62015CO0129
ORDER OF THE COURT (Ninth Chamber)
7 July 2016 (
*1
)
‛Reference for a preliminary ruling — Public supply contracts — Directive 2004/18/EC — Article 1(9) — Concept of ‘body governed by public law’ — Hospital set up to make a profit, whose capital is entirely private — Over 50% or 30% of income coming from payments by the public sickness insurance scheme in exchange for the provision of medical services — Article 7(b) — Estimated value of the contract — Threshold not met — Certain cross-border interest — Lack of information — Article 53(2) of the Court’s Rules of Procedure — Manifest inadmissibility’
In Case C‑129/15,
REQUEST for a preliminary ruling under Article 267 TFEU from the Administrativen sad Sofia-grad (Administrative Court of the City of Sofia, Bulgaria), made by decision of 4 March 2015, received at the Court on 16 March 2015, in the proceedings
H.M.
v
Agentsia za darzhavna finansova inspektsia (ADFI),
THE COURT (Ninth Chamber),
composed of C. Lycourgos, President of the Chamber, E. Juhász (Rapporteur) and C. Vajda, Judges,
Advocate General: H. Saugmandsgaard Øe,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 53(2) of the Rules of Procedure of the Court of Justice,
makes the following
Order
1
This request for a preliminary ruling concerns the interpretation of Article 1(9) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114), as amended by Commission Regulation (EU) No 1251/2011 of 30 November 2011 (OJ 2011 L 319, p. 43) (‘Directive 2004/18’).
2
This request was made in the context of proceedings between Mr H.M., the director of a private hospital and Agentsia za darzhavna finansova inspektsia (the State Financial Supervision Agency, Bulgaria), concerning the lawfulness of an administrative penalty imposed upon Mr M. by the Agency.
Legal context
EU law
3
Recital 2 in the preamble to Directive 2004/18 states:
‘The award of contracts concluded in the Member States on behalf of the State, regional or local authorities and other bodies governed by public law entities, is subject to the respect of the principles of the Treaty and in particular to the principle of freedom of movement of goods, the principle of freedom of establishment and the principle of freedom to provide services and to the principles deriving therefrom, such as the principle of equal treatment, the principle of non-discrimination, the principle of mutual recognition, the principle of proportionality and the principle of transparency. However, for public contracts above a certain value, it is advisable to draw up provisions of Community coordination of national procedures for the award of such contracts which are based on these principles so as to ensure the effects of them and to guarantee the opening-up of public procurement to competition. These coordinating provisions should therefore be interpreted in accordance with both the aforementioned rules and principles and other rules of the Treaty.’
4
Article 1 of that directive, entitled ‘Definitions’, provides in paragraph 9:
‘“Contracting authorities” means the State, regional or local authorities, bodies governed by public law, associations formed by one or several of such authorities or one or several of such bodies governed by public law.
A “body governed by public law” means any body:
(a)
established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character;
(b)
having legal personality; and
(c)
financed, for the most part, by the State, regional or local authorities, or other bodies governed by public law; or subject to management supervision by those bodies; or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law.
Non-exhaustive lists of bodies and categories of bodies governed by public law which fulfil the criteria referred to in (a), (b) and (c) of the second subparagraph are set out in Annex III. Member States shall periodically notify the Commission of any changes to their lists of bodies and categories of bodies.’
5
Article 7 of that directive, entitled ‘Threshold amounts for public contracts’, establishes the thresholds for the estimated values beyond which the award of a contract must be made in accordance with the rules in that directive, the threshold relating to supply contracts awarded by contracting authorities other than central government authorities having been set at EUR 200000.
6
Article 9 of that same directive, entitled ‘Methods for calculating the estimated value of public contracts, framework agreements and dynamic purchasing systems’, provides:
‘…
5.   …
(b)
Where a proposal for the acquisition of similar supplies may result in contracts being awarded at the same time in the form of separate lots, account shall be taken of the total estimated value of all such lots when applying Article 7(a) and (b).
Where the aggregate value of the lots is equal to or exceeds the threshold laid down in Article 7, this Directive shall apply to the awarding of each lot.
However, the contracting authorities may waive such application in respect of lots, the estimated value of which, net of VAT, is less than EUR 80000, provided that the aggregate cost of those lots does not exceed 20% of the aggregate value of the lots as a whole.
…
7.   In the case of public supply or service contracts which are regular in nature or which are intended to be renewed within a given period, the calculation of the estimated contract value shall be based on the following:
(a)
either the total actual value of the successive contracts of the same type awarded during the preceding 12 months or financial year adjusted, if possible, to take account of the changes in quantity or value which would occur in the course of the 12 months following the initial contract;
(b)
or the total estimated value of the successive contracts awarded during the 12 months following the first delivery, or during the financial year if that is longer than 12 months.
The choice of method used to calculate the estimated value of a public contract may not be made with the intention of excluding it from the scope of this Directive.
…’
Bulgarian law
7
Article 7(4) of the zakon za obshtestvenite porachki (Law on public procurement, DV No 28 of 6 April 2004) (‘ZOP’), in the version applicable to the facts in the main proceedings, is entitled as follows:
‘Contracting authorities are:
…
3.
Public law bodies.’
8
Article 8(1) of that law provides:
‘Contracting authorities shall conduct a public procurement procedure where the criteria provided for in the law are met;
…
(3)
Where the contracting authority is a collective authority or a legal person, the powers referred to in paragraph (2) shall be implemented by the person who represents that collective authority or legal person.’
9
Paragraph 1, point 21, of the Additional Provisions of the ZOP provides that:
‘A “public law body” is a legal person which, independently of its commercial or industrial character, was created to satisfy needs in the general interest and which meets one of the following conditions:
(а)
Over 50% of its financing comes from the State’s budget, the State’s budgets for social security or the National Sickness Insurance Fund, local budgets or by contracting authorities within the meaning of Article 7(1) or (3);
(b)
over half of the members of its management or supervision board is composed of members appointed by contracting authorities within the meaning of Article 7(1) or (3);
(c)
its management is subject to the control of contracting authorities within the meaning of Article 7(1) or (3); that control exists when a person can in any manner whatsoever exert a decisive influence over the activity of another person.
Healthcare institutions that are commercial companies and more than 30% of whose income for the preceding year comes from the State’s budget, municipal budgets or the budget of the National Sickness Insurance Fund are also public law bodies.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
10
Mr M. is the director of a hospital registered as a commercial company with limited liability, the capital of which is entirely held by a person governed by private law, who is also a trader. In the course of an inspection of the activity of that establishment by an agent of the authority competent for carrying out inspections, it was found, on the basis of invoices issued by several suppliers, that in the period from 10 January 2012 to 19 December 2012 that establishment received deliveries of medical consumables for a total sum of BGN 339052.76 excluding VAT, whereas, throughout the whole of 2012, the hospital in question, which was not registered as a contracting authority in the public procurement register, had not conducted any public procurement procedure. It was also noted that, in the course of 2011, 66.27% of that establishment’s income came from payments made by the National Sickness Insurance Fund, which is a contracting authority within the meaning of the ZOP.
11
The agent who carried out the inspection, considering that the hospital was a body governed by public law body within the meaning of the second sentence of Paragraph 1, point 21(c), of the Additional Provisions of the ZOP, took the view that the director of that hospital had not launched the public procurement procedure, although he was obliged to do so. Therefore, by act of 12 July 2013, that agent determined that there was an administrative breach of the relevant provisions of the ZOP . Following that act, the director was fined the sum of BGN 3000, on the basis of the relevant provision of that law. He brought proceedings against that penalty before the competent court, which dismissed the application. Mr M. then brought an appeal before the referring court.
12
The referring court states that, in substance, the case in the main proceedings concerns the question whether a hospital, whose capital is entirely private and which also receives, amongst other resources, payments from the National Sickness Insurance Fund in consideration for services provided, is a contracting authority. In that respect, it is necessary to determine whether national legislation, such as that in the main proceedings, may introduce criteria in addition to those defined in Article 1(9) of Directive 2004/18, which, if that is the case, would have the effect the widening the category of persons responsible for putting in place public procurement procedures.
13
Regarding the question which is the object of the main proceedings, the referring court notes that the income of the hospital concerned that comes from the National Sickness Insurance Fund and thus amounts to public resources represented, in the course of the accounting year 2011, more than 66% of that establishment’s income. Thus, in accordance with the second sentence of Paragraph 1, point 21(a), of the Additional Provisions of the ZOP, it must be held that, whatever the form of ownership, that hospital is a contracting authority. That conclusion is dictated not only on account of the considerable share of public funds in the hospital’s income, but also because the medical services it provides amount to an activity of general interest.
14
Furthermore, the definition in Article 1(9) of Directive 2004/18 differs considerably from that in the ZOP. Indeed, whereas, according to the criteria laid down in Article 1(9)(a) to (c) of that directive, a body is a body governed by public law when those criteria are met cumulatively, according to the ZOP, any body that meets at least one of the similar criteria is a body governed by public law. In addition, and contrary to the provisions of Directive 2004/18, the fact that a body has a commercial or industrial character does not prevent its being considered to be a body governed by public law, for the purpose of Bulgarian law.
15
In particular, the second sentence of Paragraph 1, point 21(c), of the Additional Provisions of the ZOP is manifestly incompatible with the criteria laid down in Directive 2004/18, given that the wording ‘financed, for the most part, by the State, regional or local authorities, or other bodies governed by public law’ in the second sentence of Article 1(9)(c) of that directive entails financing of more than 50%, which is significantly higher than the 30% threshold laid down in the national law.
16
In light of these considerations, the Administrativen sad Sofia-grad (Administrative Court of the City of Sofia, Bulgaria) decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)
Is Article 1(9) of Directive 2004/18 to be interpreted as meaning that a body/company is a body governed by public law merely because over 30% of its income from its activity in the previous year is derived from medical activities paid for out of the Natsionalna zdravnoosiguritelna kasa (national health insurance fund) and carried out in conditions of effective competition with other medical establishments?
(2)
Is Article 1(9) of Directive 2004/18 to be interpreted as meaning that the provision of medical services in conditions of effective competition by private companies established for profit-making purposes may be regarded as “meeting needs in the general interest”?
(3)
Is Article 1(9) of Directive 2004/18 to be interpreted as precluding Paragraph 1, point 21, of the Additional Provisions of the Law on public procurement [ZOP], according to which it is sufficient, for the purposes of determining that a body is a “body governed by public law”, if just one of the criteria corresponding to the cumulative criteria laid down by that directive is met?’
Consideration of the questions referred
17
Under Article 53(2) of the Rules of Procedure of the Court, where it is clear that the Court has no jurisdiction to hear and determine a case or where a request or an application is manifestly inadmissible, the Court may, after hearing the Advocate General, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.
18
That provision should be applied in the present case.
19
It is settled case-law that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 6 November 2014 in Cartiera dell’ Adda, C‑42/13, EU:C:2014:2345, paragraph 29 and the case-law cited).
20
It must be noted that the special procedures prescribed by EU directives coordinating public procurement procedures apply only to contracts whose value exceeds a threshold expressly laid down in each of those directives. Accordingly, the rules in those directives do not apply to contracts with a value below the threshold set by those directives (judgment of 15 May 2008 in SECAP and Santorso, C‑147/06 and C‑148/06, EU:C:2008:277, paragraph 19).
21
As is apparent from the file submitted to the Court, the private healthcare establishment at issue in the main proceedings is criticised for having been supplied with medical consumables for the total sum of BGN 339052.76 excluding value added tax, without those deliveries being subjected to public procurement procedures.
22
Given that, according to European Central Bank data, the exchange rate of the euro into Bulgarian lev was 1.9558 during that whole period, the aggregate sum of the value of those deliveries amounted to EUR 173357.58. Furthermore, the file submitted to the Court does not include any element relating to the number of those transactions, the value of each of them, or the number of suppliers with which they were entered into.
23
As is apparent from paragraph 5 of the present order, the sum fixed in Article 7(b) of Directive 2004/18 as the threshold for the purposes of the application of that directive to public supply contracts was EUR 200000 over the course of the period at issue in the main proceedings. It follows that, even if the value of all the deliveries made during that period could be taken into account in aggregate, that threshold would not be crossed.
24
At all events, in the case in the main proceedings, cumulative account may, for the purpose of calculating the threshold laid down in Article 7 of Directive 2004/18, be taken of the amounts of the various supplies made only if the conditions laid down in Article 9 of that directive, in particular in paragraph 5(b), and in paragraph 7, are satisfied. The referring court has not communicated any information that could establish that this is the case.
25
Those conditions having not been met, the amount of each of those supplies must be considered separately and individually and, therefore, the value of the various contracts at issue in the main proceedings will necessarily be placed at levels significantly lower than that threshold.
26
Consequently, it must be declared that the rules laid down in Directive 2004/18 are not applicable to the public supply contracts at issue in the main proceedings. Furthermore, it is not expressly made clear in the decision to refer that the relevant provisions of Bulgarian law contain a direct and unconditional reference to the provisions of that directive.
27
Nevertheless, it is important to point out that, in accordance with the Court’s settled case-law, the procurement procedures which, in view of their value, do not fall within the scope of that directive are nonetheless subject to the fundamental rules and the general principles of the FEU Treaty, in particular the principles of equal treatment and of non-discrimination on grounds of nationality and the obligation of transparency deriving therefrom, provided that those procedures have certain cross-border interest (see, to that effect, judgments of 15 May 2008 in SECAP and Santorso, C‑147/06 and C‑148/06, EU:C:2008:277, paragraphs 20 and 21; of 11 December 2014 in Azienda sanitaria locale No 5 ‘Spezzino’ and Others, C‑113/13, EU:C:2014:2440, paragraphs 45 and 46; of 18 December 2014 in Generali-Providencia Biztosító, C‑470/13, EU:C:2014:2469, paragraph 32, as well as of 16 April 2015 in Enterprise Focused Solutions, C‑278/14, EU:C:2015:228, paragraph 16).
28
As regards the objective criteria capable of indicating the existence of certain cross-border interest, the Court has previously held that such criteria could be, inter alia, that the contract in question is for a significant amount, in conjunction with the place where the work is to be carried out or the technical characteristics of the contract and the specific characteristics of the goods concerned. The referring court may, in its overall assessment of the existence of certain cross-border interest, also take account of the existence of complaints brought by operators situated in other Member States, provided that it is determined that those complaints are real and not fictitious (see to that effect, judgments of 15 May 2008 in SECAP and Santorso, C‑147/06 and C‑148/06, EU:C:2008:277, paragraph 31, and of 16 April 2015 in Enterprise Focused Solutions, C‑278/14, EU:C:2015:228, paragraph 20 and the case-law cited).
29
It must be noted that, in its request for a preliminary ruling, the referring court did not submit any element enabling the Court to have available to it any information regarding the existence, in the case in the main proceedings, of certain cross-border interest. It must be borne in mind that, as is clear from Article 94 of the Rules of Procedure, the Court must be able to find in a request for a preliminary ruling a summary of the facts on which the questions are based and the connection, in particular, between those facts and the questions. Therefore, the findings necessary to verify the existence of 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 and primary legislation of the European Union depends, must be made before the questions are referred to the Court (see judgment of 11 December 2014 in Azienda sanitaria locale No 5 Spezzino and Others, C‑113/13, EU:C:2014:2440, paragraph 47, as well as of 16 April 2015 in Enterprise Focused Solutions, C‑278/14, EU:C:2015:228, paragraph 18).
30
Admittedly, there are cases in which the Court, without any express information provided in that regard by the referring court, can infer from the information in the order for reference the existence of certain cross-border interest (see to that effect judgments of 11 December 2014 in Azienda sanitaria locale No 5 Spezzino and Others, C‑113/13, EU:C:2014:2440, paragraph 48, as well as of 16 April 2015 in Enterprise Focused Solutions, C‑278/14, EU:C:2015:228, paragraph 19). However, in the present case, for want of any information of that kind in the order for reference, the Court considers that it cannot make such an inference.
31
In those circumstances, the Court finds itself unable to give a helpful answer to the questions raised by the referring court in order to resolve the case before it, which is the objective of the cooperation established by Article 267 TFEU.
32
It follows that, pursuant to Article 53(2) of the Rules of Procedure, the request for a preliminary ruling must be declared manifestly inadmissible.
Costs
33
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.
On those grounds, the Court (Ninth Chamber) hereby orders:
The request for a preliminary ruling made by Administrativen sad Sofiagrad (Administrative Court of the City of Sofia, Bulgaria), by decision of 4 March 2015, is manifestly inadmissible.
[Signatures]
(
*1
)	Language of the case: Bulgarian.