Opinion of the Advocate General — ECLI:EU:C:2021:79
Date: 2021-01-28
Language of the case: Estonian
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Estonia

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: 
7 January 2020 
Referring court: 
Tallinna Ringkonnakohus (Estonia) 
Date of the decision to refer: 
19 December 2019 
Appellant: 
Sotsiaalministeerium 
Respondent: 
Innove SA 
  
Subject matter of the main proceedings 
Appeal brought by the Sotsiaalministeerium (Ministry of Social Affairs, Estonia) 
against the judgment of the Tallinna Halduskohus (Administrative Court, Tallinn, 
Estonia) of 22 May 2019 dismissing the action brought by the Ministry of Social 
Affairs seeking the annulment of the financial correction decision of SA Innove 
(‘Innove’), by which the applications for payment submitted by the Ministry of 
Social Affairs under a food aid project were refused owing to an alleged 
infringement of public procurement rules 
Subject matter and legal basis of the request 
Request for an interpretation of Articles 2 and 46 of Directive 2004/18 pursuant to 
the third paragraph of Article 267 TFEU 
EN 
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Questions referred 
1. Are Articles 2 and 46 of Directive 2004/18/EC of the European Parliament 
and of the Council of 31 March 2004 on the coordination of procedures for the 
award of public works contracts, public supply contracts and public service 
contracts to be interpreted as precluding national legislation — such as 
Paragraph 41(3) of the Riigihangete seadus (Estonian Law on public procurement; 
‘the RHS’) — pursuant to which, if specific requirements for the activities to be 
carried out under a public contract are laid down by law, the contracting authority 
must specify in the tender notice which registrations or activity licences are 
required to qualify the tenderer, must require the tenderer to submit evidence of 
the activity licence or registration for the purpose of verifying compliance with the 
special statutory requirements in the tender notice, and must refuse the tenderer as 
unqualified if the latter does not possess the relevant activity licence or 
registration? 
2. Read together, are Articles 2 and 46 of Directive 2004/18/EC of the 
European Parliament and of the Council of 31 March 2004 on the coordination of 
procedures for the award of public works contracts, public supply contracts and 
public service contracts to be interpreted as precluding the contracting authority, 
in the case of a food aid procurement contract that exceeds the international 
threshold, from setting a selection criterion for the tenderers according to which 
all tenderers, irrespective of where they were previously established, must already 
hold an activity licence or be registered in the country of the food aid operations at 
the time of submission of the tenders, even if the tenderer has not previously been 
established in that Member State? 
3. If the preceding questions are answered in the affirmative: 
3.1. Are Articles 2 and 46 of Directive 2004/18/EC of the European Parliament 
and of the Council of 31 March 2004 on the coordination of procedures for the 
award of public works contracts, public supply contracts and public service 
contracts to be regarded as provisions that are so unambiguous that the principle 
of the protection of legitimate expectations cannot be invoked against them? 
3.2. Are Articles 2 and 46 of Directive 2004/18/EC of the European Parliament 
and of the Council of 31 March 2004 on the coordination of procedures for the 
award of public works contracts, public supply contracts and public service 
contracts to be interpreted as meaning that a situation in which the contracting 
authority in a public tender for food aid requires, pursuant to the national law on 
foodstuffs, that the tenderers already hold an activity licence at the time of 
submission of the tender may be regarded as constituting a manifest infringement 
of the rules in force, as negligence or as an irregularity precluding reliance on the 
principle of the protection of legitimate expectations? 
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Provisions of EU law cited 
Directive 2004/18/EC of the European Parliament and of the Council of 31 March 
2004 on the coordination of procedures for the award of public works contracts, 
public supply contracts and public service contracts (OJ 2004 L 134, p. 114), 
Articles 2 and 46 
Regulation (EC) No 852/2004 of the European Parliament and of the Council of 
29 April 2004 on the hygiene of foodstuffs (OJ 2004 L 139, p. 1), Article 6(3)(a), 
(b) and (c) 
Regulation (EC) No 853/2004 of the European Parliament and of the Council of 
29 April 2004 laying down specific hygiene rules for food of animal origin (OJ 
2004 L 139, p. 55) 
Commission Decision C(2013)9527 final of 19 December 2013 on the setting out 
and approval of the guidelines for determining financial corrections to be made by 
the Commission to expenditure financed by the Union under shared management 
for non-compliance with the rules on public procurement 
National legislation cited 
Riigihangete seadus (Law on public procurement; ‘the RHS’) in the version in 
force until 31 August 2017 (consolidated text RT I, 25.10.2016, 20), Paragraphs 3, 
15(2), 39(1) and 41(3) 
Toiduseadus (Law on foodstuffs; ‘the ToiduS’) (RT I 1999, 30, 415 with 
subsequent amendments), Paragraphs 7, 8 and 10 
Perioodi 2014-2020 struktuuritoetuse seadus (Law on structural aid for the period 
2014-2020; ‘the STS’), Paragraphs 3 and 4 
Brief summary of the facts and procedure 
1 In 2015 and 2017, the Ministry of Social Affairs launched open invitations for 
tenders No 157505 and No 189564 ‘Food aid for the most disadvantaged’, which 
were above the international threshold (estimated value of EUR 4 million each). 
The tender notice for public contract No 157505 stipulated that the tenderer had to 
have the approval required by the Veterinaar- ja Toiduamet (Veterinary and Food 
Administration, Estonia; ‘the VTA’) for the performance of the contract and had 
to provide confirmation thereof and the approval number. The tender documents 
for public contract No 157505 were amended during the tendering procedure. 
Following this amendment, the tenderer was no longer obliged to submit 
confirmation of the VTA’s approval together with the approval number, but rather 
confirmation of compliance with the registration and licence obligation was 
sufficient. The same requirement was imposed for public contract No 189564. For 
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both public contracts, framework agreements were entered into with three 
successful tenderers. 
2 Innove’s financial correction decision of 30 October 2018 refused to accept 
payment applications which the Ministry of Social Affairs had submitted under 
the ‘Conditions for purchasing and distributing food aid to the most 
disadvantaged’ in support of the ‘Supply of food and transport to the place of 
storage’ project for EUR 463 291.55, because the Ministry of Social Affairs had 
failed to fulfil its obligation under the Perioodi 2014-2020 struktuuritoetuse 
seadus (Law on structural aid for the period 2014-2020, ‘STS’) to comply with the 
Riigihangete seadus (Law on public procurement, ‘the RHS’), which was in force 
until 31 August 2017. 
3 Innove took the view that both public contracts had set selection criteria which 
unduly restricted the circle of tenderers, in particular foreign tenderers. The 
unreasonable restriction resided, in its view, in the fact that the tenderers were 
required to have authorisation from the Estonian authority or to comply with the 
registration and licence obligation in Estonia. Even if the tenderer could have 
satisfied the condition imposed by relying on the resources of another person or 
by submitting a joint tender with a person who satisfied the conditions, that did 
not mean that the condition imposed became lawful, that is to say, that it did not 
unduly restrict the circle of tenderers. Tenderers who were not able to rely on the 
resources of another person or to submit a joint tender may have withdrawn from 
the tender because they were unable to comply with the deadline set for the 
submission of tenders. The Ministry of Social Affairs had infringed Paragraphs 3 
and 39(1) of the RHS. The decision was based on an examination by the 
Rahandusministeerium (Ministry of Finance, Estonia), in the context of which the 
public tenders at issue were examined. The final examination report indicated that 
the selection criteria set in the tender notice for public contracts No 157505 and 
No 189564 were unduly restrictive as regards foreign tenderers. 
4 Innove dismissed the objection of the Ministry of Social Affairs by objection 
decision of 25 January 2019 and took the view that the requirement imposing a 
registration and activity licence obligation, as stipulated in the tender notices, 
discriminated against tenderers on the basis of their origin and constituted a 
disproportionate restriction which allowed for unequal treatment of tenderers. 
5 The Ministry of Social Affairs brought an action before the Tallinna Halduskohus 
(Administrative Court, Tallinn) seeking the annulment of the financial correction 
decision issued by Innove on 30 October 2018. The applicant submitted that the 
tenders had been carried out in the proper manner and that it had no discretion in 
the decision as to the stage of the procedure at which the activity licence 
requirement should be imposed. For public contracts No 157505 and No 189564, 
the specific requirements for the activities to be carried out laid down by law for 
public procurement were the requirements imposing the registration and licence 
obligation that were provided for in Paragraphs 7 and 8 of the Toiduseadus (Law 
on foodstuffs; ‘the ToiduS’) and in Article 6(3) of Regulation (EC) No 852/2004 
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of the European Parliament and of the Council. The contested decision wrongly 
took the view that, since a public contract for foodstuffs (supplies) was involved, 
the contracting authority could not require an activity licence pursuant to 
Article 46 of Directive 2004/18. In the case of the physical handling of foodstuffs 
in Estonia, the contractor or the warehouse used by him under contracts or 
subcontracts must hold a VTA activity licence, and foodstuff-handling licences 
were not mutually recognised by the Member States. It was not possible for the 
contracting authority to qualify a tenderer on the basis of an activity licence from 
the country in which he was established. In view of the deadline for submitting 
tenders for the international tender (at least 40 days) and the licensing procedure 
deadline provided for in the ToiduS (30 days), the tenderer also had sufficient 
time for the licensing procedure. The defendant takes the view that damage had 
not been demonstrated. Furthermore, the public contract No 157505 had 
previously been audited twice by Ministry of Finance examiners and that 
examination had found that the conditions (including those relating to the activity 
licence) were consistent with the RHS. A retroactive change in interpretation was 
not consistent with the principle of sound administration. 
6 Innove requested that the action be dismissed. It confirmed that, although it 
appeared that, on the basis of a literal interpretation of Paragraph 41(3) of the 
RHS, the contracting authority could require the tenderer to submit the activity 
licence or registration or other appropriate certificate required under Estonian law 
to demonstrate compliance with the specific requirements, that requirement must 
be interpreted in the light of the relevant legal acts of the European Union (in 
particular, Directive 2004/18) and in conjunction with the case-law. In addition, 
the condition according to which the contracting authority required tenderers to 
comply with the specific requirements of Estonian law at the time of submission 
of the tender was not consistent with the principle of equal treatment laid down in 
Paragraph 3(3) of the RHS. Innove also took the view that, according to the case-
law of the Court of Justice, the principle of equal treatment of tenderers precluded 
the introduction of conditions for participation in a tendering procedure which 
required knowledge of the practice of the country in which the contracting 
authority was established (judgments of 14 December 2016, Connexxion Taxi 
Services, C-171/15, EU:C:2016:948, paragraph 42, and of 2 June 2016, Pizzo, 
C-27/15, EU:C:2016:404, paragraphs 45, 46 and 51). 
7 Innove took the view that, in the context of the tendering procedures, there should 
have been an assessment as to whether the tenderers who had previously provided 
a service in another Member State and the tenderers who had previously handled 
foodstuffs in Estonia were in the same situation as regards the imposition of the 
condition at issue and thus fulfilled the requirements of Estonian law. Innove 
emphasised that the principle of the protection of legitimate expectations had not 
been infringed. The beneficiary’s legitimate expectation that the support would be 
maintained must be balanced against the right of third parties to take part in a 
competition procedure and in a procurement procedure without unlawful 
restrictive conditions, and against the public interest, including the European 
interest in ensuring the smooth functioning of the internal market through 
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competitive procurement procedures and transparent use of EU resources. In the 
present case, the rights of third parties and the interests of the Community as a 
whole must be regarded as overriding public interests which outweighed any 
legitimate expectation on the part of the recipient of the support that the contested 
decision would not be adopted. 
8 The Ministry of Finance requested that the action be dismissed. It argued that the 
applicant did not have standing to bring proceedings and that the Administrative 
Court did not have jurisdiction to rule on that action, since national law provided 
for a different procedure for resolving such a dispute. The Ministry of Finance 
takes the view that the selection criteria in the tender notice were unduly 
restrictive. It argued that foreign suppliers not established in Estonia had to 
comply with the requirements of the country in which they operated and were 
subject to the supervision of the competent authority of the country in which they 
were established. Estonia was not able to assess the activity licences of foreign 
tenderers for the handling of foodstuffs, as it was not possible for Estonia to 
control the activities of the foreign company. The requirement imposing a 
registration and licence obligation is a requirement of EU law which applies 
throughout the Union. In order for the restriction provided for to be proportionate 
in relation to foreign tenderers and at the same time to provide the contracting 
authority with the assurance that it was not dealing with an illegal operator, the 
contracting authority should have allowed, for the purposes of qualification, the 
submission of an equivalent licence or certificate issued by the country of 
establishment of the foreign tenderer or another competent authority and should 
have been permitted to require a foreign tenderer to comply with the 
requirements — arising under Estonian law and necessary for the performance of 
the contract — only during performance of the public contract. The Ministry of 
Finance took the view that the principle of the protection of legitimate 
expectations did not extend to the executive. The judgments of the Court of 
Justice have, it was argued, also concluded that a recipient of support could not 
rely on a legitimate expectation if he had failed to fulfil his obligation in a 
significant manner. 
9 The Tallinn Administrative Court dismissed the action by judgment of 22 May 
2019. According to the tender notice, the tenderer required VTA approval to 
perform the contract, for which he had to provide confirmation and an approval 
number. The court concluded that this requirement resulted in unequal treatment 
of foreign tenderers, since a foreign tenderer who had not previously operated in 
Estonia could not have complied with the required registration and licence 
obligation at the time when the tender was submitted. Estonian tenderers who had 
previously gained experience of carrying out an activity in Estonia were in a better 
position when compared with other economic operators having similar experience 
in other EU countries. 
10 The Administrative Court referred to the document issued by the European 
Commission ‘Guidance for practitioners on avoiding the most common errors in 
projects funded by the European Structural and Investment Funds’, which, under 
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the heading ‘Common mistakes leading to financial corrections at the invitation to 
submit a tender stage’, cites as an example of a discriminatory requirement the 
obligation to already have the qualification/professional certificate recognised by 
a body in the country of the contracting authority at the time of submission of 
offers, which is discriminatory as it would be difficult for foreign tenderers to 
comply with this at the time of submission of offers. 
11 The licence and registration obligation imposed in the tender notice was not a 
specific requirement within the meaning of Directive 20[0]4/18. Article 46 of 
Directive 2004/18 referred to (specific) selection criteria for tenderers and not to 
requirements stipulated in relation to activity licences. A specific requirement 
within the meaning of Directive 20[0]4/18 could be that the handling of foodstuffs 
was subject, for example, to enrolment in the relevant register of food business 
operators or to a specific professional certificate which was a prerequisite for 
applying for an activity licence. The meaning of Article 46 of the Directive was 
better conveyed by the English version of the directive, which used the expression 
‘particular authorisation’. This wording referred specifically to the specific 
requirements imposed on tenderers. Directive 2004/18 did not refer to the (usual) 
authorised activities such as the handling of foodstuffs. Moreover, the latter was 
subject to harmonised requirements within the European Union, with the result 
that there could not be a ‘specific requirement’ in that regard. 
12 Paragraph 41(3) of the RHS must be interpreted in accordance with EU law. The 
court takes the view that the contracting authority should not have accepted a 
corresponding licence from the country of origin of the tenderer from another 
Member State, but should have made it possible to obtain such a licence in 
Estonia. The defendant’s references to the judgments of the Court of Justice of 
27 October 2005, Contse and Others (C-234/03, EU:C:2005:644), of 
26 September 2000, Commission v France (C-225/98, EU:C:2000:494) and of 
7 July 2016, Ambisig (C-46/15, EU:C:2016:530) were not relevant, since the 
restrictions in the present case arose from a national legal act (the ToiduS) 
referred to in the tender documents. 
13 The Tallinn Administrative Court also took the view that the principle of the 
protection of legitimate expectations was a principle of EU law on which the 
applicant could rely. Previous examinations could not provide the legal certainty 
that no irregularities would subsequently be established. The examinations 
conducted by the Ministry of Finance were not legally binding. Following the 
Court of Justice’s case-law, the principle of the protection of legitimate 
expectations could not be relied upon against an unambiguous provision of EU 
law; nor could the conduct of a national authority responsible for applying EU 
law, which acted in breach of that law, give rise to a legitimate expectation on the 
part of an economic operator of beneficial treatment contrary to EU law (judgment 
of 5 March 2019, Eesti Pagar, C-349/17, EU:C:2019:172, paragraph 104 and the 
case-law cited). The financial correction measure was not punitive in nature. The 
state did not have a subjective right to structural support. The prohibition of 
retroactive effect was therefore not applicable. 
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Main arguments of the parties in the appeal proceedings 
14 The Ministry of Social Affairs lodged an appeal with the Tallinna 
Ringkonnakohus (District Court, Tallinn, Estonia), requesting that the judgment of 
the Tallinna Halduskohus (Administrative Court, Tallinn) of 22 May 2019 be set 
aside and that a new judgment upholding the action be issued. 
15 The Ministry of Social Affairs takes the view that the Administrative Court erred 
in finding that, instead of a selection criterion, requirements should have been 
provided for during the performance stage of the public contract. Pursuant to 
Paragraph 39(1) and Paragraph 41(3) of the RHS, the contracting authority, when 
acquiring a service for which an activity licence was required, must set that 
requirement of an activity licence as a selection criterion. The existence of such an 
obligation on the part of the contracting authority had also been confirmed by 
administrative practice (see judgment of the Tallinna Halduskohus 
[Administrative Court, Tallinn] of 21 February 2013 in Case No 3-12-2349). 
16 There was, it was argued, no conflict between Article 46 of Directive 2004/18/EC 
and Paragraph 41(3) of the RHS. The directive did not specify at what point in 
time the tenderer was required to hold an activity licence. The Administrative 
Court wrongly held that, in the case of statutory activity licences, Paragraph 41(3) 
of the RHS conferred on the contracting authority the right to interpret that 
requirement in such a way that it was always permissible for the tenderer to meet 
the requirement by producing an activity licence from the country in which he was 
established. Regulation of the food sector consisted of special legal provisions on 
public contracts, the specifics of which had not yet, however, been clarified by the 
Administrative Court. 
17 The Ministry of Social Affairs also takes the view that references to the judgments 
of the Court of Justice in the Contse and Others (C-234/03), Commission v France 
(C-225/98) and Ambisig (C-46/15) cases were not relevant. The requirements at 
issue in those cases (existence of an office in the country in which the service was 
provided, requirement of membership of the association of designers in the 
Member State of the contracting authority, and requirement of certification of the 
purchaser’s signature) differed significantly from that at issue in the present case. 
The purpose of the requirement of an activity licence was to ensure that health 
protection requirements were complied with and that safe food was distributed to 
the beneficiaries of the aid. The Eesti Pagar judgment (C-349/17) cited by the 
Administrative Court was not relevant either, since it concerned the recovery of 
State aid for which EU law was directly applicable. Similarly, it was unlikely that 
a potential tenderer would refrain from submitting a tender due to the activity 
licence requirement. Foreign tenderers could have made use of the resources of 
another person and submitted a joint bid if they were unwilling or unable to meet 
the activity licence requirement. 
18 Finally, the Ministry of Social Affairs submits that the defendant’s conduct 
infringed the principles of the protection of legitimate expectations and sound 
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administration. Although the principle of the protection of legitimate expectations 
did not apply in the event of a manifest infringement of the rules in force, 
negligence or irregularity (see judgment of the Court of Justice of 13 March 2008, 
Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening and Others, 
C-383/06 to C-385/06, EU:C:2008:165, paragraphs 52 and 56), there was no such 
infringement, negligence or irregularity in the present case. 
19 Innove requests that the appeal be dismissed, maintains its previous position and 
agrees with the grounds of the judgment of the Administrative Court. 
20 The Ministry of Finance requests that the appeal be dismissed and also reiterates 
its previous position. 
Brief summary of the basis for the request 
21 The main issue in the dispute is whether, in the context of food aid procurement, it 
is permissible to stipulate, as a condition of tender for a public contract above the 
international threshold, the requirement that the tenderer must have approval 
issued by the Estonian authorities under the Law on foodstuffs or must have 
satisfied the registration and licence requirement in Estonia at the time of 
submission of the tender, and whether, if such a requirement unduly restricts 
foreign tenderers, a financial correction decision may be taken due to a change in 
the interpretation of the law and the directive in a situation where the contract has 
previously been examined by the competent authority at national level. 
22 The second paragraph of Article 46 of Directive 2004/18 provides for the 
possibility of requiring tenderers to provide proof of their suitability to pursue a 
professional activity by means of an authorisation issued by the competent 
authority of the Member State of establishment. In the present case, however, the 
contracting authority (the applicant) required of tenderers, pursuant to 
Paragraph 41(3) of the RHS, an activity licence or the fulfilment of a registration 
obligation provided for in the Law on foodstuffs. The performance of the public 
contract is subject to compliance with this licence or registration obligation, and 
this is not in dispute between the parties. In order to ensure food safety, the 
requirement for such a licence is permissible pursuant to Regulation (EC) 
No 852/2004 on the hygiene of foodstuffs. However, the conditions for the licence 
(approval) by the competent authority are not fully harmonised (see Article 6(3) of 
the Directive) and, in order to operate in another Member State, an economic 
operator must obtain the required approval from the country where he operates, 
that is to say, he cannot rely on approval in his country of origin. 
23 If the tenderer is qualified solely on the basis of an undertaking to apply for an 
activity licence or registration required under the Law on foodstuffs, the 
possibility of performing the public contract may be called into question if the 
tenderer fails to comply with that obligation or fails to meet the licence or 
registration requirements. In this case, the objectives of the public contract will 
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not be achieved and the contracting authority will have to carry out a new 
procurement procedure. 
24 The Administrative Court correctly explained that, since tenderers were expected 
to have previous experience, an assessment of the effect of the condition on 
tenderers just starting out in the food sector was irrelevant, with the result that it 
could also not be claimed that foreign tenderers were in the same situation as 
Estonian tenderers just starting out in the food sector. Estonian tenderers who had 
previously gained experience of carrying out an activity in Estonia were in a better 
position compared with other economic operators with similar experience in other 
countries of the European Union. 
25 It is therefore important to assess whether ensuring food safety and the attainment 
of the objectives of the public contract justify the imposition of a restriction on 
tenderers which de facto places foreign tenderers in a more difficult situation in 
which, before submitting a tender, they must either apply for the required licence 
or registration or submit a joint tender with an already approved or registered 
company, that is to say, a company operating in Estonia. The District Court takes 
the view that it is disproportionate to require tenderers to do this in the case of an 
international tender that exceeds the threshold. 
26 Article 46 of Directive 2004/18 cannot be regarded as sufficiently clear. This issue 
has not yet been addressed in the Court of Justice’s case-law to date. According to 
the case-law of the Court of Justice, the principle of equal treatment of tenderers 
precludes the introduction of conditions for participation in a tender procedure 
which require knowledge of the practice of the country in which the contracting 
authority is established (Connexxion Taxi Services judgment, C-171/15, 
paragraph 42, and Pizzo judgment, C-27/15, paragraphs 45, 46 and 51). The 
Estonian laws are clear in comparison with the cases referred to above. The 
criteria for applying for a licence or registration are clear from the Law on 
foodstuffs, and the VTA has also explained how to apply for a licence on its 
website (https://vet.agri.ee); none of the tenderers has claimed that it did not 
understand these conditions or asked for clarification of the conditions. The 
selection criterion at issue is also clear and does not pose a risk of ambiguity. 
27 Cases C-225/98 and C-234/03 did not assess the permissibility of conditions 
imposed in the public interest of the European Union as a whole. The requirement 
of opening an office in the tenderer’s Member State or membership of an 
association of persons pursuing the same profession in the tenderer’s Member 
State does not serve public interests which protect the public and consumers in the 
same way in all Member States. The District Court takes the view that, unlike the 
circumstances in the aforementioned cases, in the present case the food safety 
requirements are justified as a condition for performance of the contract and the 
dispute can concern only the question of when the tenderer was required to fulfil 
the condition — when the tender was submitted or when the contract was being 
performed. Therefore, in the present case, a certain degree of inequality between 
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tenderers may also be justified by the need to ensure the effectiveness of the 
procurement procedure (subsequent performance of the public contract). 
28 It is therefore unclear to the District Court whether, read in conjunction with one 
another, Articles 2 and 46 of Directive 2004/18 are to be interpreted as precluding 
the contracting authority, in the case of a food aid procurement contract that 
exceeds the international threshold, from setting a selection criterion for the 
tenderers according to which all tenderers, irrespective of where they were 
previously established, must hold an activity licence or be registered in the 
country of the food aid operations at the time of submission of the tenders. In 
order to obtain a formalistic interpretation, account must also be taken of the 
specificities of the food-handling sector, where the provision of the service 
requires food handling in the country of the contracting authority and, in order to 
handle food, the activity licence required under points (2) to (9) of Paragraph 8(1) 
of the Law on Foodstuffs must exist, taking account of the discretion conferred on 
the Member States partly by Article 6(3)(b) and (c) and partly by Article 6(3)(a) 
of Regulation No 852/2004. 
29 If the previous question is answered to the effect that national legislation such as 
Paragraph 41(3) of the RHS is contrary to the abovementioned provisions of 
Directive 2004/18, it is also necessary to assess whether Articles 2 and 46 of 
Directive 2004/18 can be regarded as sufficiently unambiguous that the principle 
of the protection of legitimate expectations cannot be relied on against them (see 
Eesti Pagar judgment, C-349/17, paragraph 104) and whether those provisions are 
to be interpreted as meaning that the conduct of the contracting authority, such as 
that in the present case, in which all tenderers were required to hold an activity 
licence pursuant to the Law on foodstuffs at the time of submission of the tender, 
may be regarded as a manifest infringement of the rules in force, as negligence or 
as an irregularity precluding reliance on the principle of the protection of 
legitimate expectations (see Vereniging Nationaal Overlegorgaan Sociale 
Werkvoorziening and Others, judgment, C-383/06 to C-385/06, paragraphs 52 and 
56).