Opinion of the Advocate General — ECLI:EU:C:2020:400
Date: 2020-05-28
Language of the case: Slovenian
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Slovenia

Translation C-367/19 - 1 
Case C-367/19 
Request for a preliminary ruling 
Date lodged: 
8 May 2019 
Referring court: 
Državna revizijska komisija za revizijo postopkov oddaje javnih 
naročil (Slovenia) 
Date of the decision to refer: 
30 April 2019 
Contracting authority: 
Ministrstvo za notranje zadeve 
Applicant for review: 
Tax-Fin-Lex d. o. o. 
Successful tenderer: 
LEXPERA, d. o. o. 
Republic of Slovenia 
Državna revizijska komisija za revizijo postopkov oddaje javnih naročil 
(National Commission for the Review of Public Procurement Procedures, 
Slovenia) 
[…] 
REQUEST FOR A PRELIMINARY RULING 
Status of the referring body  
1 The Državna revizijska komisija za revizijo postopkov oddaje javnih naročil 1 
(National Commission for the Review of Public Procurement Procedures, 
Slovenia, ‘the Državna revizijska komisija’), as the body making the reference, is, 
within the meaning of the Zakon o pravnem varstvu v postopkih javnega 
 
1 [...] 
EN 
REQUEST FOR A PRELIMINARY RULING 30. 4. 2019 – CASE C-367/19 
 
2  
naročanja (Law on review in public procurement procedures [...], 2 ‘the 
ZPVPJN’), a special, independent and autonomous national body, which decides 
on the legality of the award of public contracts at all stages of the award procedure 
(Article 60(1) ZPVPJN). 
2 According to Article 2 of the ZPVPJN, the right of appeal against infringements 
committed in procedures for the award of public contracts is guaranteed in the 
Republic of Slovenia in the framework of the following:  
‒ a preliminary review procedure, which is carried out by the contracting 
authority, 
‒ a review procedure before the Državna revizijska komisja, and 
‒ legal proceedings, which at first instance are conducted before the 
Okrožno sodišče (Regional Court, Slovenia) designated as the sole 
competent authority by the law governing the judicial system. 
The appeal before the Okrožno sodišče is limited to the assessment of liability for 
damages and to hearing actions for a declaration of invalidity of contracts, 3 but 
does not extend to reviewing the legality of decisions of the Državna rezijska 
komisija, which are final. 4  
3. The Court of Justice of the European Union has already recognised the Državna 
revizijska komisija as a ‘national court or tribunal’ within the meaning of Article 
267 TFEU in the judgment of 8 June 2017, Medisanus, C-296/15, 
EU:C:2017:431. 
4.  The circumstances justifying the decision to grant the Državna revizijska komisija 
the status of ‘national court or tribunal’ within the meaning of Article 267 TFEU 
have not changed since the above-mentioned judgment of the Court of Justice. 
However, independently of the above, the Državna revizijska komisija, in Annex 
No 1 to the present request for a preliminary ruling, refers in more detail to the 
circumstances justifying the recognition of its status as ‘national court or tribunal’ 
within the meaning of Article 267 TFEU. 
Parties to the main proceedings  
5. The Državna revizijska komisija, in a formation composed of [...],  is called upon 
to rule on a dispute between the Ministrstvo za notranje zadeve (Ministry of the 
Interior) [...], Ljubljana, Slovenia (‘the contracting authority’), and the company 
TAX-FIN-LEX, d. o. o. [...] Ljubljana, Slovenia (‘the applicant’) concerning the 
 
2 […] 
3 […] 
4 […] 
MINISTRSTVO ZA NOTRANJE ZADEVE 
 
3 
conduct of the procedure for the award of the public contract entitled ‘Public 
contract for the award of access services to the legal information system’, in 
respect of Lot 1 entitled ‘Access to the legal information system’. Given that the 
conduct of the contracting authority, at issue between the two parties, also affects 
the situation of the company LEXPERA, d. o. o., [...] Ljubljana, Slovenia (‘the 
successful tenderer’), to which the contracting authority awarded the public 
contract at issue, and given that the successful tenderer has the same rights and 
obligations as a party, 5 that tenderer must also be accorded the status of party to 
the dispute in the main proceedings. 
Subject-matter of the case in the main proceedings and relevant facts  
6. On 7 June 2018, the contracting authority, which is a body of the Republic of 
Slovenia, adopted a decision to initiate the procedure for awarding the public 
contract for access to the legal information system for a period of 24 months.  
7. The estimated value of the public contract in question, as determined by the 
contracting authority, is EUR 39 959.01, which is below the value threshold set by 
Article 4 of Directive 2014/24. 6 
8. The contracting authority awards the public contract in question – which is 
divided into two lots – according to the procedure for awarding low-value 
contracts. This procedure is a nationally regulated procedure for the award of 
public contracts, 7 which contracting authorities may use for the purposes of 
awarding public service contracts below the value threshold laid down in Article 4 
of Directive 2014/24. 
9. Only the applicant and the successful tenderer submitted a bid for Lot 1 in good 
time. Following negotiations, the applicant offered to provide access to the legal 
information system (for a period of 24 months) at a price of EUR 0.00. 
10.  By virtue of the public procurement decision of 11 January 2019, the applicant 
was informed that its bid for Lot 1 had been refused (because it had offered a final 
price of EUR 0.00 which, in the opinion of the contracting authority, was contrary 
to the rules on the award of public procurement contracts) and that the contracting 
authority had awarded the contract for Lot 1 to the successful tenderer. 
11.  On 17 January 2019, the applicant lodged an appeal against that decision, in 
respect of which the successful tenderer did not submit any observations. In the 
course of the procedure preceding the review, the contracting authority rejected 
the request for review by decision of 5 February 2019. On 11 February 2019, the 
 
5 […] 
6 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. 64). 
7 […] 
REQUEST FOR A PRELIMINARY RULING 30. 4. 2019 – CASE C-367/19 
 
4  
contracting authority referred the case to the Državna rezijska komisija, which led 
to the initiation of the review procedure. 
12. The parties disagree on the merits of the contracting authority’s decision to reject 
the applicant’s bid. The sole reason cited by the contracting authority for the 
decision to reject the applicant’s bid is that the latter offered a final price of 
EUR 0.00. 
13.  It should be noted, as a legally relevant circumstance, that the contracting 
authority does not criticise the applicant for having submitted an abnormally low 
bid (although the contracting authority initially verified the abnormally low bid, it 
did not reject the applicant’s bid because the latter had not explained the price 
offered by giving details). Nor does the contracting authority criticise the 
applicant for the fact that the bid does not comply with the obligations applicable 
in the fields of environmental, social and labour law. Furthermore, the contracting 
authority does not argue that the applicant’s bid does not comply with the 
requirements, conditions and criteria set out in the contract notice and in the 
documentation relating to the award of the public contract, namely that there are 
grounds for excluding the applicant or that the applicant does not comply with the 
selection criteria established by the contracting authority. 
14.  The applicant claims that the submission of a bid with a total value of EUR 0.00 is 
not inadmissible. While the rules on the award of public contracts do apply to the 
conclusion of contracts for pecuniary interest, this does not mean that the 
contracting authority can reject the bid of a tenderer that offers services free of 
charge. The tenderer has the right to freely determine the proposed price and 
therefore also has the right, in the context of a procurement procedure, to offer 
services free of charge. Furthermore, if the applicant had been awarded the public 
contract and had allowed free access to the legal information system, it would 
have obtained a benefit in the sense of acquiring a new market or new users, 
which is impossible to express in monetary terms but which can be defined as 
consideration received for the performance of the public contract in question. 
15. The contracting authority contends that a bid with a total value of EUR 0.00 is 
incompatible with the concept of a public contract. A public contract is a contract 
for consideration between a contracting authority and an economic operator. The 
bid with a unit value of EUR 0.00 would affect the pecuniary nature of the (future) 
contract, since the gratuitous nature of the subject matter of the bid would make it 
a transaction free of charge and not for pecuniary interest. The free provision of 
services does not constitute a public services contract. Obtaining a new market 
does not constitute consideration for the performance of the public contract in 
question, since it represents an added value for (all) economic operators which is 
not possible to express a monetary terms and for which it is therefore not possible 
to issue an invoice to the contracting authority. 
MINISTRSTVO ZA NOTRANJE ZADEVE 
 
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The relevant provisions  
EU law  
16. Article 1 of Directive 2014/24 provides:  
‘1. This Directive establishes rules on the procedures for procurement by 
contracting authorities with respect to public contracts as well as design contests, 
whose value is estimated to be not less than the thresholds laid down in Article 4. 
2. Procurement within the meaning of this Directive is the acquisition by 
means of a public contract of works, supplies or services by one or more 
contracting authorities from economic operators chosen by those contracting 
authorities, whether or not the works, supplies or services are intended for a public 
purpose.’ 
17. Article 2(1) of Directive 2014/24 provides: 
‘For the purposes of this Directive, the following definitions apply: 
... 
(5) “public contracts” means contracts for pecuniary interest concluded in 
writing between one or more economic operators and one or more contracting 
authorities and having as their object the execution of works, the supply of 
products or the provision of services’. 
18. Article 4 of Directive 2014/24 is worded as follows: 
‘This Directive shall apply to procurements with a value net of value-added tax 
(VAT) estimated to be equal to or greater than the following thresholds: 
... 
(b) EUR 144 000 for public supply and service contracts awarded by central 
government authorities ... 
...’ 
Slovenian law  
12.  Article 2(1) of the Law on Public Procurement [...] (Zakon o javnem naročanju, 
‘the ZJN-3’), which applies in the main proceedings, provides as follows: 
‘The definitions used in this Law shall have the following meaning:  
1. ‘public contract’ means a contract for pecuniary interest concluded in 
writing between one or more economic operators and one or more contracting 
REQUEST FOR A PRELIMINARY RULING 30. 4. 2019 – CASE C-367/19 
 
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authorities and having as its object the execution of works, the supply of products 
or the provision of services; 
...’ 
Grounds for the request for a preliminary ruling  
Application of EU law  
19. The estimated value of this public contract is below the threshold set out in Article 
4 of Directive 2014/24. 
20. The Court has already held on several occasions that it is competent to rule on a 
request for a preliminary ruling concerning the provisions of an act of EU law in 
circumstances where, although the facts in the main proceedings do not fall 
directly within the scope of that act, those provisions are applicable under national 
law since that act referred to the content of those provisions in order to lay down 
rules applicable to a purely domestic situation (see, for example, judgments of 13 
March 2019, E, C-635/17, ECLI:EU:C:2019:192; of 17 May 2017, ERGO 
poisťovňa, C-48/16, ECLI:EU:C:2017:377, and of 28 October 2010, Volvo Car 
Germany, C-203/09, ECLI:EU:C:2010:647). 
21. It follows from the settled case-law of the Court that, where national legislation 
adopts the same solutions as those adopted in EU law in order, in particular, to 
avoid discrimination against foreign nationals or any distortion of competition, it 
is clearly in the European Union’s interest that, in order to forestall future 
differences of interpretation, provisions or concepts taken from EU law should be 
interpreted uniformly, irrespective of the circumstances in which they are to apply 
(see, for example, judgment of 3 December 2015, Quenon K., C-338/14, 
EU:C:2015:795, paragraph 17 and the case-law cited therein). 
22. This case also concerns such a situation. Although Directive 2014/24 does not 
directly govern the situation in the main proceedings, it should be noted that, 
when transposing the provisions of Directive 2014/24 into national law, the 
Slovenian legislature decided that the concept of ‘public contract’ would cover 
both contracts with a value above the threshold defined in that directive and those 
with a lower value. 
23. The ZJN-3, by which Directive 2014/24 has been transposed into Slovenian law, 
applies both to public contracts that meet the threshold defined in Article 4 of 
Directive 2014/24 and to those that do not. 
24.  The definition of the concept of ‘public contract’ in ZJN-3 is identical to that in 
Directive 2014/24. That definition is the same for public contracts with a value 
above the threshold defined in Article 4 of Directive 2014/24 and for those with a 
value below that threshold. Therefore, under Slovenian law, the provision of 
Article 2(1)(5) of Directive 2014/24, which defines the concept of ‘public 
MINISTRSTVO ZA NOTRANJE ZADEVE 
 
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contract’, also applies directly and unconditionally to situations in which that 
Directive is not applicable. 
25. Whereas, for public contracts which do not reach the threshold laid down in 
Article 4 of Directive 2014/24, the ZJN-3 allows a purely national award 
procedure (which Directive 2014/24 does not provide for, that is, a procedure for 
low-value public contracts), with regard to the concept of ‘public contract’, it does 
not distinguish between public contracts whose value is above the threshold 
defined in Article 4 of the Directive and those whose value is below that 
threshold. 
26. In order to ensure equal treatment, it is necessary to interpret the concept of 
‘public contract’ derived from EU law in a uniform manner in situations falling 
within the scope of Directive 2014/24 (procurement procedures with a value 
above the threshold) and in situations outside the scope of that Directive 
(procurement procedures with a value below the threshold). This means that, in a 
situation such as that that of the main proceedings, in which the value of the 
public contract is below the threshold defined in Article 4 of Directive 2014/24, it 
is also necessary to interpret the concept of ‘public contract’ taking into account 
the case law of the Court. 
Grounds for the request for a preliminary ruling  
27. The Državna rezijska komisija has doubts about the interpretation and application 
of Article 2(1)(5) of Directive 2014/24, which defines the concept of public 
contract.  
28. The pecuniary nature of the contract concluded between the contracting authority 
and the economic operator is one of the essential elements that defines a public 
contract. The contract is indisputably of pecuniary interest when the two parties 
are, respectively, creditors and debtors to each other. The operator provides goods 
or services to the contracting authority and receives consideration from the 
contracting authority for the goods or services provided. 
29. However, the Državna revizijska komisija asks whether there is a ‘contract for 
pecuniary interest’ within the meaning of Article 2(1)(5) of Directive 2014/24 
where the contracting authority is not required to provide any consideration but, if 
the contract is concluded, the economic operator obtains access to a new market or 
new users for the purpose of the public contract. The fact that the contracting 
authority will obtain the supply of services for a price of EUR 0.00 or that it is not 
required to provide consideration for such supply could lead to the conclusion 
that, where the price offered is EUR 0.00, there is no contract for pecuniary 
interest within the meaning of Article 2(1)(5) of Directive 2014/24. However, 
even if the contracting authority does not have to pay for the provision of services, 
it is possible that the award of a public contract already has in itself an (economic) 
value for the economic operator that cannot be expressed in terms of monetary 
value at the time of awarding the contract or concluding the contract. Thus, 
REQUEST FOR A PRELIMINARY RULING 30. 4. 2019 – CASE C-367/19 
 
8  
through the performance of the contract, the economic operator acquires a new 
market and, consequently, gains references, which may represent some economic 
benefit in the future. 
30. However, if it is not possible to share the view that access to the market or 
acquisition of a new market and references may constitute a ‘contract for 
pecuniary interest’ within the meaning of Article 2(1)(5) of Directive 2014/24, the 
Državna rematzijska komisija has doubts regarding the application of that 
provision of the Directive. In this respect, the Državna rezijska komisija asks 
whether the provision in question constitutes an autonomous legal basis for 
rejecting the bid. 
31. The Državna rezijska komisija asks whether the contracting authority may, after 
initiating the public procurement procedure, reject the tenderer’s bid if it becomes 
clear during the procedure that no consideration would be required in order to 
provide the service, since the tenderer offered a price of EUR 0.00 in order to be 
awarded the contract. 
32. On the one hand, in the event of acceptance of the bid priced at EUR 0.00 between 
the contracting authority and the tenderer, there would not be a contract for 
pecuniary interest, but rather a gratuitous contract, since, in such a case, the 
contracting authority would not be required to provide consideration for the 
service received. In view of its gratuitous nature, the contract concluded could not 
be considered as a contract for the performance of a public contract. This would 
mean that the contracting authority had initiated a public procurement procedure 
whose final result would be not the award of a public service contract or the 
conclusion of a contract for the performance of a public contract but rather, for 
example, a gift. 
33. On the other hand, however, Article 2(1)(5) of Directive 2014/24, which defines 
the concept of public contract, does not regulate the mode of action in the context 
of public procurement procedures, but lays down in which cases the directive 
applies. The definition of the concept of public contract may be relevant before or 
after the conclusion of the contract. Before the conclusion of the contract, the 
concept of public contract constitutes a guideline whereby, if the contracting 
authority provides for the supply of good or services on the basis of a contractual 
relationship for pecuniary interest, the provisions of Directive 2014/24 are to be 
taken into account. Conversely, if the contracting authority provides for the supply 
of goods or services on the basis of a gratuitous contract, it is not required to act in 
accordance with the provisions of Directive 2014/24. After the conclusion of the 
contract, on the other hand, the concept of public contract is relevant for assessing 
whether the contract in question has been concluded in accordance with the rules 
governing the award of public contracts. 
34. The initiation of the public procurement award procedure reflects the contracting 
authority’s assessment that in order to obtain the subject matter of the public 
contract it will be necessary for it to provide consideration. Whether or not this 
MINISTRSTVO ZA NOTRANJE ZADEVE 
 
9 
assessment of the contracting authority is correct can only be demonstrated by the 
bids submitted by tenderers, taking into account the situation of the relevant 
market. The subsequent conduct of the tenderers and the content of their bids 
cannot affect this (preliminary) assessment by the contracting authority. After 
initiating the procurement procedure and after receipt of the bids, the contracting 
authority is obliged to take those bids into consideration and to examine them and 
assess them solely in the light of the requirements defined in advance. In addition, 
the contracting authorities organise the procedures for awarding public contracts 
not with the aim of concluding a contract for pecuniary interest, but with the aim 
of obtaining (necessary) goods or services. Likewise, in the present case, if the 
contracting authority accepted the bid at a price of EUR 0.00, it would obtain the 
subject-matter of the procurement in accordance with its requirements. 
Decision and content of the request for a preliminary ruling  
35. The Državna rezijska komisija, considering that the doubts that have arisen 
concern the interpretation and application of EU law, submits to the Court of 
Justice, in accordance with the third paragraph of Article 267 TFEU, the following 
questions for a preliminary ruling, specifying that the answer to the second 
question is only required if the answer to the first is negative:  
1. Is there a ‘contract for pecuniary interest’ as part of a public contract 
within the meaning of Article 2(1)(5) of Directive 2014/24, where the 
contracting authority is not required to provide any consideration but, by 
performing the public contract, the economic operator obtains access to a 
new market and references?  
2. Is it possible or necessary to interpret Article 2(1)(5) of Directive 
2014/24 in such a way that it constitutes a basis for rejecting a bid with a 
price of EUR 0.00? 
[...]