Case C-384/21: Request for a preliminary ruling from the Conseil d’État (Belgium) lodged on 24 June 2021 — Municipality of Farciennes v Société wallonne du logement
Date: 2021-06-24
Institutions: Court of Justice
Subjects: board of directors, cooperative, decision-making, direct applicability, housing, legal person, managing director, municipality, public procurement, public sector, shareholder








C_2021357EN.01001201.xml










6.9.2021   


EN


Official Journal of the European Union


C 357/12






Request for a preliminary ruling from the Conseil d’État (Belgium) lodged on 24 June 2021 — Municipality of Farciennes v Société wallonne du logement
(Case C-384/21)
(2021/C 357/15)
Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings


Applicant: Municipality of Farciennes

Defendant: Société wallonne du logement

Questions referred







1.


Must Article 12(3) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014, (1) as amended by Commission Delegated Regulation (EU) 2015/2170 of 24 November 2015 (2) on public procurement and repealing Directive 2004/18/EC to be interpreted as having direct effect?










2.


If the answer to the first question is in the affirmative, must Article 12(3) of Directive 2014/24/EU be interpreted as meaning that the requirement for a contracting authority, in this case a public service housing company, to be represented on the decision-making bodies of the controlled legal person, in this case an inter-municipal cooperative society, is satisfied solely on the basis that a person who sits on the board of directors of that inter-municipal cooperative society in his or her capacity as a municipal councillor of another participating contracting authority, in this case a municipality, is, due to purely factual circumstances and without any legal guarantee of representation, also a director of the public service housing company, while the municipality is a (non-exclusive) shareholder in both the controlled entity (inter-municipal cooperative society) and the public service housing company?










3.


If the answer to the first question is negative, must it be considered that a contracting authority, in this case a public service housing company, ‘participates’ in the decision-making bodies of the controlled legal person, in this case an inter-municipal cooperative society, solely on the basis that a person who sits on the board of directors of that inter-municipal cooperative society in his or her capacity as a municipal councillor of another participating contracting authority, in this case a municipality, is, due to purely factual circumstances and without any legal guarantee of representation, also a director of the public service housing company, while the municipality is a (non-exclusive) shareholder in both the controlled entity (inter-municipal cooperative society) and the public service housing company?










4.


Must Article 12(4) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014, as amended by Commission Delegated Regulation (EU) 2015/2170 of 24 November 2015 on public procurement and repealing Directive 2004/18/EC, be interpreted as having direct effect?










5.


If the answer to that question is in the affirmative, must Article 12(4) of Directive 2014/24/EU be interpreted as meaning that it allows tasks of project management assistance and legal and environmental services to be entrusted, without a prior call for competition, to a contracting authority, in this case an inter-municipal cooperative society, where those tasks form part of a cooperation between two other contracting authorities, in this case a municipality and a public service housing company, where it is not disputed that the municipality exercises ‘joint in-house’ control over the inter-municipal cooperative society and where the municipality and the public service housing company are members of the inter-municipal cooperative society in the ‘consultancy and management and central purchasing’ sector of its object, which is specifically concerned with the tasks they wish to entrust to it, which tasks correspond to activities carried out on the market by consultancy and management firms specialising in the design, execution and implementation of projects?






(1)  Directive 2014/24/EU 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).

(2)  Commission Delegated Regulation (EU) 2015/2170 of 24 November 2015 amending Directive 2014/24/EU of the European Parliament and of the Council in respect of the application thresholds for the procedures for the award of contracts (OJ 2015 L 307, p. 5).