Consorzio Artigiano Servizio Taxi e Autonoleggio (CASTA) and Others v Azienda sanitaria locale di Ciriè, Chivasso e Ivrea (ASL TO4) and Regione Piemonte.
Date: 2016-01-28
36


That annex is divided into two parts, A and B. Medical transport services, such as those at issue in the main proceedings, are, according to the information provided by the referring court, covered by Category 2 in Annex II A to Directive 2004/18 as regards the transport aspects of those services, and by Category 25 in Annex II B to that directive as regards the medical aspects thereof (see, with regard to emergency ambulance services, judgment in Azienda sanitaria locale No 5 ’Spezzino and Others, C‑113/13, EU:C:2014:2440, paragraph 34 and the case law cited therein).
37


With regard to mixed services covered by Annexes II A and II B to Directive 2004/18, Article 22 thereof is applicable. In accordance with that article, public contracts the value of which exceeds the relevant threshold laid down in Article 7 thereof and which concern such mixed services must be awarded in accordance with Articles 23 to 55 of that directive where the value of the transport services, listed in Annex II A, is greater than the value of the medical services, listed in Annex II B (see judgment in Azienda sanitaria locale No 5 Spezzino and Others, C‑113/13, EU:C:2014:2440, paragraph 40).
38


Conversely, that is to say, where the value of the medical services exceeds that of the transport services, the contract must be awarded in accordance only with Articles 23 and 35(4) of Directive 2004/18. By contrast, the other rules laid down in that directive in relation to the coordination of procedures, in particular those applicable to the requirements to put out contracts to competition by means of prior advertising and those relating to the award criteria, are not applicable to such contracts (judgment in Azienda sanitaria locale No 5 Spezzino and Others, C‑113/13, EU:C:2014:2440, paragraph 41 and the case-law cited).
39


The EU legislature took as its starting-point the assumption that contracts for the services referred to in Annex II B to Directive 2004/18 are, in principle, in the light of their specific nature, not of sufficient cross-border interest to justify their award being subject to the conclusion of a tendering procedure intended to enable undertakings from other Member States to examine the contract notice and submit a tender (judgment in Azienda sanitaria locale No 5 Spezzino and Others, C‑113/13, EU:C:2014:2440, paragraph 42 and the case-law cited).
40


It follows from paragraphs 38 and 39 of the present judgment that, where the value of the contract in question in the main proceedings exceeds the relevant threshold laid down in Article 7 of Directive 2004/18, the contract award procedure must comply with the rules laid down in that directive. Thus, depending on whether or not the value of the transport services exceeds the value of the medical services, either all the procedural rules in that directive or solely those in Articles 23 and 35(4) thereof are applicable. It is for the referring court to ascertain whether that contract is covered by both Annex II A to Directive 2004/18 and Annex II B thereto and whether that agreement exceeds the threshold for application. Moreover, it is for the referring court to determine the value of the respective transport and medical services in question (see, to that effect, judgment in Azienda sanitaria locale No 5 Spezzino and Others, C‑113/13, EU:C:2014:2440, paragraph 43)
41


If the value of the contract at issue in the main proceedings exceeds the relevant threshold laid down in Article 7 and the value of the transport services exceeds that of the medical services, Directive 2004/18 will be fully applicable. By contrast, if the referring court were to find that either the threshold has not been reached or that the value of the medical services exceeds the value of the transport services, only the general principles of transparency and equal treatment flowing from Articles 49 TFEU and 56 TFEU would be applicable in addition to Articles 23 and 35(4) of Directive 2004/18 (see, to that effect, judgment in Azienda sanitaria locale No 5 Spezzino and Others, C‑113/13, EU:C:2014:2440, paragraph 44, 45 and the case-law cited).
42


However, in order for those principles to apply in relation to public procurement activities in respect of which all the relevant elements are confined to a single Member State, it is necessary for the contract at issue in the main proceedings to be of certain cross-border interest (judgment in Azienda sanitaria locale No 5 Spezzino and Others, C‑113/13, EU:C:2014:2440, paragraph 46 and the case-law cited).
47


However, although the referring court starts from the premise that the general principles of transparency and equal treatment flowing from Articles 49 TFEU and 56 TFEU are applicable, it has not established the facts necessary for this Court to ascertain whether, in the case in the main proceedings, there is certain cross-border interest. As is clear from Article 94 of the Rules of Procedure of the Court of Justice, the Court must be able to find in a request for a preliminary ruling a summary of the facts on which the questions are based and the connection, inter alia, between those facts and the questions. Therefore, the findings necessary to verify the existence of 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 and primary legislation of the European Union depends, must be made before the questions are referred to the Court (see judgment in Azienda sanitaria locale No 5 Spezzino and Others, C‑113/13, EU:C:2014:2440, paragraph 47).
48


In view of the spirit of judicial cooperation which governs relations between national courts and the Court of Justice in the context of preliminary ruling proceedings, the fact that the referring court did not make those initial findings relating to the possible existence of certain cross-border interest does not mean, however, that the request for a preliminary ruling is inadmissible if, in spite of those deficiencies, the Court, in the light of the information contained in the court file, considers that it is in a position to provide a useful answer to the referring court. That is the case, in particular, where the decision to refer contains sufficient relevant information for the existence of such an interest to be determined. Nevertheless, the response provided by the Court takes effect only if it is possible for the referring court to establish certain cross-border interest in the case at issue in the main proceedings, on the basis of a detailed assessment of all the relevant facts in the case in the main proceedings (see judgment in Azienda sanitaria locale No 5 Spezzino and Others, C‑113/13, EU:C:2014:2440, paragraph 48 and the case-law cited).
52


It should at the outset be noted that a contract cannot fall outside the concept of public contract merely because the remuneration is limited to reimbursement of the expenditure incurred to provide the agreed service or because the contract is concluded with a non-profit-making body (see, to that effect, judgment in Azienda sanitaria locale No 5 Spezzino and Others, C‑113/13, EU:C:2014:2440, paragraphs 36 and 37 and the case-law cited).
54


In the first case, it should be considered that Directive 2004/18 precludes national legislation, such as that at issue in the main proceedings, which allows local authorities to entrust the provision of medical transport services by direct award, without any form of advertising, to voluntary bodies (see, to that effect, judgment in Azienda sanitaria locale No 5 Spezzino and Others, C‑113/13, EU:C:2014:2440, paragraph 44).
55


In the second case, it must be noted, first, that EU law on public procurement, in so far as it concerns, inter alia, public service contracts, is intended to ensure the free movement of services and the opening-up to competition in the Member States which is undistorted and as wide as possible and, secondly, it must be found that the application of national legislation such as that at issue in the main proceedings leads to a result contrary to those objectives, since it excludes for-profit entities from the markets concerned (see, to that effect, judgment in Azienda sanitaria locale No 5 Spezzino and Others, C‑113/13, EU:C:2014:2440, paragraphs 51 and 52).
56


The award, in the absence of any transparency, of a contract to an undertaking located in the same Member State as the contracting authority amounts to a difference in treatment to the detriment of undertakings which might be interested in that contract but are established in another Member State. Unless it is justified by objective circumstances, such a difference in treatment, which, by excluding all undertakings established in another Member State, operates mainly to the detriment of the latter undertakings, amounts to indirect discrimination on the basis of nationality, prohibited under Articles 49 TFEU and 56 TFEU (judgment in Azienda sanitaria locale No 5 Spezzino and Others, C‑113/13, EU:C:2014:2440, paragraph 52 and the case-law cited).
59


In that connection, it must be recalled, in the first place, that EU law does not detract from the power of the Member States to organise their public health and social security systems (judgment in Azienda sanitaria locale No 5 Spezzino and Others, C‑113/13, EU:C:2014:2440, paragraph 55 and the case-law cited).
60


Admittedly, in the exercise of that power the Member States may not introduce or maintain unjustified restrictions on the exercise of fundamental freedoms in the area of health care. However, in the assessment of compliance with that prohibition, account must be taken of the fact that the health and life of humans rank foremost among the assets or interests protected by the Treaty and it is for the Member States, which have a discretion in the matter, to decide on the degree of protection which they wish to afford to public health and on the way in which that degree of protection is to be achieved (judgment in Azienda sanitaria locale No 5 Spezzino and Others, C‑113/13, EU:C:2014:2440, paragraph 56 and the case-law cited).
61


Furthermore, not only the risk of seriously undermining the financial balance of a social security system may constitute per se an overriding reason in the general interest capable of justifying an obstacle to the freedom to provide services, but also the objective of maintaining, on grounds of public health, a balanced medical and hospital service open to all may also fall within one of the derogations, on grounds of public health in so far as it contributes to the attainment of a high level of health protection. Thus, measures which aim, first, to meet the objective of guaranteeing in the territory of the Member State concerned sufficient and permanent access to a balanced range of high-quality medical treatment and, secondly, assist in ensuring the desired control of costs and prevention, as far as possible, of any wastage of financial, technical and human resources are also covered (judgment in Azienda sanitaria locale No 5 Spezzino and Others, C‑113/13, EU:C:2014:2440, paragraph 57 and the case-law cited).
62


In the second place, a Member State, in the context of its discretion to decide the level of protection of public health and to organise its social security system, may take the view that recourse to voluntary associations is consistent with the social purpose of a medical transport service and may help to control costs relating to that service (see, to that effect, judgment in Azienda sanitaria locale No 5 Spezzino and Others, C‑113/13, EU:C:2014:2440, paragraph 59).
63


However, a system of organisation of a medical transport service such as that at issue in the main proceedings, which enables the competent authorities to use voluntary associations, must actually contribute to the social purpose and the pursuit of the objectives of the good of the community and budgetary efficiency on which that system is based (judgment in Azienda sanitaria locale No 5 Spezzino and Others, C‑113/13, EU:C:2014:2440, paragraph 60).
64


In that connection, it is essential that, where they act in that context, the voluntary associations do not pursue objectives other than those mentioned in the previous paragraph of the present judgment, do not make any profit as a result of their services, apart from the reimbursement of the variable, fixed and on-going expenditure necessary to provide them, and do not procure any profit for their members. Furthermore, although it is permissible to maintain a workforce, for it would, without one, be almost impossible for those associations to act effectively in numerous domains in which the principle of the good of the community may naturally be implemented, the activities of those associations must strictly comply with the requirements laid down by national law (judgment in Azienda sanitaria locale No 5 Spezzino and Others, C‑113/13, EU:C:2014:2440, paragraph 61).
65


Having regard to the general principle of EU law on the prohibition of abuse of rights, the application of that legislation cannot be extended to cover the wrongful practices of voluntary associations or their members. Thus, the activities of voluntary associations may be carried out by the workforce only within the limits necessary for their proper functioning. As regards the reimbursement of costs, it must be ensured that profit making, even indirect, cannot be pursued under the cover of a voluntary activity and that volunteers may be reimbursed only for expenditure actually incurred for the activity performed, within the limits laid down in advance by the associations themselves (judgment in Azienda sanitaria locale No 5 Spezzino and Others, C‑113/13, EU:C:2014:2440, paragraph 62).
71


Nevertheless, it must be noted that, as pointed out in paragraph 60 of the judgment in Azienda sanitaria locale No 5 Spezzino and Others (C‑113/13, EU:C:2014:2440) and in paragraph 63 of the present judgment, the lawfulness of the use of voluntary associations is subject, in particular, to the condition that such use actually contributes to the objective of budgetary efficiency. Therefore, the arrangements for implementing that use, such as those laid down in the contracts concluded with those associations and in any framework agreement, must also contribute to the achievement of that objective. Furthermore, as pointed out in paragraph 62 of the judgment in Azienda sanitaria locale No 5 Spezzino and Others (C‑113/13, EU:C:2014:2440) and in paragraph 65 of the present judgment, the general principle of the prohibition of abuse of rights applies with regard to the reimbursement of expenses incurred by voluntary associations.
74


At the outset, with regard to the principle of a non-profit organisation engaging in an activity on the market, it follows from paragraph 48 of the judgment in CoNISMa (C‑305/08, EU:C:2009:807) that that question falls within the competence of a national legislature.
75


Furthermore, in accordance with paragraph 61 of the judgment in Azienda sanitaria locale No 5 Spezzino and Others (C‑113/13, EU:C:2014:2440) and paragraph 64 of the present judgment, the activities of voluntary associations must strictly comply with the requirements laid down by national law that are applicable to them. Thus, the Court found that, within the limits set by that judgment, the regulatory framework of the activities of those associations falls within the competence of Member States.
77


Observing the limits set out in paragraphs 60 to 62 of the judgment in Azienda sanitaria locale No 5 Spezzino and Others (C‑113/13, EU:C:2014:2440), noted in paragraphs 63 to 65 of the present judgment, however, fundamentally entails respecting the very nature of those voluntary associations.