OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 3 October 2018 ( 1 )

Case C‑216/17

Autorità Garante della Concorrenza e del Mercato — Antitrust,

Coopservice Soc. coop. arl

v

Azienda Socio-Sanitaria Territoriale della Valcamonica — Sebino (ASST),

Azienda Socio-Sanitaria Territoriale del Garda (ASST),

Azienda Socio-Sanitaria Territoriale della Valcamonica (ASST)

Third parties:

Markas Srl,

ATI — Zanetti Arturo & C. Srl e in proprio,

Regione Lombardia

(Request for a preliminary ruling from the Consiglio di Stato (Council of State, Italy))

(Reference for a preliminary ruling — Public works contracts, public supply contracts and public service contracts — Directive 2004/18/EC — Framework agreements — Extension clause)

1. The Consiglio di Stato (Council of State, Italy) once again seeks a preliminary ruling from the Court of Justice on the interpretation of Directive 2004/18/EC. ( 2 ) On this occasion, the referring court’s uncertainties concern whether a public health body acting as a contracting authority was, in 2015, entitled to award a contract for the provision of certain services directly to the successful tenderer with which another similar public body had previously (in 2011) concluded a similar contract, which the referring court describes as a framework agreement for the purposes of that directive.

2. The referring court also asks whether, in those same circumstances, it is mandatory for the framework agreement to state the quantity of services that contracting authorities may require when concluding subsequent contracts and, if so, whether that information may be provided by reference to their ‘usual requirements’.

I. Legislative framework

A. EU law: Directive 2004/18

3. Recitals 11, 15 and 36 of Directive 2004/18 state: ‘(11) A Community definition of framework agreements, together with specific rules on framework agreements concluded for contracts falling within the scope of this Directive, should be provided. Under these rules, when a contracting authority enters into a framework agreement in accordance with the provisions of this Directive relating, in particular, to advertising, time limits and conditions for the submission of tenders, it may enter into contracts based on such a framework agreement during its term of validity either by applying the terms set forth in the framework agreement or, if all terms have not been fixed in advance in the framework agreement, by reopening competition between the parties to the framework agreement in relation to those terms. The reopening of competition should comply with certain rules the aim of which is to guarantee the required flexibility and to guarantee respect for the general principles, in particular the principle of equal treatment. For the same reasons, the term of the framework agreements should not exceed four years, except in cases duly justified by the contracting authorities. … (15) Certain centralised purchasing techniques have been developed in Member States. Several contracting authorities are responsible for making acquisitions or awarding public contracts/framework agreements for other contracting authorities. In view of the large volumes purchased, those techniques help increase competition and streamline public purchasing. Provision should therefore be made for a Community definition of central purchasing bodies dedicated to contracting authorities. A definition should also be given of the conditions under which, in accordance with the principles of non-discrimination and equal treatment, contracting authorities purchasing works, supplies and/or services through a central purchasing body may be deemed to have complied with this Directive. … (36) To ensure development of effective competition in the field of public contracts, it is necessary that contract notices drawn up by the contracting authorities of Member States be advertised throughout the Community. The information contained in these notices must enable economic operators in the Community to determine whether the proposed contracts are of interest to them. For this purpose, it is appropriate to give them adequate information on the object of the contract and the conditions attached thereto …’

4. In accordance with Article 1(5) of Directive 2004/18: ‘A “framework agreement” is an agreement between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the terms governing contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantity envisaged.’

5. Article 2 of Directive 2004/18 provides: ‘Contracting authorities shall treat economic operators equally and non-discriminatorily and shall act in a transparent way.’

6. Article 9 of Directive 2004/18 provides: ‘1. The calculation of the estimated value of a public contract shall be based on the total amount payable, net of VAT, as estimated by the contracting authority. This calculation shall take account of the estimated total amount, including any form of option and any renewals of the contract. … 3. No works project or proposed purchase of a certain quantity of supplies and/or services may be subdivided to prevent its coming within the scope of this Directive. … 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. … 9. With regard to framework agreements and dynamic purchasing systems, the value to be taken into consideration shall be the maximum estimated value net of VAT of all the contracts envisaged for the total term of the framework agreement or the dynamic purchasing system.’

7. Article 32 of Directive 2004/18 states: ‘1. Member States may provide that contracting authorities may conclude framework agreements. 2. For the purpose of concluding a framework agreement, contracting authorities shall follow the rules of procedure referred to in this Directive for all phases up to the award of contracts based on that framework agreement. The parties to the framework agreement shall be chosen by applying the award criteria set in accordance with Article 53. Contracts based on a framework agreement shall be awarded in accordance with the procedures laid down in paragraphs 3 and 4. Those procedures may be applied only between the contracting authorities and the economic operators originally party to the framework agreement. When awarding contracts based on a framework agreement, the parties may under no circumstances make substantial amendments to the terms laid down in that framework agreement, in particular in the case referred to in paragraph 3. The term of a framework agreement may not exceed four years, save in exceptional cases duly justified, in particular by the subject of the framework agreement. Contracting authorities may not use framework agreements improperly or in such a way as to prevent, restrict or distort competition. 3. Where a framework agreement is concluded with a single economic operator, contracts based on that agreement shall be awarded within the limits of the terms laid down in the framework agreement. For the award of those contracts, contracting authorities may consult the operator party to the framework agreement in writing, requesting it to supplement its tender as necessary. 4. Where a framework agreement is concluded with several economic operators, the latter must be at least three in number, insofar as there is a sufficient number of economic operators to satisfy the selection criteria and/or of admissible tenders which meet the award criteria. Contracts based on framework agreements concluded with several economic operators may be awarded either: – by application of the terms laid down in the framework agreement without reopening competition, or – where not all the terms are laid down in the framework agreement, when the parties are again in competition on the basis of the same and, if necessary, more precisely formulated terms, and, where appropriate, other terms referred to in the specifications of the framework agreement, in accordance with the following procedure: (a) for every contract to be awarded, contracting authorities shall consult in writing the economic operators capable of performing the contract; (b) contracting authorities shall fix a time limit which is sufficiently long to allow tenders for each specific contract to be submitted, taking into account factors such as the complexity of the subject-matter of the contract and the time needed to send in tenders; (c) tenders shall be submitted in writing, and their content shall remain confidential until the stipulated time limit for reply has expired; (d) contracting authorities shall award each contract to the tenderer who has submitted the best tender on the basis of the award criteria set out in the specifications of the framework agreement.’

8. Article 35 of Directive 2004/18 is worded as follows: ‘… 2. Contracting authorities which wish to award a public contract or a framework agreement by open, restricted or, under the conditions laid down in Article 30, negotiated procedure with the publication of a contract notice or, under the conditions laid down in Article 29, a competitive dialogue, shall make known their intention by means of a contract notice. … 4. Contracting authorities which have awarded a public contract or concluded a framework agreement shall send a notice of the results of the award procedure no later than 48 days after the award of the contract or the conclusion of the framework agreement. In the case of framework agreements concluded in accordance with Article 32 the contracting authorities are not bound to send a notice of the results of the award procedure for each contract based on that agreement. …’

9. Pursuant to Article 36(1) of Directive 2004/18: ‘Notices shall include the information mentioned in Annex VII A and, where appropriate, any other information deemed useful by the contracting authority in the format of standard forms adopted by the Commission in accordance with the procedure referred to in Article 77(2).’

10. Annex VII A governs ‘Information which must be included in public contract notices’, in the following terms: ‘… Contract notices … 3. ... (c) Where appropriate, indicate whether a framework agreement is involved. … 6. ... (c) Public service contracts. – Category and description of service. Nomenclature reference number(s). Quantity of services to be provided. Indicate in particular options concerning supplementary purchases and, if known, the provisional timetable for recourse to these options as well as the number of renewals, if any. In the case of renewable contracts over a given period, an estimate of the time frame, if known, for subsequent public contracts for purchase of intended services, in the event of a framework agreement, indication also of the planned duration of the framework agreement, the estimated total value of the services for the entire duration of the framework agreement and, as far as possible, the value and the frequency of the contracts to be awarded, … 18. Where there is a framework agreement: the number and, where appropriate, proposed maximum number of economic operators who will be members of it, the duration of the framework agreement provided for, stating, if appropriate, the reasons for any duration exceeding four years. …’

B. Italian law

11. The decreto legislativo n. 163 — Codice dei contratti pubblici relativi a lavori, servizi e forniture (Legislative Decree No 163 establishing the code of public works contracts, public service contracts and public supply contracts) of 12 April 2006, ( 3 ) which was in force at the material time, transposed Directive 2004/18 into Italian law. Article 3(13) thereof defines ‘framework agreement’ in the same terms as Article 1(5) of Directive 2004/18.

12. Article 59 of that legislative decree reproduces Article 32 of Directive 2004/18, but it does not provide that the term of a framework agreement may not exceed four years, save in exceptional cases. Nor does it expressly prohibit contracting authorities from using framework agreements improperly or in such a way as to prevent, restrict or distort competition.

13. The last part of Article 1(449) of legge n. 296 — Disposizioni per la formazione del bilancio annuale e pluriennale dello Stato (Law 296 — laying down provisions for drawing up the annual and pluriannual budget of the State) of 27 December 2006 ( 4 ) requires the bodies of the Servizio Sanitario Nazionale (National Health Service; ‘SSN’) to make purchases through central purchasing bodies.

14. Article 1(12) of Decreto legislativo n. 95 — Disposizioni urgenti per la revisione della spesa pubblica con invarianza dei servizi ai cittadini (Legislative Decree No 95 — Urgent provisions for reviewing public spending while maintaining services for citizens) of 6 July 2012 ( 5 ) allows, without the launching of a new tendering procedure and in order to make savings, subsequent amendments which improves the contract terms laid down in the initial tendering procedure.

15. Article 15(13)(b) of Decree-Law No 95 of 2012 provides for the rescission of a contract for the supply of goods or the provision of services which has become too onerous, and for the conclusion, without the need for a new tendering procedure, of a new contract the terms of which are the same as those contained in an ongoing contract with other undertakings.

II. Facts

16. Aziende socio sanitarie territoriali (local health and social care bodies; ‘ASSTs’) are regional public bodies which ensure that citizens receive assistance under the SSN. It is common ground that they qualify as contracting authorities within the meaning of Directive 2004/18.

17. For reasons relating to the adjustment of the budgetary balance and as a measure aimed at containing costs, the Italian legislature made it compulsory for SSN bodies, except in very limited circumstances, to purchase goods and services as a group through central purchasing bodies.

18. Against that background, following a restricted procedure, the ASST di Desenzano del Garda (which was subsequently taken over by the ASST del Garda), by Decree No 828 of 4 November 2011, awarded an ad hoc tendering consortium, consisting of Markas Srl and Zanetti Arturo & C. Srl, a contract for environmental sanitation, collection and disposal of waste services. ( 6 ) The contract term was 108 months, starting on 1 December 2011.

19. The ASST di Desenzano del Garda included in the tender specifications for that contract a clause entitled ‘Extension of the contract’, ( 7 ) which provided for the possibility of ‘subsequent accession’ by certain specified ASSTs which had previously concluded an agreement ( 8 ) for group purchasing of goods and services.

20. That clause, in point 2.5 of the special tender specifications (Annex 3), stipulated as follows: – ‘Entities identified as successful tenderers may be requested to extend the contract to one or more undertakings’ listed at the end of the clause; – the duration of the extension is to be equal to the remaining duration of the contractual period established by the original tendering procedure; – every ASST is entitled to a single accession during the contractual period ‘on the same conditions as the award in question’; – however, the successful tenderer is not obliged to accept the request for extension. If it does accept the request, it will result in ‘an independent contractual relationship’, distinct from the relationship relating to the original award.

21. The contract listed by name 18 ‘aziende ospedaliere/sanitarie’ (hospitals and health centres) which were entitled to rely on the extension clause. These included the Azienda Sanitaria Locale della Valcamonica — Sebino (now called Azienda Socio-Sanitaria Territoriale della Valcamonica (ASST)), which is a respondent in the main proceedings.

22. By Decision No 1158 of 30 December 2015, the ASST della Valcamonica exercised the option to accede to a contract provided for in the clause described, in respect of the period from 1 February 2016 to 15 February 2021. Consequently, it concluded for that period a contract for the provision of sanitation services with Markas, without carrying out a further tendering procedure in addition to that initially carried out by the ASST di Desenzano del Garda.

23. Two actions were brought before the Tribunale amministrativo regionale per la Lombardia (Regional Administrative Court, Lombardy, Italy) against that decision by the operator which had provided the services until then, Coopservice Soc. coop. arl (‘Coopservice’), and by the Autorità garante della concorrenza e del mercato (Competition and Markets Authority; ‘AGCM’), respectively.

24. The first-instance court dismissed both actions and the applicants appealed against those decisions to the Consiglio di Stato (Council of State), which has made the reference for a preliminary ruling.

III. Questions referred

25. The following questions have been submitted by the referring court: ‘(1) Must Article [1](5) [ ( 9 )] and Article 32 of Directive 2004/18 and Article 33 of Directive 2014/24 [ ( 10 )] be interpreted as allowing the conclusion of a framework agreement in which: – a contracting authority acts on its own behalf and on behalf of other contracting authorities specifically indicated, which are not, however, direct parties to the framework agreement; – the quantity of services that may be required by the non-signatory contracting authorities when they enter into the subsequent contracts envisaged in the framework agreement itself is not determined? (2) If the answer to question 1 should be in the negative: Must Article [1](5) [ ( 11 )] and Article 32 of Directive 2004/18 and Article 33 of Directive 2014/24 be interpreted as allowing the conclusion of a framework agreement in which: – a contracting authority acts on its own behalf and on behalf of other contracting authorities specifically indicated, which are not, however, direct parties to the framework agreement; – the quantity of services that may be required by the non-signatory contracting authorities when they enter into the subsequent contracts envisaged in the framework agreement itself is determined by reference to their usual requirements?’

IV. Procedure before the Court and summary of the parties’ submissions

26. The reference for a preliminary ruling was received at the Registry of the Court of Justice on 24 April 2017. Written observations were lodged by Coopservice, Markas, the Italian, Czech, Austrian and Finnish Governments and the European Commission.

27. The hearing, held on 12 July 2018, was attended by Markas, the Italian Government and the Commission.

28. Coopservice points out, first, that the Consiglio di Stato (Council of State) annulled the extension clause at issue in an action brought in relation to another award made under that clause (by the ASST Carlo Poma).

29. Coopservice submits that the reference for a preliminary ruling is inadmissible because: (a) the alleged framework agreement exceeds, without justification, the period of four years stipulated in Article 32 of Directive 2004/18; (b) the clause at issue has already been annulled by the referring court; and (c) there are no other statutory conditions which would enable an award procedure of the kind at issue in the main proceedings to be classified as a framework agreement.

30. In the alternative, Coopservice proposes that the two questions referred should be answered in the negative because, it argues, not only is the quantity of services not determined but the conditions for finding that there is a framework agreement are not met either.

31. Markas questions the relevance of the first question, arguing that it is inaccurate to state that the ASSTs which relied on the extension clause did not participate in the formation stage of the framework agreement. That agreement is the result of concerted action from the outset.

32. At all events, Markas contends that the first question should be answered in the affirmative. A procurement procedure involving an extension clause is a form of contract entailing a subsequent grouping together, which has many similarities to central purchasing. Both are protracted procedures involving a stage in which the contractor is selected by a single contracting entity which acts as a (potentially) broader contracting authority, and a subsequent accession stage which is open to other entities. The only difference, which in Markas’ submission is irrelevant, is that the central purchasing body only acts as such but does not itself use the services it purchases under the framework agreement.

33. As regards the second question, Markas submits that it is not obligatory to determine exact quantities in advance; those quantities may vary depending on the entities’ specific requirements. In this case, it is sufficient that the ASST del Garda indicated the value of the contract intended to cover its own requirements without having also to include the value of possible subsequent accessions.

34. The Italian Government, which does not accept that the case concerns a framework agreement within the meaning of Article 32 of Directive 2004/18, contends that the reference for a preliminary ruling is inadmissible. In the alternative, it maintains that the first question should be answered in the negative, since the fact that there is nothing which would enable the subject matter of subsequent services (in other words, services which may be required through the conclusion of subsequent implementation agreements) to be determined is not compatible with the framework agreement model.

35. The Italian Government submits that the second question should also be answered in the negative. It argues, like the Czech and Austrian governments, that the general reference to the ‘requirements’ of contracting authorities is insufficient in view of the vagueness of the term and because it entails an ‘evolving concept’ linked to the temporal context of the case.

36. The Austrian Government proposes that the two questions be examined together. In its submission, the conditions for the existence of a framework agreement set out in Directives 2004/18 and 2014/24 are not fulfilled. Even if it were accepted that such an agreement exists, for the purpose of EU law, the conduct at issue in this case would, nevertheless, be unlawful.

37. The unlawfulness flows from the fact that, first, the parties were not identified from the outset, as both directives require. Since a tenderer is entitled to refuse the accession of other contracting authorities, there is no mutually binding contractual relationship with all the entities benefiting under the extension clause. Second, it is alleged that the method used by the ASST del Garda and by the ASSTs which relied on that clause deprives of any substance the provisions relating to the calculation of the estimated value of the contracts and framework agreement.

38. The Czech Government maintains that EU law precludes a framework agreement to which the contracting authorities entitled to benefit thereunder, pursuant to an extension clause like that at issue, are not parties from the outset. The Czech Government contends, moreover, that it is essential that the substance of the service to be provided is established, at least in outline, during the procedure which led to the conclusion of the framework agreement. That is the only way of enabling potential tenderers to identify whether the contract is of interest to them and of making it possible to determine the estimated value of the contract, which is dependent on the maximum estimated value of all the contracts envisaged throughout the total term of the framework agreement.

39. The Finnish Government argues, in relation to the first question, that Directive 2004/18 permits a framework agreement under which: (a) a contracting authority acts on its own behalf and on behalf of other contracting authorities which are specifically mentioned but which are not directly parties to that framework agreement; and (b) the quantity of services which may be required by the non-signatory contracting authorities when they enter into the subsequent contracts provided for by the framework agreement is not determined. However, the entire term of that framework agreement must have been specified in accordance with the requirements of the directive and the various subsequent contracts entered into must not exceed that term overall.

40. As regards the second question, the Finnish Government argues that, in many cases, it is possible to establish, for supplies and services, a particular quantity by reference to the usual requirements of the contracting authorities. It is sufficient that the contracting authority uses as a reference the volume of purchases in previous years, adjusted, where appropriate, by an estimate of possible fluctuations in quantity. That information should be included in the tender documents, for, otherwise, former contractors would be placed at an advantage. If that is not the case, the Finnish Government submits that the question should be answered in the negative.

41. The Commission points out that Directive 2014/24 is inapplicable ratione temporis, before going on to observe also that the framework agreement at issue exceeds the period of four years laid down in Directive 2004/18. Since the questions submitted by the referring court do not relate to that point and it is not possible to ascertain whether it has been addressed in the main proceedings, the Commission does not formally submit that the reference for a preliminary ruling should be ruled inadmissible.

42. As regards the substance, the Commission states that the second subparagraph of Article 32(2) of Directive 2004/18 does not provide that contracting authorities who were ‘originally’ parties to the agreement must have signed it. It will be enough if those authorities are referred to as potential beneficiaries under the agreement from the date of its conclusion, and an explicit reference in the tender documents or the specifications will suffice.

43. As far as the quantity of services is concerned, the Commission submits that the phrase ‘where appropriate’ (Article 1(5) of Directive 2004/18) does not imply that this is an optional matter. The intention is to make clear that, for certain subsequent contracts, it might be impossible to state the quantities to be provided, as would occur with the supply of spare parts for vehicles used for municipal transport services. That is not the case with regard to services such as those at issue in the present case, where the total quantity of the services should be expressly indicated in the framework agreement or the tender specifications, even if it is not possible to show the specific value of each subsequent contract. Thus, ‘usual requirements’ may be an acceptable criterion provided that these are defined with sufficient clarity, precision and transparency.

V. Analysis

A. Preliminary observation: the relevant directive for the purpose of the reference for a preliminary ruling

44. Although the questions refer to both Directive 2004/18 and Directive 2014/24, I agree with the Commission that it is not necessary to provide an interpretation of Directive 2014/24 because it is inapplicable ratione temporis, and that it is only necessary to interpret Directive 2004/18.

45. According to the information in the order for reference, both the original award of the contract (decree of 4 November 2011) and the accession of the contract (decree of 30 December 2015) took place before the period for transposition of Directive 2014/24 had expired, that is, before 18 April 2016.

B. Admissibility of the reference for a preliminary ruling

46. One of the grounds put forward by Coopservice in support of its argument that the reference for a preliminary ruling is inadmissible is that the initial contract exceeds the period of four years laid down in the fourth subparagraph of Article 32(2) of Directive 2004/18, ( 12 ) which means that it does not qualify as a ‘framework agreement’ within the meaning of that directive. The Commission, without formally proposing that the reference for a preliminary ruling should be ruled inadmissible, also draws attention to that fact.

47. When asked by the Court of Justice to explain the reasons why, despite having been entered into for a period of nine years, that contract may be classified as a framework agreement within the meaning of Article 1(5) of Directive 2004/18, the Consiglio di Stato (Council of State) stated that the parties concerned did not invoke the term of the agreement as a possible ground for annulment. In accordance with the principle that the subject matter of an action is defined by the parties, on which its jurisdiction is based, the referring court states that it is not even entitled to examine that issue of its own motion because it is not a sufficiently serious irregularity for a finding that the agreement is null and void. ( 13 ) The referring court takes the view that the fact that Article 32 of Directive 2004/18 allows a term of more than four years in exceptional circumstances shows that failure to observe that term is not an invalidating defect. ( 14 )

48. In any event, the referring court maintains that, ‘bearing in mind its particular purpose, which is to ensure the proper functioning of a number of hospitals, the agreement at issue could be covered by that exception’. ( 15 )

49. It is settled case-law that the Court may refuse to give a ruling on a question referred by a national court only where it is quite obvious that the interpretation, or the determination of validity, of a rule of EU law that is sought bears no relation to the 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. ( 16 )

50. In fact, both Coopservice’s plea relating to the term of the initial contract and the plea relating to failure to comply with other conditions necessary for classification as a ‘framework agreement’ — raised also by the Italian and Austrian Governments — contend that the referring court was incorrect in so classifying the agreement.

51. The Consiglio di Stato (Council of State) has not referred to the Court any questions concerning the legal nature of the contract awarded in 2011. Furthermore, given that it takes it as given that that contract constitutes a framework agreement within the meaning of Article 1(5) of Directive 2004/18, the referring court’s doubts are confined to whether, under that directive, it was actually possible for the agreement to be concluded under the circumstances concerned (without the signatures of all the contracting authorities and without a precise determination of the quantity of services which non-signatories may subsequently require).

52. I, like the Commission, believe that the reply to the questions referred must be confined to those two specific issues and that it is for the referring court, as the court adjudicating on the facts and primary interpreter of the applicable law, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to be able to decide the case before it and the relevance of the questions which it submits to the Court. ( 17 )

53. In this case, those questions are based on the premiss that, in principle, there was a framework agreement within the meaning of Directive 2004/18. That is clearly the interpretation of the referring court, in the light of the facts of the dispute.

54. It should be noted, however, that doubt could be cast on that premiss during the main proceedings if, following appropriate discussion instigated by the parties or as a result of a reconsideration by the referring court, of its own motion, of its original conclusion, ( 18 ) the referring court were to find that the agreement concerned raises difficulties as regards its compatibility with Directive 2004/18 other than those which led that court to initiate the present preliminary-ruling proceedings.

55. The third plea of inadmissibility put forward by Coopservice (the referring court already annulled in other proceedings the clause enabling accession) cannot be upheld either. Only the national court seised of the main proceedings can assess whether that annulment took place and, if so, what effect it may have on the proceedings in which it has decided to make the present reference for a preliminary ruling.

C. Substance

56. The two questions referred by the Consiglio di Stato (Council of State) are based on the premiss that there is a ‘framework agreement under which a contracting authority may act on its own behalf and on behalf of other contracting authorities specifically indicated, which do not, however, play a direct part in the conclusion of that framework agreement’.

57. Since the referring court’s uncertainties do not extend to that issue, I shall refrain from setting out my reservations about whether the formula used in the November 2011 contract genuinely satisfies the definition of a framework agreement within the meaning of Directive 2004/18.

58. In any event, I must make clear that, should the Consiglio di Stato (Council of State) persist with its classification, it will have to establish whether, as a result of its specific features, the effect of that framework agreement is to ‘prevent, restrict or distort competition’ (Article 32(2) of Directive 2004/18). ( 19 )

59. The premiss is, therefore, that there was an initial framework agreement and that contracting authorities which, although mentioned in that agreement, did not play a direct part in the conclusion of that agreement, are active ‘parties’ to it. That raises the difficulty of whether Article 1(5) and Article 32 of Directive 2004/18 permit the conclusion of a framework agreement without the signatures of all the contracting authorities which later seek to rely on its provisions.

60. The substance of the second parts of each of the two questions is also the same, in that they relate to the determination of ‘the quantity of services that may be required by the non-signatory contracting authorities when they enter into the subsequent contracts envisaged in the framework agreement itself’. Two questions are asked: – first, whether it is possible under Directive 2004/18 for that quantity not to be determined at all; – second, whether the quantity can be specified by reference to the ‘usual requirements’ of the non-signatory contracting authorities.

1. Extension of the contract to a contracting authority which did not sign the framework agreement

61. In accordance with the second subparagraph of Article 32(2) of Directive 2004/18, contracts based on a framework agreement must be awarded in accordance with certain procedures (laid down in paragraphs 3 and 4 of that article) which ‘may be applied only between the contracting authorities and the economic operators originally party to the framework agreement.’

62. It could be argued that, grammatically speaking, given its position in the sentence, the adverb ‘originally’ refers only to economic operators and not to contracting authorities. A number of reasons militate in favour of that interpretation, the most relevant of which is, perhaps, its subsequent confirmation by the corresponding article of Directive 2014/24. ( 20 )

63. In any event, whatever the interpretation of the second subparagraph of Article 32(2) of Directive 2004/18 may be, considered in isolation, I believe that contracting authorities which occupy an active position in a framework agreement must also be a party to that agreement. By its very nature, a ‘framework agreement’ is, according to Article 1(5) of Directive 2004/18, an agreement concluded ‘between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the terms governing contracts to be awarded’.

64. A separate matter is whether that status can be attributed only to a contracting authority which has played a direct part in the conclusion of the framework agreement or also to a contracting authority which, while not playing ‘a direct part in the conclusion’ of that agreement, is specifically indicated in it. That is the uncertainty with which the first question is concerned.

65. There is no reason why the status of party to a framework agreement should mean that a party that has that status must have signed the agreement or even have played a direct part in its conclusion. As the Consiglio di Stato (Council of State) points out, ( 21 ) the provisions of civil law governing representation and negotiorum gestio permit a person (in this case, an ASST) to conclude a binding agreement on behalf of others where those others have entrusted that person with this task or ratify it a posteriori.

66. To my mind, when it refers to ‘other contracting authorities which are not … direct parties to the framework agreement’, the referring court is not alluding to the signing of the agreement in the sense of formally signing a legal act but rather to the ‘conclusion’ of an agreement in whose formation they are directly involved and to which they are therefore a party.

67. However, the status of party may be acquired without having to sign the framework agreement or even having been directly involved in its conclusion: it will suffice if a party seeking that status has agreed to be bound by the terms and conditions of that agreement. ( 22 )

68. The decisive point is that contracting authorities other than the contracting authority which signed the framework agreement should be identified as ‘potential beneficiaries’ ( 23 ) at the time when the agreement was entered into and were aware of its contents. If the conclusion of the framework agreement is preceded by a collective decision, in which a number of contracting authorities agree to make group purchases of certain goods or services, that prior collective decision can be used as the basis for a framework agreement signed by just one of those authorities on behalf (or with the consent) of them all.

69. There is a relationship of continuity and dependence between a framework agreement in the strict sense and the subsequent contracts concluded on the basis of the terms laid down therein. Those contracts are not concluded ex novo or in a vacuum but rather in accordance with the conditions laid down in the framework agreement, which must of necessity comply with the requirements of Directive 2004/18. Being made subject to those requirements is a necessary condition for the lawfulness of the subsequent contracts, in so far as they are compatible with the EU public procurement legislation.

70. The close relationship between a framework agreement and the contracts concluded pursuant to that agreement means that the authorities which award those contracts must be those indicated in the framework agreement, even if they have not signed that agreement themselves. In my view, that is the most appropriate interpretation of the second subparagraph of Article 32(2) of Directive 2004/18.

71. In summary, it is important, therefore, that the framework agreement stipulate, exhaustively, which contracting authorities are entitled to accede to public contracts concluded thereunder. While that stipulation must, in all cases, be clear and precise, there is no reason why it must be included in the text of the framework agreement itself and, instead, it may be included in one of the clauses of the tender specifications, like the clause in the specifications at issue in the main proceedings.

72. Therefore, I propose that the first question be answered to the effect that Article 1(5) and the second subparagraph of Article 32(2) of Directive 2004/18 do not preclude a framework agreement under which a contracting authority which did not play a direct part in the conclusion of that agreement and was not a signatory to it may accede to contracts based on the agreement, provided that that contracting authority is identified in the framework agreement itself or in a document incorporated into the tender specifications, in accordance with the requirements of Directive 2004/18.

2. The indication of the quantity of services that may be required by contracting authorities which were not signatories to the framework agreement

73. The referring court seeks to ascertain whether it is compatible with Directive 2004/18 for a framework agreement not to state ‘the quantity of services’ that may be required by the non-signatory contracting authorities when they enter into subsequent contracts based on the framework agreement.

74. Pursuant to Article 1(5) of Directive 2004/18, the terms governing contracts to be awarded during the (limited) term of a framework agreement include those relating ‘to price and, where appropriate, the quantity envisaged.’

75. In my view, the use of the phrase ‘where appropriate’ does not mean that of the ‘quantity envisaged’ is an optional matter. It is, on the contrary, a mandatory requirement, albeit subject to the degree of precision with which the volume of services can be anticipated in the framework agreement, having regards to the nature of the services with which the subsequent contracts will be concerned.

76. Any other interpretation would suggest that the original terms of the framework agreement are excessively vague as regards one of its most important elements, with a twofold negative effect: first, it would discourage the involvement of potentially interested economic operators who, owing to the lack of a precise definition of the subject matter of the contract, would refrain from participating in the procedure; second, the prohibition on inserting in the contracts awarded ‘substantial amendments to the terms laid down in [the] framework agreement’ (third subparagraph of Article 32(2) of Directive 2004/18) would be ineffective.

77. Paragraph 6(c) of Annex VII A to Directive 2004/18, to which Article 36(1) of the directive refers, sets out the information to be included in contract notices prior to the award of a framework agreement. In particular, it is necessary to include ‘the estimated total value of the services for the entire duration of the framework agreement ( 24 ) and, as far as possible, the value and the frequency of the contracts to be awarded’.

78. Therefore, the framework agreement must indicate the total value of all the services required. It must include an estimated value of the subsequent contracts by which the different parts into which all the services required are split will be awarded individually in succession. That, I repeat, is the only way of implementing the principles of transparency and equal treatment of the operators interested in participating in the framework agreement and the contracts derived therefrom. If the indication of the (estimated) total quantity of services is not included or the bases for calculating those services are hypothetical, it will be difficult for candidates to assess whether it is worth their while taking part in the tendering procedure. ( 25 )

79. In my submission, the words ‘as far as possible’ are not intended to provide for an exception to compliance with that obligation. If that obligation were disregarded, it would not be possible to calculate, by aggregation, the total value of the services required for the whole duration of the framework agreement. That expression does, however, allow a certain amount of flexibility when it comes to specifying the number of contracts into which it is foreseeable that the totality of the services covered by the framework agreement will be split; in other words, by anticipating the ‘frequency’ with which contracts will be awarded, which will depend on the quantity of services with which each contract will be concerned.

80. The Consiglio di Stato (Council of State) also asks whether it is possible to calculate the quantity of services to be provided under subsequent contracts by reference to the ‘usual requirements’ of the contracting authorities.

81. In my view, which is shared by the Finnish Government and the Commission, there is nothing to preclude the use of that reference, provided that those requirements are defined clearly and precisely in the framework agreement itself or in the relevant tender specifications. The wording used must include terms which are accessible to all potential interested parties.

82. In that connection, ‘usual requirements’ may be those which can be assumed taking into account the quantities purchased in previous years. However, requirements which, without that historical basis, arise unexpectedly during the term of the framework agreement are not usual requirements. Otherwise, there would be scope for vagueness, which is not compatible with the principles of equal treatment, non-discrimination and transparency laid down in Article 2 of Directive 2004/18.

83. In accordance with those principles, the (mandatory) information about the value of the services must be equally accessible to all economic operators, if not in exact terms then at least approximately. If the value of those services is estimated in relation to the requirements which the contracting authority has had to meet in the past, the information which establishes the (actual and certain) value of those historical requirements must be indicated, together with such updates and corrections as may be necessary (as an estimated value), in the documents incorporated into the framework agreement. Otherwise, I repeat, the ‘usual requirements’ will actually be a mystery to all economic operators apart from the operator who was awarded previous contracts for the same services.

84. Accordingly, I suggest that Articles 1(5) and 32 of Directive 2004/18 should be interpreted as not precluding the quantity of services that may be required by a contracting authority which did not play a part in the conclusion of a framework agreement and did not sign that agreement but has unquestionably been a party to that agreement from the outset being determined by reference to its usual requirements, provided that these can be ascertained from clear, precise and transparent information concerning requirements which the contracting authority has had to meet in the past.

VI. Conclusion

85. In the light of the foregoing considerations, I propose that the Court reply as follows to the Consiglio di Stato (Council of State, Italy): Articles 1(5) and 32 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 must be interpreted as: – not precluding a framework agreement under which a contracting authority which was not a direct party to the conclusion of that agreement and was not a signatory to it may be a party to the public contracts based on that agreement, provided that that contracting authority is identified in the framework agreement itself or in a document incorporated into the tender specifications, as required by Directive 2004/18; – precluding a situation where the quantity of services that may be required by that contracting authority, when concluding the subsequent contracts provided for in the framework agreement, is not determined in that agreement or cannot be determined unambiguously; – not precluding the quantity of those services being determined by reference to the contracting authority’s usual requirements, provided that the framework agreement provides clear, precise and transparent information concerning the requirements which that contracting authority has had to meet in the past.

( 1 ) Original language: Spanish.

( 2 ) Directive 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).

( 3 ) GURI No 100 of 2 May 2006.

( 4 ) GURI No 299 of 27 December 2006.

( 5 ) GURI No 156 of 6 July 2012, now Law No 135 of 7 August 2012 (GURI No 189 of 14 August 2012).

( 6 ) The award criterion was the most economically advantageous tender.

( 7 ) The clause stated that it was based on the agreement for ‘activating procedures for group purchasing’, in accordance with the principles enshrined in the Lombardy Regional Health and Social Care Plan 2002-2004, ‘which advocate group purchasing arrangements between bodies forming part of the regional health scheme’, and with the corresponding agreements of the Lombardy Regional Council. The clause also referred, without citing them, to subsequent agreements of the Lombardy Regional Council which ‘placed an emphasis on open tendering procedures that provided for subsequent accessions’.

( 8 ) The ASST del Garda and the ASST della Valcamonica, among others, were members of the AIPEL Consortium (East Lombardy), which was created as a result of the ‘Accordo interaziendale tra le aziende ospedaliere e le aziende sanitarie locali (AIPEL) [...] per la disciplina delle forme aggregate riguardanti la fornitura di beni e l’appalto di servizi’.

( 9 ) The order for reference cites Article 2, undoubtedly in error.

( 10 ) Directive of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65).

( 11 ) See footnote 9.

( 12 )

( 13 ) Paragraph 27 of the Order of 20 February 2018, made by the Consiglio di Stato (Council of State) in response to the Court’s question.

( 14 ) Ibid., paragraph 28.

( 15 ) Ibid.

( 16 ) In that connection, see, inter alia, judgments of 16 June 2015, Gauweiler and Others (C‑62/14, EU:C:2015:400, paragraphs 24 and 25); of 4 May 2016, Pillbox 38 (C‑477/14, EU:C:2016:324, paragraphs 15 and 16); of 5 July 2016, Ognyanov (C‑614/14, EU:C:2016:514, paragraph 19); of 15 November 2016, Ullens de Schooten (C‑268/15, EU:C:2016:874, paragraph 54); and of 28 March 2017, Rosneft (C‑72/15, EU:C:2017:236, paragraphs 50 and 155).

( 17 ) See, inter alia, judgment of 26 June 2007, Ordre des barreaux francophones et germanophone and Others (C‑305/05, EU:C:2007:383, paragraph 18).

( 18 ) The order of 20 February 2018 appears to dismiss that option. However, it will be sufficient if the Court refers in its judgment to the time limit laid down in the fourth subparagraph of Article 32(2) of Directive 2004/18 in order for the Consiglio di Stato (Council of State) to perhaps reconsider its initial reluctance to examine the effect of that factor on the proceedings; clearly, it must do so in accordance with the requirements and procedural guarantees laid down in national law.

( 19 ) That is the view of the AGCOM, which argues that clause 2.5 of the original contract and the accession to that contract of the ASST della Valcamonica — Sebino infringe the principles of ‘fair competition and impartiality’, preventing ‘transparent competition’.

( 20 ) In accordance with Article 33(2) of Directive 2014/24, ‘[c]ontracts based on a framework agreement shall be awarded in accordance with the procedures laid down in this paragraph and in paragraphs 3 and 4. Those procedures may be applied only between those contracting authorities clearly identified for this purpose in the call for competition or the invitation to confirm interest and those economic operators party to the framework agreement as concluded’ (emphasis added).

( 21 ) Paragraphs 7 and 8 of the order for reference.

( 22 ) It is clear that such consent must have been given prior formal expression in some way and that, for that purpose, the signature of those who have consented will, ultimately, be essential. However, there is no reason why they must be signatories of the agreement in which the status of party is acquired; they need only be signatories of the legal act expressing that consent, to which the framework agreement must refer and make an integral part of its contents.

( 23 ) I am using the expression used by the Commission in paragraph 37 of its written observations.

( 24 ) The duration of the framework agreement is, therefore, one of the key factors for determining the total value of the services, as an essential element of the call for tenders. That is why, in establishing whether a framework agreement can be said to exist in the instant case, the referring court must take that into account, which may give it grounds for assessing whether there was compliance with the fourth subparagraph of Article 32(2) of Directive 2004/18 or whether the contracting authorities duly explained in the agreement itself the objective reasons for extending the four-year term. It could therefore be argued that, as they had discussed how to determine the quantities required, the parties themselves indirectly raised the issue of the duration of the framework agreement, without which it is not possible to estimate the total value of those quantities.

( 25 ) That uncertainty increases in circumstances like those in the present case because the extension clause of the framework agreement permits ASSTs, on an optional basis, to decide whether or not to accede, during the term of the agreement, to the original contract; it also allows the original contractor to refuse a subsequent request for accession made by the ASSTs mentioned.