Consorci Sanitari del Maresme v Corporació de Salut del Maresme i la Selva.
Date: 2015-10-06
17. As regards, first, 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, the Court will 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 (see, inter alia, judgments in Vaassen-Göbbels , 61/65, EU:C:1966:39, and Umweltanwalt von Kärnten , C‑205/08, EU:C:2009:767, paragraph 35 and the case-law cited). Thus, even though, as the order for reference indicates, the Tribunal Català de Contractes del Sector Públic is regarded under Spanish law as an administrative body, that fact is not, in itself, conclusive for the purpose of the Court’s assessment.
19. So far as (ii) the criterion of independence is concerned, it is apparent from the documents before the Court that the Tribunal Català de Contractes del Sector Públic acts as a third party in relation to the authority which adopted the decision challenged in the main proceedings (see judgments in Corbiau , C‑24/92, EU:C:1993:118, paragraph 15, and Wilson , C‑506/04, EU:C:2006:587, paragraph 49). 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 (see judgment in Torresi , C‑58/13 and C‑59/13, EU:C:2014:2088, paragraph 22); it is thus protected against external intervention or pressure liable to jeopardise the independent judgment of its members (judgments in Wilson , C‑506/04, EU:C:2006:587, paragraph 51, and TDC , C‑222/13, EU:2014:2265, paragraph 30).
20. Nor is it disputed that the Tribunal Català de Contractes del Sector Públic complies, when performing its duties, with the requirement for objectivity and impartiality vis-à-vis the parties to the proceedings and their respective interests with regard to the subject-matter of those proceedings. Furthermore, under Article 8(4) of Decree 221/2013 of the Generalitat de Catalunya, the members of the Tribunal are appointed on a permanent basis and cease to hold office only in the circumstances expressly set out in Article 8 (see judgments in Wilson , C‑506/04, EU:C:2006:587, paragraphs 52 and 53, and TDC , C‑222/13, EU:2014:2265, paragraphs 31 and 32).
23. In this regard, it must nevertheless be observed that the decisions of the referring body, whose jurisdiction does not depend on the parties’ agreement, are binding on the parties (see order in Merck Canada , C‑555/13, EU:C:2014:92, paragraph 18 and the case-law cited; and judgment in Ascendi Beiras Litoral e Alta, Auto Estradas das Beiras Litoral e Alta , C‑377/13, EU:C:2014:1754, paragraph 28).
24. Moreover, the Spanish Government explained at the hearing that, 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 a special appeal of the kind in the main proceedings before the Tribunal Català de Contractes del Sector Públic. Essentially, the administrative courts are thus, as a general rule, involved at second instance, with the result that, in the Autonomous Community of Catalonia, primary responsibility for ensuring that EU public procurement law is observed lies with the referring body.
25. In those circumstances, the Tribunal Català de Contractes del Sector Públic also satisfies the criterion of compulsory jurisdiction.
26. Finally, it should be recalled that the Court, in assessing the legal status of the national bodies mentioned in Article 2(9) of Directive 89/665, which are responsible for reviewing the award of public contracts, has already confirmed the status as a ‘court or tribunal’ of a number of other national bodies that are in essence comparable to the referring body in the present case (see, inter alia, Dorsch Consult , C‑54/96, EU:C:1997:413, paragraphs 22 to 38; Köllensperger and Atzwanger , C‑103/97, EU:C:1999:52, paragraphs 16 to 25; and Bundesdruckerei , C‑549/13, EU:C:2014:2235, paragraph 22 and the case-law cited).
29. So far as this point is concerned, it must be recalled that 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 (judgments in Caixa d’Estalvis i Pensions de Barcelona , C‑139/12, EU:C:2014:174, paragraph 41, and Wojciechowski , C‑408/14, EU:C:2015:591, paragraph 26; see, also, orders in Parva Investitsionna Banka and Others , C‑488/13, EU:C:2014:2191, paragraph 26, and De Bellis and Others , C‑246/14, EU:C:2014:2291, paragraph 14).
30. However, the fact that the requirement for classification at issue in the main proceedings does not apply to undertakings established in Member States other than the Kingdom of Spain does not affect the Court’s jurisdiction. The Court has already held that nothing in Directives 89/665 and 2004/18 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, to that effect, judgment in Michaniki , C‑213/07, EU:C:2008:731, paragraph 29).
34. Moreover, the Court has held that any person or entity 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 judgments in CoNISMa , C‑305/08, EU:C:2009:807, paragraph 42, and, to that effect, Data Medical Service , C‑568/13, EU:C:2014:2466, paragraph 35).
35. If and to the extent that certain entities are authorised to offer services in return for remuneration on the market, even occasionally, the Member States may not prevent those entities from participating in tendering procedures for the award of public contracts relating to the provision of those services (see, to that effect, judgments in CoNISMa , C‑305/08, EU:C:2009:807, paragraphs 47 to 49; Ordine degli Ingegneri della Provincia di Lecce and Others , C‑159/11, EU:C:2012:817, paragraph 27; see also, to that effect, with regard to the corresponding provisions of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1), judgment in Data Medical Service , C‑568/13, EU:C:2014:2466, paragraph 36).
43. In that regard, it must be recalled that, according to settled case-law, it is not for the Court, in preliminary ruling proceedings, to rule upon the compatibility of provisions of national law with EU law or to interpret national legislation or regulations (see, inter alia, Ascafor and Asidac , C‑484/10, EU:C:2012:113, paragraph 33 and the case-law cited).