European Commission v Republic of Austria.
Date: 2018-03-20
75


In that regard, it should be noted that, as the Republic of Austria argues, it is for the Member States to define their essential security interests and, in the present case, for the Austrian authorities to define the security measures necessary for the protection of the public security of that Member State in the context of the printing of identity documents and other official documents such as those at issue in the present case (see, by analogy, judgment of 16 October 2003, Commission v Belgium, C‑252/01, EU:C:2003:547, paragraph 30).
76


Nevertheless, it should also be noted that, as the Court has previously held, measures adopted by the Member States in connection with the legitimate requirements of national interest are not excluded in their entirety from the application of EU law solely because they are taken, inter alia, in the interests of public security (see, to that effect, judgment of 8 April 2008, Commission v Italy, C‑337/05, EU:C:2008:203, paragraph 42 and the case-law cited).
77


Moreover, the derogations at issue in the present action must, in accordance with the settled case-law relating to derogations from fundamental freedoms, be interpreted strictly (see, by analogy, as regards Article 346(1)(b) TFEU, judgment of 7 June 2012, Insinööritoimisto InsTiimi, C‑615/10, EU:C:2012:324, paragraph 35 and the case-law cited).
78


Furthermore, even though Article 4(2) of Directive 92/50 and Article 14 of Directive 2004/18, upon which the Republic of Austria principally relies, afford the Member States discretion in deciding the measures considered to be necessary for the protection of their essential security interests, those articles cannot, however, be construed as conferring on Member States the power to derogate from the provisions of the FEU Treaty simply by invoking those interests. A Member State which wishes to avail itself of those derogations must show that such derogation is necessary in order to protect its essential security interests. Such a requirement also applies to the extent that that Member State relies, in addition, on Article 346(1)(a) TFEU (see, by analogy, judgment of 4 September 2014, Schiebel Aircraft, C‑474/12, EU:C:2014:2139, paragraph 34).
79


Accordingly, a Member State which wishes to avail itself of those derogations must establish that the protection of such interests could not have been attained within a competitive tendering procedure as provided for by Directives 92/50 and 2004/18 (see, by analogy, judgment of 8 April 2008, Commission v Italy, C‑337/05, EU:C:2008:203, paragraph 53).
89


In that regard, it should be noted that the Court has held that the requirement to impose an obligation of confidentiality does not in itself prevent the use of a competitive tendering procedure for the award of a contract (see, to that effect, judgment of 8 April 2008, Commission v Italy, C‑337/05, EU:C:2008:203, paragraph 52).
90


Furthermore, the Court has also held that the confidential nature of data can be protected by a duty of secrecy, without it being necessary to contravene public procurement procedures (see, by analogy, judgment of 5 December 1989, Commission v Italy, C‑3/88, EU:C:1989:606, paragraph 15).
104


Nonetheless, according to settled case-law, the award of contracts which, in view of their value, do not fall within the scope of the directives on the award of public contracts is subject to the fundamental rules and general principles of the FEU Treaty, in particular the principles of equal treatment and of non-discrimination on grounds of nationality and the consequent obligation of transparency, provided that those contracts have certain cross-border interest (judgment of 6 October 2016, Tecnoedi Costruzioni, C‑318/15, EU:C:2016:747, paragraph 19 and the case-law cited).
105


In that regard, it should be noted that it is for the Commission to establish that the contract in question has certain interest for an undertaking located in a Member State other than that of the contracting authority in question, and the Commission is unable to rely on any presumption for that purpose (see, to that effect, judgment of 13 November 2007, Commission v Ireland, C‑507/03, EU:C:2007:676, paragraphs 32 and 33 and the case-law cited).
106


With regard to the objective criteria which may indicate certain cross-border interest, the Court has previously held that such criteria may be, inter alia, the fact that the contract in question is for a significant amount, in conjunction with the place where the work is to be carried out or the technical characteristics of the contract and the specific characteristics of the products concerned (see, to that effect, judgment of 6 October 2016, Tecnoedi Costruzioni, C‑318/15, EU:C:2016:747, paragraph 20 and the case-law cited).