Opinion of the Advocate General — ECLI:EU:C:2015:191
Date: 2015-03-19
Language of the case: French
Subject matter: Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: France

Summary — Judgment of the Court (Fifth Chamber), 17 December 2015 1. Freedom to provide services — Provisions of the Treaty — Award of a services concession entailing action on the part of national authorities — Compliance with the obligation of transparency — Definite cross-border interest (Art. 56 TFEU) 2. Questions referred for a preliminary ruling — Admissibility — Need to provide the Court with sufficient information on the factual and legislative context — Existence of a possible cross-border interest — Information enabling a useful answer to be given (Art. 267 TFEU; Rules of Procedure of the Court of Justice, Art. 94) 3. Freedom to provide services — Equal treatment — Obligation of transparency — Single economic operator, chosen by the social partners, appointed by a collective agreement to manage a compulsory supplementary social insurance scheme —Extension of that agreement to all the employers and employees within a sector —Publicity insufficient to enable account to be taken of information relating to the existence of a more favourable offer — Unlawful (Art. 56 TFEU) 4. Questions referred for a preliminary ruling — Interpretation — Temporal effects of judgments giving a ruling on interpretation — Retroactive effect — Limitation by the Court —Specific features of public procurement — Contract for supplementary social insurance forming part of a particularly sensitive social context 1. In the case of supplies of services which involve action on the part of national authorities, such as the award of a services concession, the obligation of transparency does not apply to every operation but only to those that present certain cross-border interest because they are, objectively, of such a kind as to be of interest to economic operators established in Member States other than the State of the authority which awards them. In that regard, whether there is certain cross-border interest must be determined on the basis of all the relevant factors, such as the financial value of the contract, the place where it is to be performed or its technical features, having regard to the particular characteristics of the contract. (see paras 27, 30) 2. As is apparent from Article 94 of the Rules of Procedure of the Court, the latter must be able to find in a request for a preliminary ruling an account of the facts on which the questions are based and of the connection, inter alia, between those facts and those questions. Accordingly, the findings of fact needed to make it possible to ascertain whether there is certain cross-border interest, and more generally all the findings to be made by the national courts and on which the applicability of an act of secondary or primary EU legislation depends, should be made before the questions are referred to the Court. However, because of the spirit of cooperation in relations between the national courts and the Court of Justice in the context of the preliminary ruling procedure, the lack of such preliminary findings by the referring court concerning the existence of certain cross-border interest does not necessarily lead to the request being inadmissible if the Court, in the light of the information in the documents before it, considers that it is in a position to give a useful answer to the referring court. That is the case, in particular, where the order for reference contains sufficient relevant information for the existence of such an interest to be determined. (see paras 28, 29) 3. The obligation of transparency, which flows from Article 56 TFEU, precludes the extension by a Member State, to all employers and employees within a sector, of a collective agreement concluded by the employers’ and employees’ respective representatives for that sector, under which a single economic operator, chosen by the social partners, is entrusted with the management of a compulsory supplementary social insurance scheme established for employees, where the national rules do not provide for publicity sufficient to enable the competent public authority to take full account of information which has been submitted concerning the existence of a more favourable offer. Where it is the action of a public authority which creates an exclusive right, the obligation of transparency flowing from Article 56 TFEU must, in principle, be complied with when that action is taken. In that regard, the extension decision concerned is not exempt, because of its subject-matter (namely the agreement in question), from the requirements of transparency resulting from Article 56 TFEU. Although the obligation of transparency does not necessarily entail an obligation to call for tenders, it does require there to be a degree of publicity sufficient to enable, on the one hand, competition to be opened up and, on the other, the impartiality of the award procedure to be reviewed. The following factors, even if taken together, do not represent a degree of publicity sufficient to ensure that interested operators may — in keeping with the objectives of the obligation of transparency — express their interest in managing the social insurance scheme before an extension decision is adopted with full impartiality: (i) the fact that the collective agreements and the addenda thereto have been filed with an administrative authority and may be consulted on the Internet, (ii) the fact that notice is published in an official journal of the intention to start the procedure for extending such an addendum and (iii) the fact that any interested party has an opportunity to submit observations following that publication. (see paras 36, 37, 44-46, operative part) 4. It is only exceptionally that the Court may decide to restrict for any person concerned the opportunity of relying on a provision which it has interpreted with a view to calling into question legal relationships established in good faith. In the area of public procurement, Articles 2d and 2f of Directive 89/665 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 2007/66, read in the light of recitals 25 to 27 of Directive 2007/66, enable the Member States to limit, under certain conditions, the right to bring actions against contracts concluded in breach of EU law. It follows that, in certain circumstances, the interest in preventing legal uncertainty may justify putting the stability of contractual arrangements already in the course of performance before observance of EU law. Where, in a particularly sensitive social context, a judgment of the Court of Justice gives clarification of a legal situation concerning the specific scope of the obligation of transparency flowing from Article 56 TFEU, a situation in reliance on which employers and employees — who were not directly involved in a procedure extending to all employers and employees in the sector concerned collective agreements appointing a provident society as the single managing body of one or more supplementary schemes for insurance or for reimbursement of healthcare costs — have entered into contractual commitments affording them guarantees as to supplementary insurance, it must be held that the effects of that judgment will not concern the collective agreements under which a single body was appointed to manage a supplementary social insurance scheme and which a public authority has, before the date of delivery of the judgment, made binding on all employers and employees within a sector, without prejudice to legal proceedings brought before that date. (see paras 50-53, operative part)