ddrg/super_eurlex huggingface dataset:
Case C‑552/13

Grupo Hospitalario Quirón SA

v

Departamento de Sanidad del Gobierno Vasco

and

Instituto de Religiosas Siervas de Jesús de la Caridad

(Request for a preliminary ruling from the

Juzgado de lo Contencioso-Administrativo No 6 de Bilbao)

‛Reference for a preliminary ruling — Public service contracts — Directive 2004/18/EC — Article 23(2) — Management of public health services — Provision of health services under the remit of public hospitals in private establishments — Requirement that the services be provided in a particular municipality’

Summary — Judgment of the Court (Fifth Chamber), 22 October 2015

Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Award of contracts — Public health services contracts — Obligation to provide the services exclusively in establishments situated within the territory of a given municipality — Not permissible — Breach of the principle of free access by tenderers to public procurement procedures

(European Parliament and Council Directive 2004/18, Art. 23(2))

Article 23(2) of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts precludes a requirement expressed as a technical specification in public procurement notices relating to the provision of health services, whereby the medical services that are the subject of the calls for tenders must be provided by private hospital establishments situated exclusively within a given municipality, which is not necessarily that in which the patients concerned by those services reside, where that requirement involves the automatic exclusion of tenderers who cannot provide those services in such an establishment situated within that municipality but who satisfy all the other conditions of those calls for tenders.

The requirement that a hospital establishment must imperatively be situated in a given municipality that is to be the place where the medical services concerned are exclusively to be provided constitutes a territorial constraint on performance, which by its nature is not such as to enable the objective of ensuring the proximity and accessibility of the private support hospital establishment to be achieved, in the interests of patients, their families and the medical personnel who are required to travel to that establishment, while ensuring equal and non-discriminatory access to the contracts in question by all tenderers. That requirement renders those contracts accessible only to those tenderers who can provide the services in question in an establishment situated within the designated municipality. It is therefore contrary to Article 23(2) of Directive 2004/18.

(see paras 28, 32, 33, operative part)
In an appeal, the Court’s jurisdiction is, in principle, confined to an assessment of the findings of law with regard to the submissions discussed at first instance. A ground of appeal that, in essence, introduces a new argument challenging the adequacy of the reasoning of the General Court in the judgment under appeal rather than challenging the correctness of its reasoning is therefore inadmissible.

In a situation where the liability of a parent company is purely derivative of that of its subsidiary and in which no other factor individually reflects the conduct for which the parent company is held liable, the liability of that parent company cannot exceed that of its subsidiary.

As a result, where a parent company and its subsidiary bring applications with the same object against a decision of the Commission attributing the unlawful conduct of the subsidiary to the parent company and imputing liability jointly and severally to both companies, the parent company whose liability is entirely derivative from that of its subsidiary must, in principle, benefit from any reduction in the liability of its subsidiary which has been imputed to it.

(see paras 37-39, 41)
An undertaking which has participated in a single and complex infringement of the competition rules by its own conduct, which fell within the definition of an agreement or concerted practice having an anticompetitive object within the meaning of Article 101(1) TFEU and was intended to help bring about the infringement as a whole, may be responsible also in respect of the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement. That is the position where it is shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk.

Moreover, for the purpose of characterising various instances of conduct as a single and continuous infringement, it is not necessary to ascertain whether they present a link of complementarity, in the sense that each of them is intended to deal with one or more consequences of the normal pattern of competition, and, through interaction, contribute to the attainment of the set of anticompetitive effects desired by those responsible, within the framework of a global plan having a single objective.

In addition, the text of Article 101(1) TFEU refers generally to all agreements and concerted practices which, in either horizontal or vertical relationships, distort competition on the internal market, irrespective of the market on which the parties operate, and only the commercial conduct of one of the parties need be affected by the terms of the arrangements in question.

It follows, first, that an undertaking may infringe the prohibition laid down in Article 101(1) TFEU where the purpose of its conduct, as coordinated with that of other undertakings, is to restrict competition on a particular relevant market, which does not necessarily require that the undertaking itself be active on that market.

It follows, secondly, that the Commission does not make an error when it concludes that there is a single and continuous infringement, on the ground that it considers the undertaking concerned to be (i) liable for its direct participation in the infringement complained of and (ii) liable for its indirect participation in that infringement since it was aware of all the offending conduct planned or implemented by the other cartel members in pursuit of the same objectives or could reasonably have foreseen that conduct and was prepared to take the risk, it not being necessary to establish a link of complementarity between the practices complained of.

(see paras 39, 40, 55, 57, 63)
29

At the outset, it must be noted that it is apparent from paragraph 26 of Polski Trawertyn and from point 63 of the Advocate General’s Opinion on the case which gave rise to that judgment, that the facts which gave rise to that case were unique to it. Thus, the partners of a future company could not, under the applicable national legislation, rely on a right to deduct VAT on investment expenditure which they had incurred, in their personal capacity before the registration and identification of that company for the purposes of VAT, for the purposes of and with the view to commencement of its economic activity, because the contribution of the capital goods at issue was an exempt transaction. The Court, in the light of the facts so described, held that, in a situation such as that at issue in the main proceedings of that case, not only did that national legislation not permit that partnership to exercise the right to deduct VAT paid on the capital goods at issue, but it also prevented the partners who incurred the investment expenditure from exercising that right.
3

The twelfth, thirteenth, nineteenth, twentieth and twenty-fourth recitals in the preamble to Directive 93/13 state: ‘Whereas, however, as they now stand, national laws allow only partial harmonisation to be envisaged; whereas, in particular, only contractual terms which have not been individually negotiated are covered by this Directive; whereas Member States should have the option, with due regard for the [EEC] Treaty, to afford consumers a higher level of protection through national provisions that are more stringent than those of this Directive; Whereas the statutory or regulatory provisions of the Member States which directly or indirectly determine the terms of consumer contracts are presumed not to contain unfair terms; … whereas in that respect the wording “mandatory statutory or regulatory provisions” in Article 1(2) also covers rules which, according to the law, shall apply between the contracting parties provided that no other arrangements have been established; … Whereas, for the purposes of this Directive, assessment of unfair character shall not be made of terms which describe the main subject-matter of the contract nor the quality/price ratio of the goods or services supplied; whereas the main subject-matter of the contract and the price/quality ratio may nevertheless be taken into account in assessing the fairness of other terms; … Whereas contracts should be drafted in plain, intelligible language, the consumer should actually be given an opportunity to examine all the terms … … Whereas the courts or administrative authorities of the Member States must have at their disposal adequate and effective means of preventing the continued application of unfair terms in consumer contracts’.
4

Part One of the CN consists of a number of preliminary provisions. In that part, in Section I, containing general rules, subsection A, ‘General rules for the interpretation of the [CN]’, states: ‘Classification of goods in the [CN] shall be governed by the following principles: 1. The titles of sections, chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the following provisions. 2. … (b) Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3. 3. When, by application of rule 2(b) or for any other reason, goods are prima facie classifiable under two or more headings, classification shall be effected as follows: (a) the heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods; (b) mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, in so far as this criterion is applicable; (c) when goods cannot be classified by reference to 3(a) or (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration. …’
21

The defendant in the main proceedings argues that the SSP is a payment decoupled from the production. Thus, contrary to the claim of the applicants in the main proceedings, the SSP should not be calculated according to current production of sugar beet and granted only to those farmers who still produce sugar beet. The distinction between coupled and decoupled payments is made clear in Regulation No 73/2009. The aim of the reforms of the sugar market initiated in 2006 is to maintain the existing volume of production of sugar beet and not to stimulate its increase. Accordingly, the use of current production data is not necessary. In addition, Article 126 of Regulation No 73/2009 seeks to introduce a payment decoupled from production. Thus, having regard not only to the terms but also to the aim of that provision, the concept of ‘criteria adopted in 2006 and 2007 by the relevant Member States’ encompasses all the methods of allocation and grant of the SSP set out in Article 143ba(1) of Regulation No 1782/2003, that is to say, both the concept of ‘representative period’ and that of ‘objective and non-discriminatory criteria’.
11

Under Article L. 511-1 of the Code de l’entrée et du séjour des étrangers et du droit d’asile (Code on the Entry and Stay of Foreign Nationals and the Right of Asylum), as amended by Law No 2011-672 of 16 June 2011, on immigration, integration and nationality (JORF of 17 June 2011, p. 10290; ‘Ceseda’): ‘I. An administrative authority may oblige a foreign national who is not a national of a Member State of the European Union … and who is not a family member of such a national within the meaning of Article L. 121-1, 4° and 5°, to leave French territory, when that person falls within one of the following situations: … 3° if the foreign national was refused the issue or renewal of a residence permit, or if the residence permit which was issued to him was withdrawn; … 5° if the acknowledgment of an application for a residence card or the temporary residence permit which was issued to the foreign national was withdrawn or if the renewal of those documents was refused. The decision stating the obligation to leave French territory shall contain a statement of reasons. The reasons stated in that decision need not be distinct from those in the decision on the stay in the situations provided for in 3° and 5° above, without prejudice, where appropriate, to the indication of reasons for the application of Sections II and III. The obligation to leave French territory shall fix the country to which the foreign national is to be returned in the event of enforcement. II. A foreign national must comply with the obligation imposed on him to leave French territory within 30 days from the date of its notification and may request, for that purpose, assistance to return to his country of origin. Having regard to the foreign national’s personal circumstances, an administrative authority may exceptionally grant a period for voluntary departure of more than 30 days. However, an administrative authority may, by reasoned decision, decide that the foreign national is obliged to leave French territory without delay: … 3° if there is a risk that the foreign national may evade that obligation. That risk shall be deemed to be established, unless there are special circumstances, in the following situations: … (d) if the foreign national evaded enforcement of a previous removal measure; (e) if the foreign national forged, falsified or created in a name other than his own a residence permit or an identification or travel document; … An administrative authority may apply the second paragraph above where the reason comes to light during the period granted under the first paragraph. …’
10

Mr Blanco has brought several actions against those tax assessments. Those actions were joined because of their connected subject-matter and because Mr Blanco was the applicant in the main proceedings. Mr Blanco believes, firstly, that the information on which the Agenzia relies should be treated with caution in so far as it is from a website which uses only the gross winnings and ignores a number of factors which affect those winnings, such as the practice of ‘stacking’, losses and expenses. Secondly, he claims that the tax assessments infringe, in particular, the principle prohibiting double taxation laid down in international agreements with reference to Article 2 of the Model Tax Convention on Income and on Capital developed by the Organization for Economic Cooperation and Development (OECD), the principle of the freedom to provide services under Article 56 TFEU, the principle of non-discrimination established by Article 21 of the Charter of Fundamental Rights of the European Union, and Articles 18 and 49 TFEU. Mr Blanco alleges discriminatory treatment on the ground that the winnings made in Italy are exempt from the requirement to be declared and do not fall under income tax as they are subject, at source, to the substitute tax on entertainment and on the ground that the winnings made in other Member States, having already been taxed at source in those Member States, should not be taxed in Italy.
18

Article 75b of LR No 41/2006, which concerns ambulance services provides: ‘1. The provision of ambulance services is an activity of public interest based on observance of the principles of universality, the good of the community, economic efficiency and suitability. 2. The ambulance services referred to in paragraph 1 shall be provided by the relevant health agencies and other bodies providing services whether public or treated as such with their own resources and staff. Where that is not possible, ambulance services shall be entrusted to bodies that satisfy the conditions [laid down by various national or regional laws, regulating the voluntary sector, emergency health care and ambulance services] and [which have] equipment and staff appropriate to ensure the requisite service on the basis of the following principles: (a) The ambulance services for which the regional health service are responsible shall be entrusted, on a preferential basis, to voluntary associations, to the Croce Rossa Italiana and to other approved public institutions or bodies, with a view to ensuring that that public service is provided in an economically balanced manner for budgetary purposes. Relations with the Croce Rossa Italiana and the associations shall be governed by agreements complying with the provisions of Article 45 of Law No 833 of 23 December 1978 (instituting the national health service); … (b) Ambulance services may be entrusted to bodies other than those mentioned in subparagraph (a) where the rules in force on public service and public supply contracts are observed. 3. The agreements and protocols referred to in paragraph 2(a) shall provide only, as regards voluntary associations, the Croce Rossa Italiana and the other approved public institutions or bodies, for the reimbursement of expenses actually incurred, according to criteria laid down by the regional council based on the principles of economic efficiency, effectiveness and the absence of any overpayment as regards costs incurred. …’
3

The 2nd, 4th, 10th and 11th recitals in the preamble to Regulation 2078/92 read as follows: ‘… measures to reduce agricultural production in the Community must have a beneficial impact on the environment; … … an appropriate aid scheme would encourage farmers to serve society as a whole by introducing or continuing to use farming practices compatible with the increasing demands of protection of the environment and natural resources and upkeep of the landscape and the countryside; … … because of the scale of the problems such schemes should be applicable to all farmers in the Community who undertake to use farming methods which will protect, maintain or improve the environment and the countryside and to refrain from further intensification of agricultural production; … it appears … appropriate to introduce a scheme for long-term set-aside of agricultural land for environmental reasons and for the protection of natural resources; … the measures provided for in this Regulation must encourage farmers to make undertakings regarding farming methods compatible with the requirements of environmental protection and maintenance of the countryside, and thereby to contribute to balancing the market; … the measures must compensate farmers for any income losses caused by reductions in output and/or increases in costs and for the part they play in improving the environment’.
7

Article 1 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1), as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006 (OJ 2006 L 363, p. 1) (‘Regulation No 659/1999’), entitled ‘Definitions’, provides: ‘For the purpose of this Regulation: (a) “aid” shall mean any measure fulfilling all the criteria laid down in Article [107(1) TFEU]; (b) “existing aid” shall mean: (i) without prejudice to … Annex IV, point 3 and the Appendix to said Annex of the Act of [Accession], …, all aid which existed prior to the entry into force of the Treaty in the respective Member States, that is to say, aid schemes and individual aid which were put into effect before, and are still applicable after, the entry into force of the Treaty; (ii) authorised aid, that is to say, aid schemes and individual aid which have been authorised by the Commission or by the Council; (iii) aid which is deemed to have been authorised pursuant to Article 4(6) of this Regulation or prior to this Regulation but in accordance with this procedure; (iv) aid which is deemed to be existing aid pursuant to Article 15; (v) aid which is deemed to be an existing aid because it can be established that at the time it was put into effect it did not constitute an aid, and subsequently became an aid due to the evolution of the common market and without having been altered by the Member State. Where certain measures become aid following the liberalisation of an activity by Community law, such measures shall not be considered as existing aid after the date fixed for liberalisation; (c) “new aid” shall mean all aid, that is to say, aid schemes and individual aid, which is not existing aid, including alterations to existing aid; (d) “aid scheme” shall mean any act on the basis of which, without further implementing measures being required, individual aid awards may be made to undertakings defined within the act in a general and abstract manner and any act on the basis of which aid which is not linked to a specific project may be awarded to one or several undertakings for an indefinite period of time and/or for an indefinite amount; (e) “individual aid” shall mean aid that is not awarded on the basis of an aid scheme and notifiable awards of aid on the basis of an aid scheme; (f) “unlawful aid” shall mean new aid put into effect in contravention of Article 108(3) TFEU; …’