Union des syndicats de l'immobilier (UNIS) v Ministre du Travail, de l’Emploi et de la Formation professionnelle et du Dialogue social et Syndicat national des résidences de tourisme (SNRT) and Others and Beaudout Père et Fils SARL v Ministre du Travail, de l’Emploi et de la Formation professionnelle et du Dialogue social and Others.
Date: 2015-12-17
16. Relying implicitly on paragraphs 59 to 65 of the judgment in AG2R Prévoyance (C‑437/09, EU:C:2011:112), which left this question to be determined by national courts, the referring court considers that AG2R Prévoyance, although it is non-profit-making and acts on the basis of the principle of solidarity, was freely chosen by the social partners, following negotiations which concerned inter alia the arrangements pertaining to its appointment, from among the provident societies, mutual associations and insurance firms that were suitable to be appointed as the manager of a supplementary scheme such as the scheme concerned. AG2R Prévoyance must accordingly be regarded as an undertaking engaged in an economic activity which was chosen by the social partners from among other undertakings with which it is in competition on the market in the relevant insurance services.
17. However, the referring court, still implicitly relying on the judgment in AG2R Prévoyance (C‑437/09, EU:C:2011:112), adopts the analysis in paragraphs 66 to 81 of that judgment and consequently considers that neither the addendum at issue nor the order extending the agreement is unlawful from the point of view of Articles 102 TFEU and 106 TFEU. It also rejects, as unrelated to those articles, the complaint that the appointment of the insurer was not preceded by any call for tenders.
27. As a preliminary point, it should be recalled, first, that, in the case of supplies of services which involve action on the part of national authorities, such as the award of a services concession, the obligation of transparency does not apply to every operation but only to those that present certain cross-border interest because they are, objectively, of such a kind as to be of interest to economic operators established in Member States other than the State of the authority which awards them (see by analogy, inter alia, judgment in SECAP and Santorso , C‑147/06 and C‑148/06, EU:C:2008:277, paragraph 24).
28. It should be noted in this regard that the referring court has not established the facts needed to enable the Court to ascertain whether, in the cases in the main proceedings, there is certain cross-border interest. It must be borne in mind that, as is apparent from Article 94 of the Rules of Procedure, the Court must be able to find in a request for a preliminary ruling an account of the facts on which the questions are based and of the connection, inter alia, between those facts and those questions. Accordingly, the findings of fact needed to make it possible to ascertain whether there is certain cross-border interest, and more generally all the findings to be made by the national courts and on which the applicability of an act of secondary or primary EU legislation depends, should be made before the questions are referred to the Court (see judgment in Azienda sanitaria locale n. 5 ‘Spezzino’ and Others , C‑113/13, EU:C:2014:2440, paragraph 47).
29. However, because of the spirit of cooperation in relations between the national courts and the Court of Justice in the context of the preliminary ruling procedure, the lack of such preliminary findings by the referring court concerning the existence of certain cross-border interest does not necessarily lead to the request being inadmissible if the Court, in the light of the information in the documents before it, considers that it is in a position to give a useful answer to the referring court. That is the case, in particular, where the order for reference contains sufficient relevant information for the existence of such an interest to be determined (judgment in Enterprise Focused Solutions , C‑278/14, EU:C:2015:228, paragraph 19 and the case-law cited).
30. Whether there is certain cross-border interest must be determined on the basis of all the relevant factors, such as the financial value of the contract, the place where it is to be performed or its technical features, having regard to the particular characteristics of the contract concerned (see to that effect, inter alia, judgment in Belgacom , C‑221/12, EU:C:2013:736, paragraph 29 and the case-law cited).
32. Consequently, the Court’s answer is given subject to the proviso that the referring court establishes that there is certain cross-border interest in the case in the main proceedings (judgment in Enterprise Focused Solutions , C‑278/14, EU:C:2015:228, paragraph 19 and the case-law cited). Accordingly, the following statements are made on the premiss that the grant of the right to manage each of the supplementary social insurance schemes at issue in the main proceedings for all employers and employees within the sectors concerned presents certain cross-border interest, a matter which must, however, be determined by the referring court.
34. Thirdly, it is by operation of that decision that that body acquires an exclusive right (see, to that effect, judgment in Albany , C‑67/96, EU:C:1999:430, paragraph 90). The extension decision has the effect of excluding operators established in other Member States which might be interested in carrying out that management activity (see, by analogy, judgment in Sporting Exchange , C‑203/08, EU:C:2010:307, paragraph 47).
35. Fourthly, where a public authority creates an exclusive right, the obligation of transparency is, in principle, to be complied with (see, to that effect, judgment in Sporting Exchange , C‑203/08, EU:C:2010:307, paragraph 47). Accordingly, where a public authority exercises its power to extend the binding nature of a collective agreement appointing a single body to manage a supplementary social insurance scheme, it must previously have given potentially interested operators other than the one appointed an opportunity to express their interest in providing such management and must have acted with full impartiality when appointing the operator entrusted with management of that supplementary scheme.
38. According to the case-law, the obligation of transparency stems from the principles of equal treatment and non-discrimination, compliance with which is required by the freedom to provide services guaranteed by Article 56 TFEU. Indeed, in the absence of all transparency, an award to an undertaking located in the Member State in which the award procedure takes place, amounts to a difference in treatment which operates mainly to the detriment of all undertakings which might be interested but which are located in other Member States, since those undertakings have had no real opportunity of expressing their interest, and that difference in treatment amounts, in principle, to indirect discrimination on grounds of nationality, which is, in principle, prohibited by Article 56 TFEU (see, to that effect, inter alia, judgments in Coname , C‑231/03, EU:C:2005:487, paragraphs 17 to 19, and Belgacom , C‑221/12, EU:C:2013:736, paragraph 37 and the case-law cited).
39. Although the obligation of transparency does not necessarily require there to be a call for tenders, it does require there to be a degree of publicity sufficient to enable, on the one hand, competition to be opened up and, on the other, the impartiality of the award procedure to be reviewed (see, to that effect, inter alia, judgment in Engelmann , C‑64/08, EU:C:2010:506, paragraph 50 and the case-law cited).
50. In that regard, it should be noted that, according to settled case-law, it is only exceptionally that the Court may decide to restrict for any person concerned the opportunity of relying on a provision which it has interpreted with a view to calling into question legal relationships established in good faith (see, inter alia, judgment in Transportes Jordi Besora , C‑82/12, EU:C:2014:108, paragraph 41 and the case-law cited). Application of that case-law in the context of the cases in the main proceedings requires, however, that the specific features of public procurement law and the very particular nature of the situation at issue in the main proceedings be taken into account.
51. In the area of public procurement, Articles 2d and 2f of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33), as amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 (OJ 2007 L 335, p. 31), read in the light of recitals 25 to 27 of Directive 2007/66, enable the Member States to limit, under certain conditions, the right to bring actions against contracts concluded in breach of EU law (see, to that effect, judgment in MedEval , C‑166/14, EU:C:2015:779, paragraphs 34 and 35). It follows that, in certain circumstances, the interest in preventing legal uncertainty may justify putting the stability of contractual arrangements already in the course of performance before observance of EU law.