62008CC0145_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
Introduction
1. These two factually and procedurally complex cases, which have been joined by the Court, raise questions of Community public procurement law concerning, in particular, the Remedies Directive (2) and the Services Directive. (3)
2. The ultimate issue in both cases concerns the admissibility of an action, brought by an individual member of an ad hoc consortium without legal personality which was unsuccessful in its bid for a contract, seeking annulment of a decision taken in the course of an award procedure.
3. The Court has already held that the Remedies Directive does not preclude a national rule to the effect that, where the members of such a consortium wish to bring an action against the decision awarding the contract, they must all act together and the action must be admissible in respect of each of them individually. (4)
4. However, the situation in the present cases has the added features that the decision challenged is not the final award but a preliminary decision on eligibility to be awarded the contract, taken not by the contracting authority but by a distinct regulatory authority, and that the decision is of specific relevance to only one member of the consortium and/or its annulment is sought with a view not to obtaining the final award but to being able to seek damages in respect of alleged irregularities in the decision.
The issue is further complicated by the fact that national case-law has changed during the course of the proceedings, so that an action which might initially have been admissible can no longer be admissible.
5. Those issues are raised in relation to the Remedies Directive.
The applicability of that directive is dependent on a contract’s falling within the scope of, inter alia, the Services Directive or the Works Directive. (5)
Its applicability is not in doubt in the second case, where the contract is agreed to be subject to the Works Directive.
It is, however, less certain in the first case, where the Services Directive may or may not be applicable, depending on whether the award in question is classified as a service contract or a service concession (which would not fall within its scope).
6. A prior question in the first case is therefore how to classify the contract in issue, namely, a mixed contract in which:
a public authority sells 49% of the shares in a public casino at a price offered by the highest bidder, to whom it hands over management of the casino and the right to appoint the majority of its directors;
that management is remunerated by a percentage of the operating profits;
the successful bidder undertakes to implement an improvement and modernisation plan;
and the public authority, if it operates any other casino in future within the region concerned, undertakes to compensate the successful bidder.
7. A further issue concerns the extent to which the availability of the remedy in question may be required by fundamental rules and principles of Community law, even if the Remedies Directive does not apply.
Legislative background
Community legislation
The Services Directive (92/50)
8. Article 1(a) defines public service contracts as
‘contracts for pecuniary interest concluded in writing between a service provider and a contracting authority’
to the exclusion of, in particular, public supply contracts and public works contracts, and contracts awarded in the water, energy, transport and telecommunications sectors, all of which are governed by other directives.
A number of other types of contract, defined by their subject-matter, are also excluded, but they do not appear relevant for present purposes.
Under Article 1(b), contracting authorities are defined as
‘the State, regional or local authorities, bodies governed by public law, associations formed by one or more of such authorities or bodies governed by public law’
and, under Article 1(c), a service provider is
‘any natural or legal person, including a public body, which offers services’.
9. Article 2 provides that, if a public contract is intended to cover both supplies and services, it is to fall within the scope of the directive if the value of the services exceeds that of the products.
10. Article 3(1) requires contracting authorities to apply procedures adapted to the provisions of the directive, and Article 3(2) requires them to ensure that there is no discrimination between service providers.
11. Article 8 stipulates that contracts for services listed in Annex I A (6) are to be awarded in accordance with the provisions of Titles III to VI, (7) while, under Article 9, contracts for services listed in Annex I B are to be awarded in accordance with Articles 14 and 16, which are in Titles IV and V respectively.
Under Article 10, contracts for services listed in both annexes are to be awarded in accordance with the provisions of Titles III to VI where the value of the services listed in Annex I A is greater than the value of those listed in Annex I B and, in other cases, in accordance with Articles 14 and 16.
12. Article 14 concerns, essentially, technical specifications to be included in the general or contractual documents in each case, and Article 16 concerns publication of a notice of the award of a contract.
13. None of the services listed in Annex I A appears relevant to the question of classification raised in the first of the present cases.
Annex I B, however (to which only Articles 14 and 16 apply), includes (17) ‘Hotel and restaurant services’, (26)
‘Recreational, cultural and sporting services’ and (27) ‘Other services’.
It is common ground that the services in issue fall within one or more of those categories.
14. Article 26(1) provides:
‘Tenders may be submitted by groups of service providers.
These groups may not be required to assume a specific legal form in order to submit the tender;
however, the group selected may be required to do so when it has been awarded the contract.’ (8)
The Remedies Directive (89/665)
15. Although the title of the Remedies Directive still refers only to public supply and public works contracts, it was none the less amended by the Services Directive to cover contracts falling within the scope of the latter.
16. Following that amendment, (9) Article 1 provides:
‘1. The Member States shall take the measures necessary to ensure that, as regards contract award procedures falling within the scope of [inter alia, the Works and Services Directives], decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in the following Articles and, in particular, Article 2(7) on the grounds that such decisions have infringed Community law in the field of public procurement or nation[al] rules implementing that law.
2. Member States shall ensure that there is no discrimination between undertakings claiming injury in the context of a procedure for the award of a contract as a result of the distinction made by this Directive between national rules implementing Community law and other national rules.
3. The Member States shall ensure that the review procedures are available, under detailed rules which the Member States may establish, at least to any person having or having had an interest in obtaining a particular public supply or public works contract and who has been or risks being harmed by an alleged infringement.
In particular, the Member States may require that the person seeking the review must have previously notified the contracting authority of the alleged infringement and of his intention to seek review.’
17. Article 2 provides, in particular:
‘1. The Member States shall ensure that the measures taken concerning the review procedures specified in Article 1 include provision for the powers to:
(a) take, at the earliest opportunity and by way of interlocutory procedures, interim measures with the aim of correcting the alleged infringement or preventing further damage to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a public contract or the implementation of any decision taken by the contracting authority;
(b) either set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discriminatory technical, economic or financial specifications in the invitation to tender, the contract documents or in any other document relating to the contract award procedure;
(c) award damages to persons harmed by an infringement.
…
5. The Member States may provide that where damages are claimed on the grounds that a decision was taken unlawfully, the contested decision must first be set aside by a body having the necessary powers.
6. The effects of the exercise of the powers referred to in paragraph 1 on a contract concluded subsequent to its award shall be determined by national law.
Furthermore, except where a decision must be set aside prior to the award of damages, a Member State may provide that, after the conclusion of a contract following its award, the powers of the body responsible for the review procedures shall be limited to awarding damages to any person harmed by an infringement.
7. The Member States shall ensure that decisions taken by bodies responsible for review procedures can be effectively enforced.
…’
National law
Casino licences
18. Under Article 1(7) of Law 2206/1994 governing casinos, (10) casino licences are to be granted following a public international tendering procedure organised by a seven-member commission.
In accordance with Article 3, casinos are subject to State control.
Ineligibility for award of public contracts
19. Law 3021/2002, implementing Article 14(9) of the Greek Constitution, provides for restrictions on the award of public contracts to persons having active interests in the news media sector.
It establishes an irrebuttable presumption of incompatibility as between the status of owner, partner, major shareholder or management executive of an undertaking active in that sector and that of owner, partner, major shareholder or management executive of an undertaking which is awarded a works, supply or services contract by the State or by a legal entity in the public sector (the presumption extending also to certain family members). (11)
20. Before awarding or signing the contract, the contracting authority must obtain from the Ethniko Simvoulio Radiotileorasis (National Council for Radio and Television, the ‘ESR’) a certificate that there is no such incompatibility.
Failure to do so renders the contract null and void.
The ESR’s decision is binding, but may be challenged in the courts by any person with an interest.
21. In its recent judgment in Michaniki, (12) the Court held that such an irrebuttable presumption was precluded by Community law, even if it pursued the legitimate objectives of equal treatment of tenderers and of transparency in award procedures.
The Court did not, however, state that Community law would preclude a rebuttable presumption of the kind described.
Remedies in procurement procedures
22. The Remedies Directive is transposed in Greece by Law 2522/1997, Article 2(1) of which provides that any person having an interest in the award of a public works, supply or services contract and liable to be adversely affected by a breach of Community or national law may, in accordance with certain detailed rules, apply to the courts for interim relief, for annulment, or a finding of invalidity, of the unlawful act, and for damages.
23. Article 4(1) of the same law specifies that the right to seek annulment or a finding of invalidity applies when the alleged breach of Community or national law concerns any step in the procedure leading up to the award.
Article 4(2) provides that, if an act or omission of the contracting authority is declared void after the contract is awarded, and unless the award procedure has been suspended as a measure of interim relief, the contract itself is not affected;
in that case the applicant may seek damages in accordance with Article 5.
24. Article 5(1) specifies that the right to seek damages is governed by Articles 197 and 198 of the Civil Code (providing for liability in damages arising out of negotiations) and that any provision excluding or restricting that right is inapplicable.
Article 5(2) provides (in accordance with Article 2(5) of the Remedies Directive) that damages cannot be awarded unless the competent court has first annulled the unlawful act or omission in question or made a finding of invalidity, but allows an action for a finding of invalidity and an action for damages to be combined in accordance with the generally applicable rules.
25. Article 47(1) of Presidential Decree 18/1989, codifying the laws relating to the Simvoulio tis Epikratias (Council of State) allows any natural or legal person whose legitimate interests are affected by an administrative act to seek its annulment.
26. In a line of chamber decisions dating from 1992, that court (which appears to have sole jurisdiction to rule on the validity of public procurement procedures) consistently interpreted that provision in such a way as to allow an action for annulment of the award of a public contract to be brought by individual members of a consortium taking part in the procedure.
In the course of the main proceedings in the present two cases, however, the court in plenary formation has decided that such an action is inadmissible unless brought jointly by all the members of the consortium (on the ground, essentially, that only the consortium as constituted for the purposes of the procedure could be awarded the contract if the original award were annulled).
That interpretation, in conjunction with Article 5(2) of Law 2522/1997, has implications for the availability of an action for damages in respect of an irregularity in the procedure brought by an individual member of the consortium.
Facts, procedure and questions referred
Case C‑145/08
27. In October 2001, the competent interministerial committee decided to privatise Elliniko Kazino Parnithas AE (‘EKP’, a subsidiary of Ellinika Touristika Akinita AE, ‘ETA’), a casino undertaking wholly owned by the Greek State.
The notice of invitation to tender provided for an initial preselection stage to determine which tenderers met the conditions set out.
The successful tenderer was to be selected at a subsequent stage.
Two consortia were preselected.
28. The terms were set out in detail in a draft contract annexed to a supplementary notice in April 2002. (13)
29. Article 3 of those terms stated that the contract was to be a ‘mixed’ contract comprising, in summary, four agreements under which, respectively:
– ETA would sell (49% of the) shares in EKP to ‘AEAS’ (a ‘single purpose limited company’ to be set up by the successful tenderer); (14)
– AEAS would acquire the right to appoint the majority of EKP’s board of directors and thus to administer the company in accordance with the terms of the contract;
– AEAS would take over the management of the casino business, in return for payment;
– AEAS, as administrator of EKP and as manager of the casino business, would undertake vis-à-vis ETA to implement a development plan to be approved by EKP’s board of directors.
30. The development plan was to comprise refurbishing the casino and enhancing the facilities offered, refurbishing and improving two adjoining hotel units and developing stretches of surrounding land, all to be completed within 750 days of obtaining planning permission.
31. Article 14 of the draft contract concerned AEAS’s management of the casino and remuneration thereof.
Essentially, the management was to be prudent, entirely in accordance with the law and financially profitable for EKP (Article 13(7) specified in addition that EKP was to be administered in such a way as to achieve an annual pre-tax profit of at least EUR 105 000 000 in the first five years).
In return, AEAS would receive a sum no greater than a scaled percentage of the
annual operating profits (decreasing from 20% of profits up to EUR 30 000 000 to 5% of profits over EUR 90 000 000) and 2% of turnover.
32. Under Article 21(1) of the draft contract, if ETA were to operate lawfully any other casino in the same region (Attica) within 10 years from the date of effect of the contract, it would have to pay AEAS compensation equal to 70% of the price of the shares acquired in EKP by AEAS, reduced by one tenth each year.
33. Under Article 23(1), the contract would terminate at the end of the 10 th
year from taking effect. (15)
34. The contract was awarded to a group led by Hyatt Regency Xenodocheiaki kai Touristiki (Thessaloniki) AE (now renamed Regency Entertainment Psychagogiki Touristiki AE) (‘Regency’).
ETA therefore sought and obtained from the ESR a certificate that none of the owners, partners, major shareholders or management executives of the undertakings in the consortium presented any incompatibility as provided for in Law 3021/2002.
35. An action for annulment of the ESR’s decision, in which it is alleged that a management executive of one member of the Regency consortium did have an incompatible connection with the news media sector (being the son of a major shareholder in a Greek media group), is now before the Simvoulio tis Epikratias.
36. The action was lodged in the name of the unsuccessful tendering consortium and all seven of its members.
A chamber of the Simvoulio tis Epikratias dismissed it in so far as it was brought by the consortium as a whole and by four of its members, because they did not appear and the lawyer had not been duly authorised to act on their behalf.
In so far as the action was brought by the remaining three members, including Club Hotel Loutraki (‘Loutraki’), the chamber referred the case to the plenary court in view of its importance.
In doing so, the chamber applied the then settled case-law under which an action brought by certain members of a consortium could be admissible.
Its ruling of inadmissibility as regards the other applicants is now irrevocable and cannot be reviewed in the procedure before the plenary court, which has – in the meantime – reversed the previously settled case-law. (16)
37. As regards the substance of the action, the Simvoulio tis Epikratias points out that the contract is mixed, in that it comprises (i) a sale of shares to the successful tenderer which, as such, is not subject to Community procurement rules, (ii) a service contract to be concluded with that tenderer, who undertakes the management of the casino premises and (iii) an undertaking to carry out certain works.
Of the three parts, according to the referring court, (i) is the main purpose of the contract, (ii) is ancillary and (iii) is the least important.
38. The referring court wonders whether part (ii) of the contract can be classified as a public service concession, not subject to Community directives.
That might depend on the extent to which the successful tenderer bears the risk in operating the services concerned, bearing in mind that they relate to activities which, under national law, may be subject to exclusive or special rights.
It could also be relevant that running a casino has never in any way constituted a public
service in Greek law – although the term ‘public service’ might have to be defined as a concept of Community law.
39. If the Court should consider that part (ii) of the contract is a public service contract, the national court then wonders whether the action for annulment of the ESR’s decision falls within the scope of the Remedies Directive.
The services concerned fall within Annex I B to the Services Directive, and contracts for such services are subject only to Articles 14 and 16 of the directive, which impose procedural obligations.
The referring court none the less wonders whether the principle of equal treatment of tenderers, which the Remedies Directive is designed to protect, applies also in such cases.
40. If the Remedies Directive does apply, the national court notes that, according to Espace Trianon and Sofibail, (17) a national rule which requires an action for annulment of a decision awarding a public contract to be brought by all the members of a tendering consortium is not contrary to that directive.
However, it wonders whether that applies to all types of judicial protection guaranteed by the directive, in particular to claims for damages.
The combination of the various national rules means that individual members of an unsuccessful tendering consortium are prevented not only from seeking annulment of the act adversely affecting them jointly but also from obtaining compensation for any damage they have suffered individually.
Their ability to seek redress is thus dependent on the will of the other members of the consortium, whose interest in obtaining reparation may be different.
41. The issue is complicated by the fact that, pursuant to Article 2(5) of the Remedies Directive, Greece has made a claim for damages in the field of public procurement conditional on prior annulment of the unlawful act, with different courts having jurisdiction over the two matters – the Simvoulio tis Epikratias is competent as regards validity, whereas the ordinary courts are competent in damages.
That is in contrast to the general situation concerning reparation for damage caused by unlawful acts of the State or of public bodies, where the court hearing the claim for damages also reviews the legality of the administrative act.
42. It might therefore be considered that a procedure intended to safeguard rights deriving from Community law was less favourable than a procedure to safeguard comparable rights deriving from national law.
43. Finally, the Simvoulio tis Epikratias wonders whether the procedural situation, in which the current case-law requires an action of the kind in question to be brought jointly by all members of a consortium but the action as brought by only three members had been declared admissible under previous case-law, is compatible with the right to a fair hearing, as a fundamental principle of Community law and as set out in Article 6 of the European Convention on Human Rights, and with the principle of protection of legitimate expectations.
44. The Simvoulio tis Epikratias therefore seeks a preliminary ruling on the following questions:
‘(1) Does a contract by which the contracting authority entrusts to the contracting undertaking the management of a casino business and the execution of a development plan consisting in the upgrading of the casino premises and the commercial exploitation of the possibilities offered by the casino’s licence, and which contains a term under which the contracting authority is obliged to pay the contracting undertaking compensation should another casino lawfully operate in the wider area in which the casino in question operates, constitute a concession, not governed by [the Services Directive]?
(2) If [question 1] is answered in the negative:
does a legal action which is brought by persons who have participated in the procedure for the award of a public contract of mixed form providing inter alia for the supply of services subject to Annex I B to [the Services Directive], and in which they plead breach of the principle of equal treatment of participants in tender procedures (a principle affirmed by Article 3(2) of that directive), fall within the field of application of [the Remedies Directive], or is its application precluded inasmuch as, in accordance with Article 9 of [the Services Directive], only Articles 14 and 16 of the latter apply to the procedure for the award of the abovementioned contract for the supply of services?
(3) If [question 2] is answered in the affirmative:  [(18) ] accepting that a national provision in accordance with which only all the members of a consortium without legal personality which has participated unsuccessfully in a public procurement procedure can bring a legal action against the act awarding the contract, and not consortium members individually, is not in principle contrary to Community law and specifically to [the Remedies Directive], and that that still applies where the legal action has initially been brought by all the members of the consortium jointly but ultimately proves, as regards some of them, to be inadmissible, is it in addition necessary, from the viewpoint of application of that directive, to examine, in order to make a declaration of inadmissibility, whether those individual members thereafter retain the right to claim before another national court any damages which may be envisaged by a provision of national law?
(4) When it has been held by settled case-law of a national court that an individual member of a consortium may also bring an admissible legal action against an act falling within a public procurement procedure, is it compatible with [the Remedies Directive], interpreted in the light of Article 6 of the European Convention on Human Rights as a general principle of Community law, to dismiss a legal action as inadmissible, because of a change to that settled case-law, without the person who has brought that legal action first being given either the opportunity to cure the inadmissibility or, in any event, the opportunity to set out, pursuant to the adversarial principle, his views relating to that issue?’
Case C‑149/08
45. In 2004, in the context of a public works procurement procedure for the construction of a town hall and underground car park, (19) the city of Thessaloniki awarded the contract to a consortium comprising the companies Aktor ATE (‘Aktor’), Themeliodomi AE and Domotechniki AE.
The ESR, consulted on the existence of a possible incompatibility within the meaning of Law 3021/2002, found that a major shareholder of a company which was one of Aktor’s major shareholders did have an incompatible connection with the news media sector (being the son of a major shareholder in a Greek media group (20) ), and refused to issue a certificate for the consortium.
Aktor, alone of the members of the consortium, requested the ESR to reconsider its decision and has now applied to the Simvoulio tis Epikratias for review of the ESR’s dismissal of that request.
It did so on the basis of the existing case-law allowing such actions to be brought by individual members of a consortium.
However, the plenary court, in the course of its consideration of both this and the Loutraki
case, has overturned that case-law, with the effect that it is no longer possible for Aktor to seek to resolve the problem.
46. In that regard, the case thus raises similar issues to those in Case C‑145/08.
The Simvoulio tis Epikratias therefore seeks a preliminary ruling on two questions, identical to questions 3 (with the exception of the introductory phrase) and 4 in Case C‑145/08.
Procedure before the Court of Justice
47. By order of 22 May 2008, the two cases were joined for the purposes of the written and oral procedure and the judgment.
48. Written observations have been submitted to the Court by Loutraki, by three members of the successful tendering consortium in Case C‑145/08 – namely, Athens Resort Casino AE (‘Athens Resort’) jointly with Regency, and Ellaktor AE (‘Ellaktor’) – by Aktor (the applicant in the main proceedings in Case C‑149/08), by the Greek Government and by the Commission.
49. At the hea ring on 11 June 2009, Loutraki, Athens Resort, Aktor, the Greek Government and the Commission presented oral argument.
Assessment
50. The two questions in Case C‑149/08 are identical to the last two questions in Case C‑145/08.
For the sake of simplicity, I shall refer to all the questions by their numbering in the latter case – that is to say, as I have set them out above.
Question 1
51. The essential issue that the national court must determine is whether the contract in issue is one to which the Remedies Directive applies specifically, or whether it is simply subject, more generally, to the fundamental rules of Community law and the principles of the Treaty – which apply, in any event, to Member States’ public procurement procedures as long as they present a certain cross-border interest. (21)
52. That task is, however, complicated by the fact that the contract incorporates a number of disparate elements, of unequal importance in the whole.
They are, essentially, a transfer of shares, an undertaking to provide a service for remuneration and an undertaking to implement a programme of works.
Moreover, the service element might be viewed as a service contract (in which case it could be, taken in isolation, subject to at least two of the provisions of the Services Directive) or as a service concession (in which case it would fall outside the scope of that directive but would remain subject to the fundamental rules and principles of the EC Treaty (22) ).
I shall deal with those two issues in turn.
Mixed contracts
53. It may be helpful to begin by recalling briefly (23) the approach of Community law to mixed contracts – bearing in mind always that the actual classification of the contract is a matter solely for the national court on the basis of the facts before it.
54. When faced with a public award procedure comprising disparate elements which would, if treated separately, be subject to different sets of rules, the first step is to enquire whether such separate treatment would indeed have been possible.
If so, any element which, taken on its own, falls within the scope of a particular procurement directive must be awarded in compliance with the provisions of that directive. (24)
If not, it must be decided which rules apply to the whole.
55. In Gestión Hotelera Internacional, (25) the Court held that, where a mixed contract relates to both a transaction within the scope of a procurement directive (in that case, a public works contract) and a transaction otherwise outside the scope of Community procurement law (in that case, an assignment of property in the form of a lease), the contract as a whole will not fall within the scope of the directive if the former is merely incidental to the latter.
56. In the same vein, if a contract contains elements relating to different types of public contract, it is the main purpose or object which determines which directive is to be applied. (26)
57. That case-law coincides with the approach expressed by the legislature in the 16 th
recital in the preamble to the Services Directive:
‘… public service contracts, particularly in the field of property management, may from time to time include some works; … for a contract to be a public works contract, its object must be the achievement of a work; … in so far as these works are incidental rather than the object of the contract, they do not justify treating the contract as a public works contract’.
58. Pursuant to Article 2 of that directive, a mixed supply and service contract is to be categorised according to which part has the greater value and, pursuant to Article 10, the same principle applies where contracts cover services listed in both Annex I A and Annex I B.
59. Clearly, relative value is a simple and objective criterion for determining whether a particular aspect is the principal object of a contract or merely incidental.
However, since the application of the Community directives is triggered at different value thresholds for different types of contract, it cannot be the only criterion, or there could be a danger of manipulation in order to remove certain contracts from the scope of the procurement rules. (27)
60. From the order for reference, and from the wording of question 1, it seems that the referring court has performed the analysis I have outlined, and has reached the view that:
(i) the transfer of shares is the main purpose of the procedure and falls outside the scope of Community procurement rules;
(ii) the service and works elements can be treated together, but separately from the sale of shares, and subjected to the rules of such directives as are applicable to them;
(iii) the works element is merely incidental to the service element, so that the decisive factor is whether the service element is a service contract or a service concession.
61. That analysis is, of course, fully within the competence of the national court rather than this Court, and I shall therefore proceed on the same basis, even though several parties expressed at the hearing the view that the whole contract was indivisible and dominated by the sale of shares in EKP (a partial privatisation).
62. My only comment, with regard to that sale, is that I would agree with the position set out in the Commission’s Green Paper on public-private partnerships and Community law on public contracts and concessions, (28) that:
‘the provisions on freedom of establishment within the meaning of Article 43 of the Treaty must be applied when a public authority decides, by means of a capital transaction, to cede to a third party a holding conferring a definite influence in a public entity providing economic services normally falling within the responsibility of the State.
In particular, when the public authorities grant an economic operator a definite influence in a business under a transaction involving a capital transfer, and when this transaction has the effect of entrusting to this operator tasks falling within the scope of the law on public contracts which had been previously exercised, directly or indirectly, by the public authorities, the provisions on freedom of establishment require compliance with the principles of transparency and equality of treatment, in order to ensure that every potential operator has equal access to performing those activities which had hitherto been reserved.’
63. Consequently, the fundamental rules and principles of the Treaty will apply in any event to the whole contract, even if it transpires that the more detailed rules of the Remedies Directive apply only to the service element and its incidental works contract.
64. In that regard, the question is whether the service element on the basis of which the contract is to be classified is a service contract or a service concession.
65. Before addressing that point, however, I would rule out the suggestion that, independently of any other ground, the contract could be excluded from the scope of the Services Directive because the service involved – operating a casino – is not a public
service in national law.
The definition of a service within the meaning of the directive is a matter for Community law. (29)
The definitions in Article 1 are broad, (30) and clearly intended to catch all service contracts awarded by public authorities.
And, true though it may be that the State has no responsibility to make gaming facilities available to the public, the fact remains that, in many countries, there is considerable State involvement in gaming (often with a view, inter alia, to protecting the public from less scrupulous operators).
Service concessions
66. First of all, it is clear that, while public service concessions are indeed excluded from the scope of the Services Directive, (31) the directive contains no definition of a service concession.
67. None the less, at the material time in Case C‑145/08, a Community legislative definition did exist, in the Works Directive, (32) of a public works concession, and that definition has since served as a basis for parallel definitions of service concessions in Directives 2004/17 (33) and 2004/18. (34)
Also at the material time, the Commission had sought to define service concessions in a non-binding communication, (35) drawing on the Court’s then existing case-law. (36)
In Parking Brixen, (37) the Court referred to the definition in Directive 2004/18 as relevant to its conclusion on the definition of the contract in issue, even though – as is the case here ­– that directive did not formally apply at the material time.
And, much more recently, in Eurawasser, (38) the Court has referred to its pre-2004 case-law in order to refine and complete the definition of a service concession in Directive 2004/17.
The definition of a service concession in Community law derives, thus, from an interlacement of legislation, case-law and guidance which appears stable over time.
68. The essence of the definition in the 2004 directives is that a service concession is a contract which meets the definition of a service contract ‘except for the fact that the consideration for the provision of services consists either solely in the right to exploit the service or in [that] right together with payment’. (39)
That corresponds to the Court’s criterion of ‘remuneration [which] comes not from the public authority concerned, but from sums paid by third parties’. (40)
69.
Such a criterion does appear to be met in the case of the award in issue.
According to the terms of the contract as set out in the order for reference, the successful tenderer (or AEAS) is remunerated essentially by a proportion of the profits and/or turnover derived from the operation of the casino under its own management.
That remuneration comes therefore from ‘sums paid by third parties’, even if it does not represent the whole of those sums.
70. However, in addition, the Court has stressed that an essential feature of a public service concession is that the concession holder assumes the risk of operating the services in question. (41)
71. That aspect has been the subject of debate in the present context, particularly with regard to the extent of local competition and the compensation to which AEAS is entitled if another casino is opened in the same administrative region.
Athens Resort, Ellaktor and the Greek Government argue that the risk assumed by the successful tenderer is real and justifies classification as a service concession, whereas Loutraki takes the opposite view.
The Commission also inclines towards the view that it is not a concession but – rightly – points out that the actual degree of risk transferred by the contracting authority and assumed by the successful tenderer can be assessed only by the national court.
72. Since the hearing in the present case, the Court has given some further guidance on what kind and degree of transfer of risk is required for a contract to be categorised as a service concession.
In Eurawasser, (42) it ruled that ‘in relation to a contract for the supply of services, the fact that the supplier does not receive consideration directly from the contracting authority, but is entitled to collect payment under private law from third parties, is sufficient for that contract to be categorised as a “service concession” …, where the supplier assumes all, or at least a significant share, of the operating risk faced by the contracting authority, even if that risk is, from the outset, very limited on account of the detailed rules of public law governing that service’.
73. The Court thus took the view that what matters is not that the operating risk should be significant in itself but that whatever risk is already assumed by the contracting authority should be transferred, either fully or to a significant extent, to the successful tenderer.
74. It is true that in that case the Court expressly had regard to the fact that the limitation of the risk in issue derived from public regulations (common in the utilities sector) which were, on the one hand, beyond the control of the contracting authority and, on the other hand, such as to reduce the likelihood of any adverse effect on transparency or competition. (43)
75. However, I do not think that such a criterion can be decisive.
The Court also stated that ‘it must remain open to the contracting authorities, acting in all good faith, to ensure the supply of services by way of a concession, if they consider that to be the best method of ensuring the public service in question, even if the risk linked to such an operation is limited’. (44)
It seems to me that the notion of a service concession cannot depend on there being a risk of actual failure but must include all cases where the operation of the service will be subject to the normal fluctuations of economic activity, which the operator must absorb.
76. The assessment is of course a matter for the national court in each case.
However, from the details given in the order for reference, it seems plausible that such a condition is met in the case of the contract in the present case.
77. Like many other businesses, a casino (even a State-run casino), involves a degree of risk. (45)
Gaming and ancillary facilities can only be run at a certain cost, following a certain investment, and there are no guaranteed takings or clientele.
Demand for gaming services may vary, even widely, depending on many factors, including, but not limited to, competition.
And the mere fact that a service can be predicted with some assurance to be profitable cannot affect its ability to be provided in the form of a concession.
78. In the present case, the risk already borne by the State in running the casino appears, under the terms of the contract, to have been transferred to a sufficient extent to AEAS.
The latter has had to invest a considerable sum of money in the purchase of shares, has had to assume various obligations to redevelop the premises (apparently at its own expense), and receives remuneration the precise amount of which appears to be dependent on the way in which it runs the casino (for which it is responsible not only vis-à-vis itself but also vis-à-vis the contracting authority).
It is true that some of the risk (the return on investment) remains with the State body ETA which retains 51% of the shares in the casino.
None the less, AEAS does appear to assume a proportion of the risk commensurate with its own involvement.
79. The factor which has been raised by the Simvoulio tis Epikratias as possibly affecting the assumption of risk by the successful tenderer is the condition to the effect that, if ETA were to operate any other casino in the same region within 10 years from the date of effect of the contract, it would have to pay AEAS compensation based on the price of the shares transferred.
That, clearly, protects AEAS rather effectively from the worst excesses of possible competition.
80. However, it does not, it seems to me, affect in any way the classification of the award as a service concession.
Service contracts and service concessions are distinct concepts, the essence of one being easily distinguished from the essence of the other.
In a service contract, the service provider receives agreed consideration (the amount of its tender) from the contracting authority which, if the service is intended for third parties who pay for it, takes any profits or covers any losses.
The amount of the tender will be based on the predicted cost of providing the service.
In a service concession, it is the service provider which takes the profits or covers the losses and pays an agreed sum (the amount of its tender) to the contracting authority. (46)
The amount of the tender will be based on the predicted profits.
Clearly, the probable extent of competition will affect that prediction, and thus the amount of the tender submitted (and, indeed, the willingness of any party to participate in the procedure at all), but I do not see that it can affect the nature of the transaction and turn a service concession into a service contract.
81. If I have correctly understood the circumstances of the case in the main proceedings, the amount of each tender was the amount the tenderer was willing to pay for the shares in EKP, calculated by taking into account, inter alia, the obligation to carry out certain works and the amounts which could be expected to accrue from the successful tenderer’s share of the operating profits of the casino.
If that is so, the compensation clause giving protection against competition for 10 years would certainly affect each tenderer’s calculations, but would not change the nature of the award, which appears to be that of a service concession (albeit to an extent in partnership with the contracting authority) rather than a service contract.
82. I have taken that view on the basis of the terms of the contract as I understand them from the order for reference, and in particular from the wording of the question on which the Simvoulio tis Epikratias seeks guidance, but it is of course possible that other factors, to be assessed by that court, may reveal a rather different picture of the actual extent of the transfer of risk.
83. In any event, I suggest that the Court should indicate that a contract for services under which the contractor’s remuneration comes from third parties is to be classed as a service concession, (47) and thus as falling outside the scope of the Services Directive, when the contractor assumes all or at least a significant part of the operating risks incurred by the contracting authority, even if that risk is limited from the outset, and that such classification is not affected by the fact that the contracting authority guarantees compensation in the event of subsequent competition, provided that such a guarantee does not significantly affect the extent of the transfer
of risk (as opposed to the degree of risk on the basis of which each potential tenderer will assess his interest in participating and the amount which he is prepared to tender).
84. However, it must not be forgotten that, notwithstanding the fact that service concessions fall outside the scope of the Services Directive, the authorities concluding them are bound to comply with the fundamental rules and principles of the EC Treaty. (48)
Question 2
85. If, on the basis of the answer to question 1, the national court decides that the contract falls within the scope of the Services Directive, the question then arises whether the fact that the services concerned fall exclusively within the list in Annex I B to that directive affects the applicability of the Remedies Directive in the circumstances of the case.
86. In my view, it does not.
87. It is true that, as the Court pointed out in Commission
v Ireland, (49) the directive is based on the assumption that contracts for services listed in Annex I B do not normally arouse such cross-border interest as to justify imposing rules to ensure that undertakings from other Member States can examine the contract notice and submit a tender, and that is why only minimal requirements are imposed for such contracts.
88. However (quite apart from the fact that the contract in the present case is undoubtedly of sufficient value to arouse cross-border interest), I agree here with the Commission that the Remedies Directive explicitly applies to all award procedures ‘falling within the scope’ (50) of the Services Directive, and that the services listed in Annex I B fall just as much within that scope as do those listed in Annex I A, no matter how limited the obligations actually imposed on them by the directive.
89. I thus do not accept the Greek Government’s view that the Remedies Directive applies only to decisions alleged to be in breach of Articles 14 and 16 of the Services Directive, which are the only provisions to regulate contracts for services listed in Annex I B.
90. There is simply nothing in the wording of the Remedies Directive to indicate any intention to limit its application to proceedings in respect of the specific provisions of the substantive directive which apply to a particular procurement procedure.
The aim is, on the contrary, to put an end to ‘the absence of effective remedies or inadequacy of existing remedies [which] deter Community undertakings from submitting tenders in the Member State in which the contracting authority is established’. (51)
That aim could not be adequately achieved if the Greek Government’s approach were to be followed.
91. Moreover, as the national court points out in its question, in the main proceedings in Case C-145/08 the applicants are invoking the principle of equal treatment, which is specifically enshrined in Article 3(2) of the Services Directive.
Article 3(2) is one of the general provisions in Title I of the directive and, on any normal reading, applies to all public service contracts within the meaning of Article 1(a).
It is only with regard to Titles III to VI that a distinction is drawn between services listed in Annex I A and those listed in Annex I B.
92. If, however, on the basis of the answer to question 1, the national court considers that the contract is for a public service concession, then it clearly will not be subject to the specific provisions of the Remedies Directive.
None the less, the fundamental rules and principles of the Treaty – including, of course, the principle of equal treatment – will still apply.
93. In Telaustria, (52) the Court stressed that those principles mean that it must be possible for the impartiality of procurement procedures to be reviewed, and it is settled case-law that individuals are entitled to effective judicial protection of the rights they derive from the Community legal order. (53)
94. What those requirements actually involve for the present cases is a matter to be addressed in the context of questions 3 and 4.
Question 3
95. As I understand it, by question 3 the national court wishes to know, in essence, whether the Espace Trianon and Sofibail
case-law (54) (to the effect that the Remedies Directive does not preclude a national rule under which only the members of a tendering consortium acting together may bring an action against the decision awarding the contract, even if all the members act together but the application of one member is held inadmissible) might have to be nuanced if its application entailed depriving individual members not only of the possibility of having a decision of the contracting authority set aside, but also of the possibility of seeking compensation for individual damage suffered as a result of irregularities in the procedure.
96. The answer to that question therefore calls for an examination of the Court’s reasoning in Espace Trianon and Sofibail .
97. I note that the legal background to the two cases is strikingly similar.
In Espace Trianon and Sofibail, the legislative rule in issue was also embodied in a law governing the supreme administrative court, under which actions for annulment could be brought by any party establishing harm or an interest, and that rule had been interpreted as requiring the members of a consortium without legal personality which had participated unsuccessfully in a public procurement procedure to act together in order to bring an action against the decision awarding the contract. (55)
The case concerned an action brought by both members of an unsuccessful tendering consortium, which was held inadmissible in respect of one of them because the decision to bring proceedings had not been taken by the competent organ of the company. (56)
98. The question was whether Article 1 of the Remedies Directive precluded a rule such as that in issue, either in general or in the circumstances of the case. (57)
99. The Court considered that the reference in Article 1(3) to ‘any person having or having had an interest in obtaining a public contract’ was to a person who, in tendering for a public contract, had demonstrated his interest in obtaining it.
All the members of a consortium tendering as such would be obliged to sign the contract and carry out the work if the tender were accepted.
In the main proceedings, nothing had prevented the members of the consortium from bringing a joint action for annulment of the decision awarding the contract. (58)
100. Therefore, a national rule requiring an action for annulment of a contracting authority’s award to be brought by all the members of a tendering consortium did not limit the availability of such an action in a way contrary to Article 1(3) of the Remedies Directive, particularly because under Belgian law the members of a consortium could settle the issue of its capacity to bring legal proceedings by internal agreement. (59)
101. Nor did the rule require that a group of contractors must assume a specific legal form in order to submit a tender – only that, for the purpose of bringing proceedings, a consortium must be represented in accordance with the rules applying to the legal form which its members themselves assumed in order to be able to tender.
Moreover, the rule applied in the same way to all actions brought by members of consortia, whether the claims were founded on a breach of Community law or of national law, or were related to public contracts or to other operations. (60)
102. Consequently, such a rule could not undermine the requirement for effective review laid down in Article 1(1) of the Remedies Directive.
That principle did not require an action to be held admissible when the provisions relating to representation in legal proceedings, which stem from the legal form assumed, had not been adhered to as far as concerns the person bringing the proceedings. (61)
103. Finally, there was no reason to distinguish between an action brought from the outset by only some of the members of the consortium and one initially brought by all those members but in which the application of one of them was subsequently considered inadmissible.
In both cases, admissibility was determined by national rules requiring only that applicants comply with the conditions relating to representation in legal proceedings in accordance with the legal form which the members had themselves chosen.
Such general requirements did not limit the efficacy and availability of review procedures to tenderers in a manner contrary to the Remedies Directive.
Furthermore, the inadmissibility of the application of one of the members of a consortium might be justified by circumstances showing that no intention to bring legal proceedings had been validly established for the member concerned. (62)
104. The Court has also made clear, however, in Consorzio Elisoccorso San Raffaele, (63) that a national rule which does allow members of a consortium to bring proceedings individually is in no way contrary to the Remedies Directive.
Article 1(3) lays down a minimum requirement that the review procedures provided for must be available ‘at least’ to any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement of the applicable law.
A rule allowing individual actions, therefore, far from undermining the aim of the directive, appears likely to help attain it.
105. Consequently, the Simvoulio tis Epikratias is in no way precluded by the Remedies Directive from finding the actions in the main proceedings admissible.
106. The question is rather whether, in the circumstances of those proceedings, the current interpretation of the national legislation, leading to a finding of inadmissibility, (64) falls within the Espace Trianon and Sofibail case-law (in which case the Simvoulio tis Epikratias is not precluded from applying it) or whether the circumstances are so different as to render that interpretation incompatible with the directive.
107. Two differences in particular might be relevant in that regard.
First, in Espace Trianon and Sofibail, the Court took account of the fact that it would have been possible, under Belgian law, for the members of the consortium to agree that it should be represented in proceedings by one of its members.
That possibility does not appear to be available under Greek law, although that is of course a matter for the national court.
Second, it took account of the fact that the rule applied to all actions brought by consortia, whether the claims were founded on a breach of Community law or of national law, or were related to public contracts or to other operations.
In the present cases, however, it appears that the difficulty might not have arisen if the claim had been based on national law. (65)
108. I note moreover that, in her Opinion in Espace Trianon and Sofibail, Advocate General Stix-Hackl considered that the Court’s ruling should be rest ricted to circumstances in which the action seeks annulment of the award made, and that ‘it is perfectly conceivable that as regards a simple declaration of illegality and the availability of damages there might be other obligations under Community law’. (66)
109. Finally, the acts at issue in the present cases are not decisions of the contracting authority awarding or declining to award the contract to a consortium.
They are, rather, decisions of another administrative body, concerning the eligibility of individual consortium members to be awarded a contract, which none the less bind the contracting authority.
110. Taking all those considerations into account, I think the Court would be justified in examining the requirements of the Remedies Directive afresh in the context of the present cases.
111. It is clear that, as a general rule, national law may provide that, where the person having or having had an interest in obtaining a contract is a consortium, a challenge to the decision awarding the contract must be brought by all the members of the consortium acting together ( Espace Trianon and Sofibail ).
Likewise, it may provide that where damages are claimed on the grounds that a decision was taken unlawfully, the contested decision must first be set aside (Article 2(5) of the Remedies Directive).
112. It could therefore be inferred that, where national law makes such provision in both regards, Community law does not preclude the consequence that a claim for damages brought by a single member of a tendering consortium will always be inadmissible.
113. I do not, however, take that view.
114. The Court’s reasoning in Espace Trianon and Sofibail
(and, apparently, that of the Simvoulio tis Epikratias in its revised interpretation of national law) is based on the premiss that an unsuccessful tenderer’s interest in having an award annulled lies in the opportunity of being again able to take part in the procedure as resumed after annulment of an unlawful decision, and that, where the tenderer is a consortium, only the consortium as such can legitimately have that interest.
Individual members, not having submitted a tender in their own name (and often not in a position to do so, or they would not have formed a consortium with others), lack that interest.
115. That premiss, and the conclusions drawn from it, seem entirely justified.
As regards the award of a contract, the members of a consortium must all act together.
United they stand, divided they fall.
Their interests are as inseparable as is the award of the contract.
116. However, that does not necessarily hold true where a claim for damages is concerned.
A decision taken in the course of an award procedure may cause specific harm to one member of a consortium but not to others.
Although it is not clear from the order for reference to what extent that may be so in Case C‑145/08, Case C‑149/08 illustrates such a situation.
The finding of incompatibility concerned Aktor alone among the members of the consortium.
Whilst all those members may have been adversely affected by not being awarded the contract, Aktor was individually stigmatised as a company ineligible for an award.
Even if, as the Greek Government asserted at the hearing, decisions on eligibility are taken afresh in the context of each new procedure, (67) the contested decision is likely to have an adverse effect on Aktor’s acceptability, in the eyes of other undertakings, as a member of future consortia.
117. But even when (as may be the case for Loutraki and its fellow applicants) the harm is spread among the members of the consortium – in proportion, for example, to the loss of opportunity suffered by each of them – individual claims for damages could be dealt with separately.
Provided that the claim is solely for such apportionable damages, and there is no question of annulling the award so that the consortium as a whole can be reinstated in the procedure, it is of no decisive importance whether the action is brought by one, some or all of the members of the consortium.
118. In line with the Court’s statement in Consorzio Elisoccorso San Raffaele, (68) the availability of an individual action in such circumstances would tend to further rather than hinder the Remedies Directive’s aim of ensuring that Member States provide effective remedies and adequate procedures for compensating those harmed by an infringement of Community law. (69)
By contrast, a rule which limits such availability would hinder rather than further that aim.
119. It must also be recalled that, in accordance with consistent case-law, where there are no applicable Community rules, it is for each Member State to lay down detailed procedural rules governing actions for safeguarding rights derived from Community law.
Member States must ensure that those rights are effectively protected, and the procedural rules must be no less favourable than those governing similar domestic actions (in accordance with the principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by Community law (in accordance with the principle of effectiveness). (70)
120. As the Commission has pointed out, it is for the national court to determine whether either of those principles is affected by the domestic rules applicable in the present cases.
To the extent necessary and possible, it must interpret those rules in conformity with Community law, and thus in such a way as to ensure that the two principles are respected.
121. In that regard, it seems that an interpretation and application of the rules in the manner currently envisaged by the Simvoulio tis Epikratias would render it impossible for a member of a consortium to pursue an individual claim for damages.
That right is derived from Article 2(1)(c) of the Remedies Directive and is not, in my view, affected by the circumstance that other members of the same consortium have no individual interest of their own in pursuing such a claim.
122. Moreover, the national court itself points out, in its order for reference, that, as regards the general right under national law to obtain compensation for damage caused by a State or public body, the court hearing the action for damages examines at the same time the legality of the act alleged to have given rise to the damage whereas, in the present context, annulment must be obtained first from a different court.
It thus appears, therefore, that the principles of effectiveness and equivalence would not be respected if an action for damages were not available to the applicants in the main proceedings because different courts have jurisdiction over the two remedies.
123. It has been suggested that the applicants enjoy sufficient judicial protection because they could claim damages against the other consortium members whose inaction has caused the proceedings to be dismissed.
That does not appear to me to be a valid alternative.
It seems both inequitable that compensation for any damage caused by a decision of the ESR should come from partners in the consortium and unlikely that the amount of compensation would be comparable, since the type of damage would be different and would stem from different conduct by different parties.
124. Consequently, I would answer question 3 to the effect that, even if under national law an action for annulment of a decision taken in the course of a procurement procedure is not available to individual members of a tendering consortium, it is necessary, before finding such an action inadmissible, to examine whether those individual members thereafter retain the right to claim damages before another court as a result of an alleged infringement of Community law.
Such a right must remain available to them under conditions which are no less favourable than those governing similar domestic actions (in accordance with the principle of equivalence) and which do not render its exercise practically impossible or excessively difficult (in accordance with the principle of effectiveness).
125. I would add, with regard to Case C‑145/08, that, in so far as the claim for damages is based on an infringement of one of the fundamental rules and principles of the Treaty which apply to the procurement procedure in question, then the right to effective judicial protection and the requirements of the principles of equivalence and effectiveness will still apply, even if the procedure itself is found to fall outside the scope of the Services Directive, and thus of the Remedies Directive.
Question 4
126. This question concerns a situation in which (i) one or more applicants have brought an action against a decision taken in the course of a procurement procedure, (ii) that action was admissible on the basis of settled case-law at the time it was brought and (iii) the court hearing the case has concluded, in a reversal of its previous case-law, that the action is in fact inadmissible.
127. The Simvoulio tis Epikratias wishes to know, essentially, whether in such circumstances the Remedies Directive and the right to a fair hearing require the applicant(s) to be given an opportunity either to cure the defect in admissibility (which does not appear to be possible, under the normal rules, at the current stage of the procedure) or at least to express a view on the issue (which does not appear to have been the case prior to the reversal of the case-law).
128. In the light of my proposed answers to the earlier questions, in particular question 3, that question arises only if it transpires, on a final analysis, that the inadmissibility of an action brought by individual members of a tendering consortium against a decision taken in the course of the procurement procedure does not
deprive those individual members of their right to claim damages before another court as a result of an alleged infringement of Community law and if that right does remain
available to them under conditions which are no less favourable than those governing similar domestic actions and which do not render its exercise practically impossible or excessively difficult.
In other words, it arises only if the new interpretation of the national procedural rules proves to be fully compatible with Community law.
Although that might seem doubtful on the information available, I shall respond to question 4 on the basis that it is so.
129. First, I would agree with Loutraki that, as a general rule, where a court reverses its previous case-law, that reversal must apply in the case in which it is decided (although there are of course situations in which the temporal effects of a ruling of principle may be limited to situations arising after a particular date (71) ).
130. However, the specific issue in the present case is that the reversal appears to have been decided without the parties concerned having had an opportunity even to put their views, still less to correct such procedural defects as have emerged.
131. In the latter regard, the Simvoulio tis Epikratias itself and Aktor both state that, in previous cases where a comparable situation has arisen under national law, that court has consistently cited the principles of legitimate expectation and effective judicial protection in order to give parties the opportunity to cure any defect in admissibility which arises as a result of a reversal of case-law.
If that is so, it seems clear to me that, as Aktor submits, the principle of equivalence requires the same approach to be followed where the procedure seeks to assert a right derived from Community law.
132. In that regard, it does not seem to me necessary to take account, as the Greek Government and a minority of the Simvoulio tis Epikratias suggest, of whether the proceedings were initially brought in conscious reliance on the previous case-law or not – unless that is a factor which is also taken into account in the other situations governed by national law.
133. More generally, I would agree with the Commission’s submission that, here again, the national court must verify that, to the extent that the procedure falls within the scope of Community law, the fundamental principles of that law are observed.
Those principles include legal certainty, legitimate expectation and the right to a fair trial within the meaning of Article 6 of the European Convention of Human Rights.
134. As regards the opportunity to present submissions on a reversal of case-law, the Commission recalls that this Court has noted, in proceedings relating to public procurement, that the European Court of Human Rights has consistently held the adversarial nature of proceedings to be a factor which enables their fairness to be assessed, even if it may be balanced against other rights and interests.
The adversarial principle means, as a rule, that the parties have a right to inspect and comment on evidence and observations submitted to the court. (72)
135. In the present cases, as far as I can ascertain from the documents, the case-law appears to have been reversed at the initiative of the Simvoulio tis Epikratias.
In such circumstances, it seems to me particularly important that the parties should be heard before a case is dismissed on unprecedented procedural grounds.
136. Several parties have pointed out that, at the present stage of the proceedings, which commenced several years ago, and in the interests of procedural efficiency, it may be unnecessary for the Simvoulio tis Epikratias to organise a further opportunity for the parties to be heard, since they have now had such an opportunity before this Court.
In my view, that will be so only if the procedural rules of the Simvoulio tis Epikratias make provision for the arguments advanced before this Court during the reference to be taken fully into account when the matter returns before the national court after this Court has given judgment.
Conclusion
137. In the light of all the above considerations, I propose that the Court should reply as follows to the questions raised by the Simvoulio tis Epikratias.
In answer to the first question in Case C‑145/08:
An award by which a contracting authority entrusts a contractor with the management and commercial exploitation of a casino business (service element) and the contractor undertakes to implement a development plan consisting in the upgrading of the casino premises (works element) may be classed as a service contract for the purposes of the Community public procurement directives if the works element is merely incidental to the service element.
Such an award is, however, to be classed as a service concession, and thus as falling outside the scope of the Services Directive, when the contractor assumes all or at least a significant part of the operating risks incurred by the contracting authority, even if that risk is limited from the outset.
Such classification is not affected by the fact that the contracting authority guarantees compensation in the event of subsequent competition, provided that such a guarantee does not significantly affect the extent of the transfer of risk, as opposed to the degree of risk on the basis of which each potential tenderer will assess his interest in participating and the amount which he is prepared to tender.
None the less, the award of a service concession must comply with the fundamental rules and principles of the EC Treaty.
In answer to the second question in Case C‑145/08:
A legal action brought by persons who have participated in the procedure for the award of a public contract of mixed form providing inter alia for the supply of services subject to Annex I B to the Services Directive, and in which they plead breach of the principle of equal treatment of participants in tender procedures, affirmed by Article 3(2) of that directive, falls within the field of application of the Remedies Directive.
In answer to the third question in Case C‑145/08 and the first question in Case C‑149/08:
Even if under national law an action for annulment of a decision taken in the course of a procurement procedure is not available to individual members of a tendering consortium, it is necessary, before finding such an action inadmissible, to examine whether those individual members thereafter retain the right to claim damages before another court as a result of an alleged infringement of Community law.
Such a right must remain available to them under conditions which are no less favourable than those governing similar domestic actions (in accordance with the principle of equivalence) and which do not render its exercise practically impossible or excessively difficult (in accordance with the principle of effectiveness).
In so far as the claim for damages is based on an infringement of one of the fundamental rules and principles of the Treaty which apply to the procurement procedure in question, then the right to judicial protection and the requirements of the principles of equivalence and effectiveness will still apply, even if the procedure itself is found to fall outside the scope of the Community procurement directives.
In answer to the fourth question in Case C‑145/08 and the second question in Case C‑149/08:
When it has been held by settled case-law of a national court that an individual member of a tendering consortium may bring an action against an act falling within a public procurement procedure, it is not compatible with the general principles of Community law to dismiss such an action as inadmissible because of a change to that settled case-law, unless the person who has brought that action has first been given either the opportunity to cure the inadmissibility or, in any event, to set out his views relating to that issue.
(1) .
(2)  –	Council Directive 89/665/EEC of 21 December 1989 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 (OJ 1989 L 395, p. 33).
(3)  –	Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1).
After the material time in the present cases, this directive was repealed and replaced by 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).
(4)
–	Case C‑129/04 Espace Trianon and Sofibail
[2005] ECR I‑7805.
(5)
–	Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54).
(6)
–	See point 13 below.
(7)
–	Title III is headed ‘Choice of award procedures and rules governing design contests’, Title IV ‘Common rules in the technical field’ and Title V ‘Common advertising rules’, while Title VI covers ‘Common rules on participation’, ‘Criteria for qualitative selection’ and ‘Criteria for the award of contracts’.
(8)
–	I note that this provision is in Title VI and thus appears, formally at least, not to be applicable where the contract is for services listed in Annex I B.
However, the point does not seem relevant in the present context, in so far as there is no suggestion that any specific legal form was required of the consortia concerned, whether such a requirement would have been prohibited by the directive or not.
(9)
–	Since the material time in the present cases, Articles 1 and 2 in particular have been further amended, and further detailed rules introduced, by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (OJ 2007 L 335, p. 31).
(10)
–	This provision is not cited in the order for reference, but the Greek Government has cited the text in its written observations.
(11)
–	It appears that Law 3021/2003 has since been replaced by Law 3310/2005, amended by Law 3414/2005.
Under the new measures, it appears that incompatibility derives from certain criminal convictions rather than from shareholdings.
(12)  –	Case C‑213/07 [2008] ECR I‑0000, especially at paragraph 50 et seq.
That judgment was delivered after the orders for reference had been made in the present cases, and after the written observations had been submitted.
(13)
–	The relevant parts of the contract document are transcribed or summarised in the order for reference.
I do not propose to take account of the partly conflicting version which the Greek Government appeared to put forward at one stage in the procedure.
Such matters are in any event for the national court to determine.
(14)  –	From the Greek Government’s reply to a written question put by the Court, it appears that the successful tenderer paid EUR 110 000 000 for the shares.
(15)
–	I presume, although it is not spelt out in the order for reference, that this refers to the various undertakings relating to the management of the casino, and that the transfer of shares will not be affected.
(16)  –	See point 25 above.
(17)  –	Cited in footnote 4, paragraph 22.
(18)
– Since question 2 is in fact posed as an alternative, I take this to mean:
‘If such an action does fall within the field of application of the Remedies Directive, …’.
(19)
–	It is not disputed that this contract, with an estimated value of EUR 46 700 000, falls fully within the scope of the Works Directive, and thus of the Remedies Directive.
(20)
–	It is curious to note that the person in question appears to be the same as the person in respect of whom Loutraki alleges an incompatibility in the context of its case, but in respect of whom the ESR has confirmed its finding that there was no incompatibility in that case.
(21)
–	See, for example, Case C‑92/00 HI
[2002] ECR I‑5553, paragraph 42, and Case C‑507/03 Commission
v Ireland
[2007] ECR I‑9777, paragraph 26.
See also the Commission interpretative communication on the Community law applicable to contract awards not or not fully subject to the provisions of the Public Procurement Directives (OJ 2006 C 179, p. 2), especially at points 1.1 and 2.3.
(22)
–	Case C‑324/98 Telaustria and Telefonadress
[2000] ECR I‑10745, paragraphs 60 to 62;
Case C‑231/03 Coname
[2005] ECR I‑7287, paragraphs 9 and 16 et seq.;
Case C‑458/03 Parking Brixen
[2005] ECR I‑8585, paragraphs 42 and 61;
Case C‑324/07 Coditel Brabant
[2008] ECR I‑0000, paragraph 25.
(23)
–	For a slightly fuller account, see the Opinion of Advocate General Ruiz-Jarabo Colomer in Case C‑412/04 Commission
v Italy
[2008] ECR I‑619, points 29 to 39 and 70 to 76.
(24)
–	Case C‑3/88 Commission
v Italy
[1989] ECR 4035, paragraphs 17 to 19;
see also, by analogy, the Commission’s Guide to the Community rules on public supply contracts other than in the water, energy, transport and telecommunications sectors (http://ec.europa.eu/internal_market/publicprocurement/docs/guidelines/supply_en.pdf), point 1.5, Identification of contracts.
(25)
–	Case C‑331/92 [1994] ECR I‑1329, especially at paragraph 29.
That judgment appears particularly apposite in relation to the present case, as it concerned a mixed contract combining an undertaking to carry out a series of works, an undertaking to operate a hotel business and a concession for the installation and opening of a gaming establishment.
(26)
–	Case C‑220/05 Auroux and Others
[2007] ECR I‑385, paragraph 37;
Case C‑412/04 Commission
v Italy
[2008] ECR I‑619, paragraph 47.
(27)
–	See Case C‑412/04 Commission
v Italy, cited in footnote 26, especially at paragraphs 50 and 51.
(28)
–	COM(2004) 327 final, points 67 and 68, referred to by Ellaktor in its submissions.
(29)
–	See, for example, Case C‑264/03 Commission
v France
[2005] ECR I‑8831, paragraph 36;
Case C‑382/05 Commission
v Italy
[2007] ECR I‑6657, paragraph 30.
(30)
–	See point 8 above.
(31)
–	See Telaustria, cited in footnote 22, paragraph 43 et seq., in particular paragraph 58;
order in Case C‑358/00 Buchhändler-Vereinigung
[2002] ECR I‑4685, paragraph 28;
Parking Brixen, cited in footnote 22, paragraph 42.
(32)
–	Cited in footnote 5.
(33)
–	Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1).
(34)
–	Cited in footnote 3.
(35)
–	Commission interpretative communication on concessions under Community law (OJ 2000 C 121, p. 2), especially point 2.2.
(36)
–	In particular Case C‑272/91 Commission
v Italy
[1994] ECR I‑1409, Case C‑360/96 Arnhem [1998] ECR I‑6821 and Case C‑108/98 RI.SAN [1999] ECR I‑5219.
(37)
–	Cited in footnote 22, paragraph 41.
(38)
–	Case C‑206/08 [2009] ECR I‑0000 (judgment delivered after the hearing in the present cases).
(39)
–	Directive 2004/17, Article 1(3)(b);
Directive 2004/18, Article 1(4).
(40)
–	Parking Brixen, paragraph 40.
(41)
–	See, for example, Case C‑382/05 Commission
v Italy [2007] ECR I‑6657, paragraph 34, and Case C‑437/07 Commission
v Italy [2008] ECR I‑0000, paragraph 29;
see also the Commission’s interpretative communication, cited in footnote 35.
(42)
–	Cited in footnote 38, paragraph 80 and operative part.
(43)
–	Paragraphs 72 and 73.
(44)
–	Paragraph 74.
(45)
–	Indeed, the very concept is based on risk, even if it is normally far greater for customers than it is for the operator.
(46)
– Or, if the service is predicted to be loss-making, the tender may take the form of a subsidy to be paid by the contracting authority to the service provider.
(Such a subsidy may protect the service provider from an inevitable outright loss, but will still leave him open to the normal fluctuations of business.)
(47)
–	See in particular points 68 and 71 above.
(48)
–	See point 52 and the references in footnote 22 above.
(49)
–	Case C‑507/03, cited in footnote 21, paragraph 25;
see also the 21 st
recital in the preamble to the directive.
(50)
–	Article 1(1) of the Remedies Directive, cited in point 16 above.
(51)
–	Fourth recital in the preamble to the Remedies Directive.
(52)
–	Cited in footnote 22, paragraph 62.
(53)
–	See, for example, Case C‑50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I‑6677, paragraph 39;
most recently, Case C‑12/08 Mono Car Styling
[2009] ECR I‑0000, paragraphs 47 to 49.
(54)
–	See point 3 and footnote 4 above.
(55)
–	See in particular paragraphs 7 and 15 of the judgment.
(56)
–	Paragraphs 13 and 14.
(57)
–	Paragraph 16.
(58)
–	Paragraphs 19 to 21.
The Court contrasted Case C‑230/02 Grossmann Air Service
[2004] ECR I‑1829, paragraph 28, and Case C‑26/03 Stadt Halle and RPL Lochau
[2005] ECR I‑1, paragraph 41.
However, those cases did not concern consortia.
(59)
–	Paragraphs 22 and 23.
(60)
–	Paragraphs 24 and 25.
(61)
–	Paragraph 26.
(62)
–	Paragraphs 27 and 28.
(63)
–	Order in Case C‑492/06 [2007] ECR I‑8189, in particular at paragraphs 20, 21 and 30.
(64)
–	See point 40 above.
(65)
–	See point 41 above.
(66)
–	Points 23 and 24 of the Opinion.
(67)
–	An assertion apparently borne out by the circumstance that the decisions contested in the two sets of national proceedings do not appear to be concordant (see footnote 20 above).
(68)
–	At paragraph 30 of the order (see point 104 above).
(69)
–	As regards the aim itself, see in particular, in addition to the substantive provisions of the directive, the fourth to sixth recitals in the preamble.
As regards the possible harm caused by an infringement of Community law, it must also be borne in mind that the Court has held the irrebuttable presumption applied in the cases in the main proceedings to be incompatible with Community law (see point 21 above) – a factor which may have divergent repercussions in the two sets of proceedings, since in one case what is challenged is a finding of ineligibility in the light of that presumption, whereas in the other it is a failure to find ineligibility.
(70)
–	See, for a recent example, Case C‑268/06 Impact
[2008] ECR I‑2483, paragraphs 44 to 46 and the case-law cited there.
(71)
–	For an overview, see the Opinion of Advocate General Stix-Hackl in Case C‑475/03 Banca Popolare di Cremona
[2006] ECR I‑9373, at point 130 et seq.
(72)
–	See Case C‑450/06 Varec
[2008] ECR I‑581, paragraphs 46 and 47 and the case-law cited there.