Michaniki AE v Ethniko Symvoulio Radiotileorasis and Ypourgos Epikrateias.
Date: 2008-12-16
1. This reference for a preliminary ruling relates to the interpretation of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54), as amended by European Parliament and Council Directive 97/52/EC of 13 October 1997 (OJ 1997 L 328, p. 1) (‘Directive 93/37’).
2. The reference was made in proceedings brought by Michaniki AE (‘Michaniki’), a company governed by Greek law, against the Ethniko Simvoulio Radiotileorasis (National Radio and Television Council; ‘the ESR’) and the Ipourgos Epikratias (Minister of State) concerning the decision by which the ESR issued to Pantechniki AE (‘Pantechniki’), also a company governed by Greek law, a certificate of conformity, in the context of a procedure for the award of a public works contract.
Legal context
Community provisions
29. In this respect, it must however be observed that there is nothing in Directive 93/37 to permit the inference that the applicability of its provisions, in particular the common rules on participation laid down, inter alia, in Article 24 thereof, depends on the existence of an actual link with free movement between Member States. As the Advocate General stated at point 16 of his Opinion, that directive does not make the applicability of its provisions to procedures for the award of public works contracts contingent on any condition relating to the nationality or the place of establishment of the tenderers (see, by analogy, Case C‑87/94 Commission v Belgium  [1996] ECR I-2043, paragraph 33).
32. In this respect, it must be recalled that, according to settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (Case C‑415/93 Bosman  [1995] ECR I‑4921, paragraph 59; Case C‑466/04 Acereda Herrera  [2006] ECR I‑5341, paragraph 47; and Case C‑380/05 Centro Europa 7  [2008] ECR I-349, paragraph 52).
33. Consequently, where the questions submitted concern the interpretation of Community law, the Court is in principle bound to give a ruling (see, inter alia, Case C‑326/00 IKA  [2003] ECR I-1703, paragraph 27; Case C‑145/03 Keller [2005] ECR I‑2529, paragraph 33; and Case C‑13/05 Chacón Navas [2006] ECR I‑6467, paragraph 32).
34. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C‑379/98 PreussenElektra  [2001] ECR I‑2099, paragraph 39; Case C-35/99 Arduino  [2002] ECR I-1529, paragraph 25; and Chacón Navas , paragraph 33).
38. The Community directives on public contracts aim to coordinate national procedures in that field (Joined Cases C-226/04 and C-228/04 La Cascina and Others  [2006] ECR I‑1347, paragraph 20). In the case of public works contracts, the second recital in the preamble to Directive 93/37 explicitly emphasises that objective.
39. It is apparent from the second and tenth recitals in the preamble to Directive 93/37 that that coordination seeks the simultaneous attainment of freedom of establishment and freedom to provide services in respect of public works contracts and the development, at the Community level, of effective competition in that field, by promoting the widest possible expression of interest among contractors in the Member States (see, to that effect, Case C‑225/98 Commission v France  [2000] ECR I‑7445, paragraph 34; Case C‑399/98 Ordine degli Architetti and Others  [2001] ECR I‑5409, paragraph 52; Joined Cases C‑285/99 and C‑286/99 Lombardini and Mantovani  [2001] ECR I-9233, paragraph 34; and Case C‑470/99 Universale-Bau and Others [2002] ECR I-11617, paragraph 89).
40. In that context, Article 24 of Directive 93/37, which falls in the title of the directive dealing with the ‘common’ rules on participation, forms part of a detailed set of criteria for the selection of contractors permitted to submit a tender and for the award of the contract (see, by analogy, Case C‑94/99 ARGE  [2000] ECR I-11037, paragraph 27).
41. In a chapter which deals with the criteria for ‘qualitative’ selection, Article 24 identifies, in its first paragraph, seven grounds for excluding contractors from participation, relating to the professional qualities of the person concerned, more specifically his professional honesty, his solvency and his economic and financial capacity (see, by analogy, Case 76/81 Transporoute et travaux  [1982] ECR 417, paragraph 9, and La Cascina and Others , paragraph 21).
42. It should be pointed out in this respect, as the Council of the European Union has done, that the approach of the Community legislature was to adopt only grounds for exclusion based on the objective finding of facts or conduct specific to the contractor concerned, such as to cast discredit on his professional reputation or call into question his economic or financial ability to complete the works covered by the public contract for which he is tendering.
43. Accordingly, the first paragraph of Article 24 of Directive 93/37 must be read as listing exhaustively the grounds capable of justifying the exclusion of a contractor from participation in a contract for reasons, based on objective factors, that relate to his professional qualities. That provision therefore precludes Member States or contracting authorities from adding to the list contained in that provision other grounds for exclusion based on criteria relating to professional qualities (see, by analogy, La Cascina and Others , paragraph 22).
44. The exhaustive list set out in the first paragraph of Article 24 of Directive 93/37 does not however preclude the option for Member States to maintain or adopt substantive rules designed, in particular, to ensure, in the field of public procurement, observance of the principle of equal treatment and of the principle of transparency entailed by the latter, principles which are binding on contracting authorities in any procedure for the award of a public contract (see, to that effect, ARGE , paragraph 24, and Case C‑421/01 Traunfellner  [2003] ECR I‑11941, paragraph 29).
45. Those principles, which mean, in particular, that tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being assessed by the contracting authority (see, to that effect, Case C‑19/00 SIAC Construction  [2001] ECR I-7725, paragraph 34, and Case C-448/01 EVN and Wienstrom  [2003] ECR I‑14527, paragraph 47), constitute the basis of the directives on procedures for the award of public contracts (see, inter alia, Universale-Bau and Others , paragraph 91, and Case C‑315/01 GAT  [2003] ECR I‑6351, paragraph 73), and the duty of contracting authorities to ensure that they are observed lies at the very heart of those directives (see, to that effect, Case C‑513/99 Concordia Bus Finland  [2002] ECR I‑7213, paragraph 81, and Joined Cases C‑21/03 and C-34/03 Fabricom  [2005] ECR I‑1559, paragraph 26).
46. Article 6(6) of Directive 93/37 states moreover that contracting authorities are to ensure that there is no discrimination between the various contractors.
47. It follows that, in addition to the grounds for exclusion based on objective considerations of professional quality, which are listed exhaustively in the first paragraph of Article 24 of Directive 93/37, a Member State is entitled to provide for exclusionary measures designed to ensure observance, in procedures for the award of public contracts, of the principles of equal treatment of all tenderers and of transparency.
48. However, in accordance with the principle of proportionality, which constitutes a general principle of Community law (see, inter alia, Case C-210/03 Swedish Match [2004] ECR I-11893, paragraph 47), such measures must not go beyond what is necessary to achieve that objective (see, to that effect, Fabricom , paragraph 34).
49. In view of the foregoing, the answer to the first question must be that the first paragraph of Article 24 of Directive 93/37 must be interpreted as listing exhaustively the grounds based on objective considerations of professional quality which are capable of justifying the exclusion of a contractor from participation in a public works contract. However, that directive does not preclude a Member State from providing for further exclusionary measures designed to ensure observance of the principles of equal treatment of tenderers and of transparency, provided that such measures do not go beyond what is necessary to achieve that objective.
The second question
50. By its second question, the referring court is essentially asking whether a national provision which establishes an incompatibility between the media sector and the public procurement sector is compatible with the principles of Community law.
51. As a preliminary point, it must be recalled that it is not the task of the Court, in preliminary ruling proceedings, to rule upon the compatibility of national law with Community law or to interpret national law. The Court is, however, competent to give the national court full guidance on the interpretation of Community law in order to enable it to determine the issue of compatibility for the purposes of the case before it (see, inter alia, Case C‑292/92 Hünermund and Others  [1993] ECR I‑6787, paragraph 8; Case C-237/04 Enirisorse [2006] ECR I‑2843, paragraph 24; and Centro Europa 7 , paragraphs 49 and 50).
52. It is therefore appropriate for the Court, in the present case, to restrict its analysis by providing an interpretation of Community law which will be of use to the referring court, which will have the task of determining the compatibility of the provisions of national law concerned with Community law, for the purposes of deciding the dispute before it.
53. As was noted in paragraph 39 of this judgment, the primary aim of Directive 93/37 is to open up public works contracts to Community competition. The purpose of that directive is to avoid the risk of the public authorities indulging in favouritism (see, to that effect, Ordine degli Architetti and Others , paragraph 75, and Lombardini and Mantovani , paragraph 35).
54. The Community coordination of procedures for the award of public contracts is designed in particular to avoid both the risk of preference being given to national tenderers whenever a contract is awarded and the possibility that a contracting authority may choose to be guided by considerations which are unrelated to the contract in question (see, to that effect, Case C‑380/98 University of Cambridge  [2000] ECR I-8035, paragraph 17; Case C‑237/99 Commission v France  [2001] ECR I-939, paragraph 42; and Lombardini and Mantovani , paragraph 36).
55. Against that background, as the Advocate General observed at point 30 of his Opinion, it is appropriate to grant the Member States a certain discretion for the purpose of adopting measures intended to safeguard the principles of equal treatment of tenderers and of transparency, which, as was noted at paragraph 45 of this judgment, constitute the basis of the Community directives on the award of public contracts.
56. Each Member State is best placed to identify, in the light of historical, legal, economic or social considerations specific to it (see, to that effect, La Cascina and Others , paragraph 23), situations propitious to conduct liable to bring about breaches of those principles.
57. Consequently, Community law does not seek to call into question the assessment of a Member State, in the light of the specific context of that Member State, as to the particular risk that such conduct will arise if, amongst the tenderers for a public works contract, there is an undertaking active in the media sector or connected with persons involved in that sector, and as to the need to take measures to reduce that risk.
58. In this case, the Member State concerned took the view that it could not be ruled out that, in the context of their participation in a procedure for the award of a public contract, media undertakings or public works contractors connected with such an undertaking or with persons owning or running it might seek to use in relation to the contracting authority the influence afforded by their position or their connections in the media sector in order to seek to unlawfully influence the decision awarding that contract, by holding out the prospect of a supportive mass information campaign or, on the contrary, a mass information campaign of a critical nature, depending on whether the decision was favourable or unfavourable to the undertaking.
59. A Member State’s desire to prevent the risks of interference of the power of the media in procedures for the award of public contracts is consistent with the public interest objective of maintaining the pluralism and the independence of the media (see, in this respect, Case C-368/95 Familiapress  [1997] ECR I-3689, paragraph 18, and Case C-250/06 United Pan-Europe Communications Belgium and Others  [2007] ECR I-11135, paragraphs 41 and 42). Moreover, it serves specifically another such objective, namely that of fighting against fraud and corruption (see, in this respect, Case C-275/92 Schindler  [1994] ECR I‑1039, paragraphs 57 to 60, and Joined Cases C-338/04, C‑359/04 and C-360/04 Placanica and Others  [2007] ECR I-1891, paragraph 46).
60. It follows that Community law does not preclude the adoption of national measures designed to avoid, in procedures for the award of public works contracts, the risk of occurrence of practices capable of jeopardising transparency and distorting competition, a risk which could arise from the presence, amongst the tenderers, of a contractor active in the media sector or connected with a person involved in that sector, and thus to prevent or punish fraud and corruption.
61. As was made clear in paragraph 48 of this judgment, it is also necessary for such measures to be compatible with the principle of proportionality.
62. A national provision, such as that at issue in the main proceedings, which establishes a system of general incompatibility between the sector of public works and that of the media, has the consequence of excluding from the award of public contracts public works contractors who are also involved in the media sector on account of a connection as owner, main shareholder, partner or management executive, without affording them any possibility of showing, with regard to any evidence advanced, for instance, by a competitor, that, in their case, there is no real risk of the type referred to in paragraph 60 of this judgment (see, by analogy, Fabricom , paragraphs 33 and 35).
63. As the Commission of the European Communities and the Council have asserted, as did Elliniki Technodomiki Techniki Ependitiki Viomichaniki AE at the hearing, such a provision goes beyond what is necessary to achieve the claimed objectives of transparency and equal treatment, by excluding an entire category of public works contractors on the basis of an irrebuttable presumption that the presence amongst the tenderers of a contractor who is also involved in the media sector is necessarily such as to impair competition to the detriment of the other tenderers.
64. The Greek Government drew attention to the possibility stemming from the constitutional provision at issue in the main proceedings of not applying the exclusionary measure to an intermediary – in the form of a spouse, a relative or a financially dependent person or company – of a media undertaking or of a person responsible for such an undertaking if it is demonstrated that the participation of that intermediary in a procedure for the award of a public contract is the result of an autonomous decision which is dictated by the intermediary’s own interest alone.
65. However, that possibility is not capable of reconciling the national provision at issue in the main proceedings with the principle of proportionality.
66. Such a possibility does not alter the automatic and absolute nature of the prohibition affecting any public works contractor who is also active in the media sector or connected with natural or legal persons involved in that sector; such a contractor is not concerned by that qualification to the general exclusionary measure provided for in favour of intermediaries.
67. Moreover, a public works contractor who acts as an intermediary of a media undertaking or of a person owning or running such an undertaking will be excluded from the award of a contract without being afforded the possibility of showing, in the event that it is established that he is acting on behalf of that undertaking or that person, that that action is not liable to influence competition between the tenderers.
68. Lastly, the very broad meaning, in the context of the national provision at issue in the main proceedings, of the concepts of main shareholder and intermediaries, as is clear from paragraph 8 of this judgment, serves to reinforce the disproportionate nature of such a provision.
69. In the light of the above, the answer to the second question must be that Community law must be interpreted as precluding a national provision which, whilst pursuing the legitimate objectives of equal treatment of tenderers and of transparency in procedures for the award of public contracts, establishes an irrebuttable presumption that the status of owner, partner, main shareholder or management executive of an undertaking active in the media sector is incompatible with that of owner, partner, main shareholder or management executive of an undertaking which contracts with the State or a legal person in the public sector in the broad sense to perform a works, supply or services contract.
The third question