Case C‑203/14

Consorci Sanitari del Maresme

v

Corporació de Salut del Maresme i la Selva

(Request for a preliminary ruling from the Tribunal Català de Contractes del Sector Públic)

‛Reference for a preliminary ruling — Article 267 TFEU — Jurisdiction of the Court — Status of the referring body as a court or tribunal — Independence — Compulsory jurisdiction — Directive 89/665/EEC — Article 2 — Bodies responsible for review procedures — Directive 2004/18/EC — Articles 1(8) and 52 — Public procurement procedures — Meaning of ‘public entity’ — Public authorities — Inclusion’

Summary — Judgment of the Court (Grand Chamber), 6 October 2015

Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Establishment by the Member States of official lists of approved undertakings or of certification procedures — National legislation not permitting public authorities to be registered on those lists or to obtain certification, whilst making participation in a tendering procedure conditional upon such registration or certification — Not permissible

As regards the assessment of whether a body making a reference is a court or tribunal within the meaning of Article 267 TFEU, which is a question governed by EU law alone, it is necessary to take account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent. In that regard, even if the referring body is regarded under national law as an administrative body, that fact is not, in itself, conclusive for the purpose of that assessment. The Tribunal Català de Contractes del Sector Públic (Catalan Public Sector Contracts Board) satisfies those criteria and therefore has the status of a court or tribunal within the meaning of Article 267 TFEU. So far as the criterion of independence is concerned, the Tribunal acts as a third party in relation to the authority which adopted the decision challenged in the main proceedings. In that regard, it would appear that the Tribunal carries out its functions in a wholly independent manner, not occupying a hierarchical or subordinate position in relation to any other body and not taking orders or instructions from any source whatsoever; it is thus protected against external intervention or pressure liable to jeopardise the independent judgment of its members. As regards whether the jurisdiction of the Tribunal Català de Contractes del Sector Públic is compulsory, although, under national law, its jurisdiction is optional, it must nevertheless be borne in mind that the decisions of the referring body, whose jurisdiction does not depend on the parties’ agreement, are binding on the parties. Moreover, in practice, tenderers in public procurement procedures do not generally avail themselves of the possibility of directly initiating an administrative-law action, without having first brought the matter before the Tribunal Català de Contractes del Sector Públic. In those circumstances the Tribunal also satisfies the criterion of compulsory jurisdiction. (see paras 17, 19, 22-25, 27)

The Court does not, in principle, have jurisdiction to reply to a question referred for a preliminary ruling where it is obvious that the rule of EU law referred to it for interpretation is incapable of applying. As regards a request for interpretation in respect of a requirement laid down by national public procurement law, the fact that the requirement does not apply to undertakings established in Member States other than the Member State of the referring court does not affect the Court’s jurisdiction. Nothing in Directive 89/665 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, or in Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, permits the inference that their applicability is dependent on the existence of an actual link with free movement between Member States. Those directives do not make the applicability of their provisions to procedures for the award of public contracts contingent on any condition relating to the nationality or the place of establishment of the tenderers. (see paras 29, 30)

Article 1(8) of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as meaning that the term ‘economic operator’ in the second subparagraph of that provision encompasses public authorities, which may therefore participate in public tendering procedures if and to the extent that they are authorised to offer certain services in return for remuneration on a market. It follows both from recital 4 in the preamble to Directive 2004/18, which explicitly mentions the possibility of a body governed by public law participating as a tenderer in a procedure for the award of a public contract, and from Article 1(8) of the directive, which specifically acknowledges that any public entity may have the status of economic operator, that Directive 2004/18 does not prevent public authorities from participating in tendering procedures. In that regard, any person which, in the light of the conditions laid down in a contract notice, believes that it is capable of carrying out the contract, either directly or by using subcontractors, is eligible to submit a tender or put itself forward as a candidate, regardless of whether it is governed by public law or private law, whether it is consistently active on the market or only on an occasional basis and whether or not it is subsidised by public funds. (see paras 33, 34, 36, operative part 1)

Article 52 of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted to the effect that — although it includes certain requirements with regard to the determination of the conditions for registration of economic operators on the national official lists and for certification — it does not exhaustively define (i) the conditions for registration of those economic operators on the national official lists or the conditions for their certification or (ii) the rights and obligations of public entities in that respect. In all events, Directive 2004/18 must be interpreted as precluding national rules under which, on the one hand, national public authorities that are authorised to offer the works, products or services covered by the contract notice concerned may not be registered on those lists, or may not obtain certification, while, on the other hand, the right to participate in the tendering procedure concerned is afforded only to operators which are included on those lists or which have obtained certification. (see para. 41, operative part 2)