Mehiläinen Oy and Terveystalo Healthcare Oy v Oulun kaupunki.
Date: 2010-12-22
30. It should also be recalled that Directive 2004/18 makes no distinction between public contracts awarded by a contracting authority for the purposes of fulfilling its task of meeting of public interest needs and those which are unrelated to that task, such as the need to fulfil an obligation imposed on it, as in the present case, as an employer with respect to its employees (see, in particular, Case C-271/08 Commission v Germany  [2010] ECR I-0000, paragraph 73 and the case-law cited).
31. After making that point clear, it should be recalled that a public authority may perform the public interest tasks conferred on it by using its own resources, without being obliged to call on outside entities not forming part of its own departments, and that it may do so in cooperation with other public authorities (see Case C‑480/06 Commission  v Germany  [2009] ECR I-4747, paragraph 45). Similarly, as stated in point 1 of the Commission’s Interpretative Communication on the Application of Community law on Public Procurement and Concessions to Institutionalised (PPPI) (OJ 2008 C 91, p. 4), public authorities are free to pursue economic activities themselves or to assign them to third parties, such as mixed capital entities founded in the context of a public-private partnership.
32. Furthermore, the application of European Union law on public procurement is excluded if the control exercised by the contracting authority over the contracting entity is similar to that exercised by the contracting authority over its own departments and if, at the same time, that entity carries out the essential part of its activities with the controlling local authority (see Teckal , paragraph 50). However, the holding, even a minority holding, of a private undertaking in the capital of a company in which the contracting authority in question also has a holding too means that, on any view, it is impossible for that contracting authority to exercise over that company control similar to that which it exercises over its own departments (see, in particular, Case C-573/07 Sea [2009] ECR I-8127, paragraph 46, and Case C-196/08 Acoset  [2009] ECR I-9913, paragraph 53).
34. However it should be observed, as is clear from point 69 of that Green Paper, that it is necessary to ensure that such a capital transaction does not in reality conceal the award to a private partner of contracts which might be considered to be public contracts or concessions. Furthermore, as stated at paragraph 2.1 of the Commission Interpretative Communication, the fact that a private entity and a contracting entity cooperate within a mixed-capital entity cannot justify failure to observe the provisions on public procurement when awarding such a contract to that private entity or to that mixed capital entity (see, to that effect, Acoset , paragraph 57).
36. In that connection, it is clear from the case-law of the Court that, as regards a mixed contract, the different aspects of which are inseparably linked and thus form an indivisible whole, that contract must be examined as a whole for the purposes of its legal classification in the light of the rules on public contracts, and must be assessed on the basis of the rules which govern the aspect which constitutes the main object or predominant feature of the contract (Joined Cases C‑145/08 and C‑149/08 Club Hotel Loutraki and Others  [2010] ECR I‑0000, paragraphs 48 and 49 and the case-law cited).
41. As regards Oulun kaupunki’s arguments that ‘the current contract is advantageous and competitive’ and that, by that undertaking, ‘the joint venture will commence its activities in favourable conditions’, it must be recalled that, according to the case-law of the Court, the award of a public contract to a semi-public company without a call for tenders would interfere with the objective of free and undistorted competition and the principle of equal treatment, in that such a procedure would offer a private undertaking with a capital holding in that company an advantage over its competitors ( Acoset , paragraph 56 and the case-law cited). Such arguments do not support the conclusion that the aspect constituted by the health care services for the staff of Oulun kaupunki is indissociable from the rest of the contract.