Oftalma Hospital Srl v Commissione Istituti Ospitalieri Valdesi (CIOV) and Regione Piemonte.
Date: 2018-04-19
33


In that regard, the Court has held that, where contracts concern services referred to in Annex I B, the contracting authorities are bound only by the obligations to define the technical specifications by reference to national standards implementing European standards, which must be given in the general or contractual documents relating to each contract, and to send a notice of the results of the award procedure for those contracts to the Publications Office of the European Union (judgment of 17 March 2011, Strong Segurança, C‑95/10, EU:C:2011:161, paragraph 34).
34


The Court has also held that the classification of services in Annexes I A and I B to Directive 92/50 is in accordance with the system laid down by that directive, which envisages the application of the provisions of that directive on two levels (judgment of 17 March 2011, Strong Segurança, C‑95/10, EU:C:2011:161, paragraph 33 and the case-law cited).
35


The Court has stated that the EU legislature assumed that contracts for the services referred to in Annex I B to Directive 92/50 are, in principle, in the light of their specific nature, not of sufficient cross-border interest to justify their award being subject to the conclusion of a tendering procedure intended to enable undertakings from other Member States to examine the contract notice and submit a tender (judgment of 17 March 2011, Strong Segurança, C‑95/10, EU:C:2011:161, paragraph 35 and the case-law cited).
36


However, the Court has held that such contracts, where they nevertheless have a certain cross-border interest, are subject to the fundamental rules and general principles of the FEU Treaty, in particular the principles of equal treatment and non-discrimination on grounds of nationality and the consequent obligation of transparency (see, to that effect, judgment of 17 March 2011, Strong Segurança, C‑95/10, EU:C:2011:161, paragraph 35 and the case-law cited). Without necessarily requiring that an invitation to tender be launched, that obligation implies a degree of advertising sufficient to ensure, first, the opening-up to competition and, second, the review of the impartiality of the procurement procedure (judgment of 13 November 2008, Coditel Brabant, C‑324/07, EU:C:2008:621, paragraph 25 and the case-law cited).
37


In the absence of special circumstances, none of which are apparent from the case file, the assessment of whether there is certain cross-border interest must be carried out, for reasons of legal certainty, on the date of the award of the public contract at issue (see, by analogy, judgment of 10 November 2005,Commission v Austria, C‑29/04, EU:C:2005:670, paragraph 38). In that regard, the fact that, in the main proceedings, the contract was subsequently amended by a supplementary agreement is not capable of altering the date on which it must be determined whether there was such an interest, where such a supplementary agreement is not of a nature substantially to alter the general scheme of the contract at issue, which remains, however, a matter for the referring court to verify.
39


In that regard, it must be pointed out that, in the course of that assessment, a conclusion that there is certain cross-border interest cannot be inferred hypothetically from certain factors which, considered in the abstract, could constitute evidence to that effect, but must be the positive outcome of a specific assessment of the circumstances of the contract at issue in the main proceedings. This means that it cannot be held that certain cross-border interest is established on the basis of factors that do not rule out its existence, but that such an interest must be considered as having been established when its cross-border nature is proved on the basis of objective and consistent factors (see, to that effect, judgment of 6 October 2016, Tecnoedi Costruzioni, C‑318/15, EU:C:2016:747, paragraph 22).
40


The Court has previously held that the value of the contract at issue, in conjunction with the place where the work is to be carried out or the technical nature of the contract and the specific characteristics of the goods concerned, could constitute objective criteria capable of indicating the existence of certain cross-border interest. In that context, it is also possible to take account of the fact that complaints have been made by operators situated in Member States other than that of the contracting authority, provided that it is established that those complaints are real and not fictitious (judgment of 6 October 2016, Tecnoedi Costruzioni, C‑318/15, EU:C:2016:747, paragraph 20 and the case-law cited). Moreover, the fact that, at the time of the award of the contract at issue in the main proceedings, similar health care services may previously have been provided by entities established in other Member States may also be taken into account.
41


However, it must be noted that, as regards, more particularly, health care services, the Court has held, in an action for failure to fulfil obligations, that certain cross-border interest was not established solely on the basis of the fact that the contracts at issue were of significant economic value (see, to that effect, judgment of 29 April 2010, Commission v Germany, C‑160/08, EU:C:2010:230, paragraphs 18, 54 and 123).
43


In the event that it is nevertheless established that there was certain cross-border interest and, consequently, a lack of transparency could have given rise to a difference in treatment to the detriment of undertakings situated in a Member State other than that of the contracting authority, such a difference in treatment may be justified by objective circumstances (see, to that effect, judgment of 11 December 2014, Azienda sanitaria locale n. 5 'Spezzino' and Others, C‑113/13, EU:C:2014:2440, paragraph 52 and the case-law cited).
54


Further, adopting an interpretation that, where there is certain cross-border interest, Article 27(3) of Directive 92/50 would apply in a case such as the one in the main proceedings, could lead to other provisions of that directive that are applicable only to the services referred to in Annex I A to that directive being applied to service contracts under Annex I B, which would risk rendering entirely ineffective the distinction drawn between the services referred to in Annex I A and those in Annex I B to the directive (see, to that effect, with regard to Annexes II A and II B of Directive 2004/18, which correspond to Annexes I A and I B of Directive 92/50, judgment of 17 March 2011, Strong Segurança, C‑95/10, EU:C:2011:161, paragraph 42).
57


It should be recalled in this connection that it is only exceptionally that, in application of a general principle of legal certainty which is inherent in the EU legal order, the Court may decide to restrict the right to rely upon a provision, which it has interpreted, with a view to calling in question legal relations established in good faith. Such a restriction may, according to the Court’s settled case-law, be allowed only in the actual judgment ruling upon the interpretation sought (judgment of 17 July 2008, Krawczyński, C‑426/07, EU:C:2008:434, paragraphs 42 and 43).