposition into national law in the manner effected by the 
Fourth Additional Provision of Law 9/2017 on public sector contracts. 
3. Directive 2014/24/EU does not stipulate precisely and unconditionally the 
scope of the reservation governed by Article 20 thereof, so that, as the provision 
has been transposed into Spanish law [OR. 4] in terms compatible with that 
article, it is not possible to invoke the direct effect of that provision. 
FOURTH. … [domestic procedural issues] 
It was decided by procedural decision … ‘… [to hear] the parties, within the … 
time limit of 10 days, so that they may make the submissions they … consider 
relevant concerning a reference to the Court of Justice of the European Union 
(Article 267 TFEU) on whether the transposition of Article 20 of Directive 
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2014/24/EU into national law allows the scope ratione personae of the reservation 
of contracts laid down in that provision to be delimited in such a way that it 
restricts the application of that provision to certain of the persons referred to 
therein (sheltered workshops and economic operators), even if those who are 
excluded satisfy the condition that at least 30% of their employees must be 
disabled and the aim or objective of the social and professional integration of 
those persons.’ 
FIFTH. The applicant requested that a question framed in the terms set out in the 
procedural decision …, and in line with the grounds of its action, regarding the 
conditions and scope of the reservation of contracts governed by Article 20 of 
Directive 2014/24/EU, be referred to the Court of Justice of the European Union 
for a preliminary ruling. 
In the same procedural step, the defendant submitted it was not necessary to seek 
a preliminary ruling because the terms of Directive 2014/24/EU are not 
unconditional and that directive was transposed into national law in accordance 
with the limits and the aims of the directive itself. 
II. LAW 
FIRST. The judgment of 9 September 2015, X and van Dijk (… C-72/14 and 
C-197/14, ECLI:EU:C:2015:564) states as follows: 
‘53. Article 267 TFEU confers jurisdiction on the Court to give preliminary 
rulings concerning both the interpretation of the Treaties and acts of the 
institutions, bodies, offices or agencies of the Union and the validity of those acts. 
The second paragraph of that article provides that a national court or tribunal may 
refer such questions to the Court, if it considers that a decision on the question is 
necessary to enable it to give judgment, and the third paragraph of that article 
provides that the national court or tribunal is bound to make a reference if there is 
no judicial remedy under national law against its decisions (judgment in Melki and 
Abdeli, C-188/10 and C-189/10, EU:C:2010:363, paragraph 40). … 
55. The Court has held that a court or tribunal against whose decisions there is 
no judicial remedy under national law is required, where a question of EU law is 
raised before it, to comply with its obligation to bring the matter before the Court 
of Justice, unless it has established that the question raised is irrelevant or that the 
EU law provision in question has already been interpreted by the Court or that the 
correct application of EU law is so obvious as to leave no scope for any 
reasonable doubt. The Court has further held that the existence of such a 
possibility must be assessed in the light of the specific characteristics of EU law, 
the particular difficulties to which its interpretation gives rise and the risk of 
divergences in judicial decisions within the EU (judgment in Cilfit and Others, 
283/81, EU:C:1982:335, paragraph 21).’ 
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For its part, the Tribunal Supremo (Supreme Court, Spain) ruled on essential 
aspects of making a reference to the Court of Justice for a preliminary ruling in 
the recent judgment … of the Chamber for Contentious Administrative 
Proceedings of 17 December 2018 (Law reports: Supreme Court judgment 
4260/2018; case number 553/2018): 
‘… when an uncertainty arises concerning a possible conflict between a national 
provision and EU law, even if the court is not the court of last instance, it is 
required to set out the reasons why it finds no conflict between the national 
provision and the EU provision invoked and why it is not necessary to seek a 
preliminary ruling on the grounds that the doctrine of act clair or acte éclairé is 
applicable …’ 
In accordance with that case-law, this court will give an account of: 
(a) The issue in contention in the proceedings. 
(b) The interpretation and application of a provision of European Union law as a 
condition for the resolution of the issue in contention. 
(c) The uncertainties regarding the compatibility of the national law applicable 
to the case with that provision of European Union law. 
SECOND. The contested decision in these proceedings approved the instructions 
issued to the contracting authorities of the Diputación Foral de Guipúzcoa 
concerning reserved contracts, as governed by Article 20 of Directive 2014/24/EU 
of the European Parliament and of the Council of 26 February 2014, which was 
transposed into national law by Law 9/2017 of 8 November on public sector 
contracts, specifically by the Fourth Additional Provision of that Law: 
‘1. By decision of the Council of Ministers or of the competent body within the 
sphere of the autonomous communities and local authorities, minimum 
percentages shall be set for reservation of the right to participate in procurement 
procedures for the award of certain contracts or certain lots of those contracts to 
social initiative special employment centres and to work integration social 
enterprises, governed, respectively, by the consolidated text of the General Law 
on the rights and social inclusion of persons with disabilities, approved by Royal 
Legislative Decree 1/2013 of 29 November, and by Law 44/2007 laying down the 
rules governing work integration social enterprises (Ley 44/2007 para la 
regulación del régimen de las empresas de inserción) of 13 December 2007, which 
satisfy the eligibility criteria laid down in that legislation, or a minimum 
percentage shall be set for reservation of the performance of those contracts in the 
context of sheltered employment programmes, provided that the proportion of 
disabled or socially excluded staff of special employment centres, work 
integration social enterprises and programmes is that stipulated in the legislation 
in question and, in any event, at least 30%. 
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The decision of the Council of Ministers or of the competent body within the 
sphere of the autonomous communities and local authorities shall set out the 
minimum requirements for ensuring compliance with the provisions of the 
previous paragraph. 
… [transitional procedure, not relevant to this case] 
2. The contract notice shall make reference to this provision. 
… [financial guarantees, matter not relevant to the present case]’.  
The provision transcribed above applies to the reservation of contracts under 
Article 20 of Directive 2014/24/EU to social initiative special employment centres 
and to work integration social enterprises governed by the provisions cited, which 
has the effect of excluding the (private and not social initiative) special 
employment centres which the applicant Confederation represents at national level 
from the scope of that legislation. 
The issue, as explained in the second and third paragraphs under the heading 
‘Facts’ of this order, is whether the abovementioned provision of Spanish law, on 
which the contested decision of the Diputación Foral de Guipúzcoa is based, is 
compatible with Article 20 of Directive 2014/24/EU, and therefore the outcome of 
the proceedings depends on the interpretation of that provision of European Union 
law, since, if it is found, as the applicant submits, that special employment centres 
which do not come within the category of ‘social initiative’ referred to in the 
Fourth Additional Provision of Law 9/2017 on public sector contracts, satisfy the 
criteria and aims laid down by Article 20 of Directive 2014/24/EU for eligibility 
to tender for contracts reserved under that provision, their exclusion from the 
scope of that reservation under the provision of national law in question will not 
be compatible with Article 20 of Directive 2014/24/EU. 
Accordingly, it is necessary to determine whether the national legislation referred 
to lays down eligibility criteria or conditions for tendering for reserved contracts 
under Article 20 of Directive 2014/24/EU, particularly with regard to special 
employment centres, which are not compatible with the rules ― which cannot be 
laid down by the Member States ― in that article, which must, of necessity, be 
interpreted … [by the Court of Justice] of the European Union. 
The rules governing social initiative special employment centres introduced into 
Spanish law by Law 9/2017 on public sector contracts stipulate additional criteria, 
other than those laid down by Article 20 of Directive 2014/24/EU, for the 
purposes of eligibility to tender for reserved contracts in public procurement 
procedures, as a comparison of both provisions quite clearly shows: 
– Article 20 of Directive 2014/24/EU. Reserved contracts: 
‘1. Member States may reserve the right to participate in public procurement 
procedures to sheltered workshops and economic operators whose main aim is the 
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social and professional integration of disabled or disadvantaged persons or may 
provide for such contracts to be performed in the context of sheltered employment 
programmes, provided that at least 30% of the employees of those workshops, 
economic operators or programmes are disabled or disadvantaged workers. 
2. The call for competition shall make reference to this Article.’ 
– The Fourteenth Final Provision of Law 9/2017, … [defines] the concept of 
social initiative special employment centres to which the Fourth Additional 
Provision of that Law, transcribed above, restricts the reservation of public 
contracts as far as those centres are concerned: 
‘… Social initiative special employment centres are those which satisfy the 
criteria laid down in paragraphs 1 and 2 of [Article 43 of the consolidated text of 
the General Law on the rights and social inclusion of persons with disabilities, 
approved by Royal Legislative Decree 1/2013 of 29 November] … and are 
promoted and in which more than 50 per cent of the shares are held, directly or 
indirectly, by one or more public or private undertakings which are not-for-profit 
or whose social nature is referred to in their articles of association, whether these 
are associations, foundations, bodies governed by public law, social initiative 
cooperatives or other social economy entities, and also those owned by 
commercial companies referred to above, whether directly or indirectly through 
the concept of dominant company governed by Article 42 of the Commercial 
Code (Código de Comercio), and provided in all cases that it is stipulated in their 
articles of association or a shareholders’ resolution that their profits must be 
reinvested in full in the creation of employment opportunities for persons with 
disabilities and the continuous improvement of their competitiveness and their 
social economy activity, while having, in any event, the right to opt to reinvest 
profits in the special employment centre itself of in other social initiative special 
employment centres.’ 
THIRD. Finally, this court is uncertain whether the transposition of Article 20 of 
Directive 2014/24/EU into Spanish law, on whose interpretation the outcome of 
these proceedings depends, allows for determination of the scope ratione 
personae of the reservation of contracts governed by that EU provision in the 
terms of the rules governing social initiative special employment centres, with the 
result that it excludes from the scope of that reservation undertakings and 
economic operators, like those represented by the applicant, even though, in 
accordance with Article 20 of Directive 2014/24/EU, they satisfy the requirement 
that 30% of their employees must be persons with disabilities and the aim or 
objective of the social and professional integration of those persons. 
Therefore, in accordance with Article 267(2) of the Treaty on the Functioning of 
the European Union,  
THIS COURT DECIDES 
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To refer to the Court of Justice of the European Union the following question of 
interpretation: 
‘Must Article 20 of Directive 2014/24/EU on public procurement be interpreted as 
meaning that the scope ratione personae of the reservation laid down therein 
cannot be defined in terms which exclude from its scope undertakings or 
economic operators which satisfy the condition that at least 30% of their 
employees must be persons with disabilities and which meet the aim or objective 
of the social and professional integration of those persons, by setting additional 
criteria related to the constitution, character and aims of those bodies, to their 
activities and investments, or to other matters? 
… [Closing wording and signatures]