Generali-Providencia Biztosító Zrt v Közbeszerzési Hatóság Közbeszerzési Döntőbizottság.
Date: 2014-12-18
22. At the hearing, Generali and the European Commission stated, however, that the Hungarian legislation transposing Directive 2004/18 applies both to contracts which attain the thresholds laid down in Article 7 of that directive and those which do not. In that context, they observed that the Court has held that it has jurisdiction to rule on requests for a preliminary ruling concerning provisions of an EU act in situations where the facts of the main proceedings were outside the scope of that act, but where those provisions had been rendered applicable by domestic law by virtue of a reference made by that law to the content of those provisions (see, to that effect, judgments in Dzodzi , C‑297/88 and C‑197/89, EU:C:1990:360, paragraph 36, and Nolan , C‑583/10, EU:C:2012:638, paragraph 45).
23. It is true that the Court has already held that the interpretation of provisions of an act of the Union in situations outside that act’s scope is justified where those provisions have been made applicable to such situations by national law directly and unconditionally in order to ensure that internal situations and situations governed by EU law are treated in the same way (see, to that effect, judgment in Nolan , EU:C:2012:638, paragraph 47 and the case-law cited).
27. In the second place, in so far as the provisions of the TFEU relied on by the referring court are concerned, it must be observed that, where a public contract does not come within the scope of Directive 2004/18, because it falls short of the relevant threshold laid down in Article 7 of that directive, that contract is subject to the fundamental rules and general principles of that treaty, provided that it is of certain cross-border interest in the light, inter alia, of its value and the place where it is carried out (see, to that effect, judgments in Ordine degli Ingegneri della Provincia di Lecce and Others , C‑159/11, EU:C:2012:817, paragraph 23, and Consorzio Stabile Libor Lavori Pubblici , C‑358/12, EU:C:2014:2063, paragraph 24).
31. Since the latter provisions are specific applications of the general prohibition of discrimination on grounds of nationality laid down in Article 18 TFEU, there is no need to refer to Article 18 TFEU in order to answer the question (see, to that effect, judgment in Wall , C‑91/08, EU:C:2010:182, paragraph 32 and the case-law cited).
32. Given that Articles 49 TFEU and 56 TFEU apply to a contract such as that at issue in the main proceedings, provided that that contract is of certain cross-border interest, the contracting authorities are required to abide by the prohibition on discrimination on the grounds of nationality and the obligation for transparency which arise under those articles (see, to that effect, judgment in Wall , EU:C:2010:182, paragraph 33 and the case-law cited).
36. If such a cause for exclusion is possible under Directive 2004/18, it must a fortiori  be regarded as justified in relation to public contracts which fall short of the threshold defined in Article 7 of that directive and which are consequently not subject to the strict special procedures laid down in that directive (see, to that effects, judgment in Consorzio Stabile Libor Lavori Pubblici,  EU:C:2014:2063, paragraph 37).