Anodiki Services EPE v G.N.A. O Evangelismos – Ofthalmiatreio Athinon – Polykliniki and Geniko Ogkologiko Nosokomeio Kifisias – (GONK) 'Oi Agioi Anargyroi'.
Date: 2018-10-25
25


In accordance with the Court’s settled case-law, the need for a uniform application of EU law requires that, where a provision of EU law makes no reference to the law of the Member States with regard to a particular concept, that concept must be given an independent and uniform interpretation throughout the European Union. That interpretation must be sought having regard not only to the wording of the provision at issue but also to its context and to the objective pursued by the legislation in question (see, to that effect, inter alia, judgments of 19 December 2013, Fish Legal and Shirley, C‑279/12, EU:C:2013:853, paragraph 42, and of 19 June 2018, Baumeister, C‑15/16, EU:C:2018:464, paragraph 24).
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Secondly, it must be observed that the conclusion of an employment contract, by its nature, gives rise to an employment relationship between the employee and the employer. In the broader context of EU law, it is settled case-law that the essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another in return for which he receives remuneration (see, inter alia, judgments of 3 July 1986, Lawrie-Blum, 66/85, EU:C:1986:284, paragraph 17, and of 19 July 2017, Abercrombie & Fitch Italia, C‑143/16, EU:C:2017:566, paragraph 19 and the case-law cited).
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In the second place, with regard to Articles 49 and 56 TFEU and the principles of EU law referred to in the second question, it should be recalled that, although in the field of public procurement the principle of equal treatment and the specific expressions of that principle, namely the prohibition of discrimination on grounds of nationality and Articles 49 and 56 TFEU, are to be applied in cases where a public authority entrusts the supply of economic activities to a third party, it is nevertheless not appropriate to apply EU law on public procurement in a case where a public authority performs tasks in the public interest for which it is responsible by its own administrative, technical and other means, without calling upon external entities (see, to that effect, judgments of 11 January 2005, Stadt Halle and RPL Lochau, C‑26/03, EU:C:2005:5, paragraph 48, and of 13 October 2005, Parking Brixen, C‑458/03, EU:C:2005:605, paragraph 61).
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In the third place, as regards Articles 16 and 52 of the Charter, it should be recalled that, in accordance with Article 51(1), the provisions of the Charter are addressed to the Member States only when they are implementing EU law. Under Article 51(2), the Charter does not extend the scope of EU law beyond the powers of the Union, and it does not establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties. Accordingly, the Court is called upon to interpret EU law, in the light of the Charter, within the limits of the powers conferred on it (judgment of 8 November 2012, Iida, C‑40/11, EU:C:2012:691, paragraph 78 and the case-law cited).
42


The wording of Article 1(1) of Directive 89/665 assumes, by using the words ‘as regards procedures’, that every decision of a contracting authority falling under EU rules in the field of public procurement and liable to infringe them is subject to the judicial review provided for in Article 2(1)(a) and (b) of that directive. That provision thus refers generally to the decisions of a contracting authority, without distinguishing between those decisions according to their content or time of adoption (see judgment of 5 April 2017, Marina del Mediterráneo and Others, C‑391/15, EU:C:2017:268, paragraph 26 and the case-law cited).
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That broad construction of the concept of a ‘decision’ taken by a contracting authority is confirmed by the fact that Article 1(1) of Directive 89/665 does not lay down any restriction with regard to the nature or content of the decisions to which it refers. Moreover, a restrictive interpretation of that concept would be incompatible with the terms of Article 2(1)(a) of that directive which requires Member States to make provision for interim relief procedures in relation to any decision taken by the contracting authorities (see judgment of 5 April 2017, Marina del Mediterráneo and Others, C‑391/15, EU:C:2017:268, paragraph 27 and the case-law cited).
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In addition, it must be noted that any act of a contracting authority adopted in relation to a public service contract within the material scope of Directive 2014/24 and capable of producing legal effects constitutes a decision amenable to review within the meaning of Article 1(1) of Directive 89/665, regardless of whether that act is adopted outside a formal award procedure or as part of such a procedure (judgment of 11 January 2005, Stadt Halle and RPL Lochau, C‑26/03, EU:C:2005:5, paragraph 34).
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In that regard, where a contracting authority decides not to initiate an award procedure on the ground that the contract in question does not, in its opinion, fall within the scope of the relevant EU rules, such a decision is open to judicial review (see, to that effect, judgment of 11 January 2005, Stadt Halle and RPL Lochau, C‑26/03, EU:C:2005:5, paragraph 33).
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An approach in which Directive 89/665 does not require judicial protection outside a formal award procedure, so that neither the contracting authority’s decision not to initiate such a procedure, nor the decision as to whether a public contract falls within the scope of the relevant EU rules, cannot be the subject of review, would have the effect of making the application of the relevant EU rules optional, at the option of every contracting authority, even though that application is mandatory where the conditions of application are satisfied (see, to that effect, judgment of 11 January 2005, Stadt Halle and RPL Lochau, C‑26/03, EU:C:2005:5, paragraph 36 and 37).