Dr. Falk Pharma GmbH v DAK-Gesundheit.
Date: 2016-06-02
24


That court refers in support of those considerations, first, to the judgment of 10 September 2009 in Eurawasser (C‑206/08, EU:C:2009:540) from which it infers that a contract must not necessarily be awarded in the form of a public service contract where there is a legal alternative, which, in the case in the main proceedings giving rise to that judgment, was recourse to the use of a service concession. Neither primary law nor secondary legislation seems to imply, to the national court, that any acquisition must be the subject of a public procurement contract. It considers that although a distinction exists between public contract and service concession because of the nature of the consideration provided for in the contract, nothing precludes the existence or not of a choice between the interested economic operators being based on another distinction. That court takes the view that the judgment of 15 July 2010 in Commission v Germany (C‑271/08, EU:C:2010:426) could indirectly confirm that conclusion in that the Court held, in paragraph 73, that public procurement directives have the objective of excluding the risk that a preference might be given to national tenderers or candidates in any procurement carried out by contracting authorities.
34


However, it should be noted, first, according to recital 2 of that directive, the coordinating provisions which it establishes must be interpreted in accordance with the principles of the FEU Treaty, in particular the principles of the free movement of goods, freedom of establishment and freedom to provide services and the principles that derive therefrom, such as equality of treatment, non-discrimination, mutual recognition, proportionality and transparency to which the award of public contracts in Member States are subject.
35


Secondly, the coordination at EU level of the procedures for the award of public service contracts being, therefore, to protect the interests of economic operators established in a Member State who wish to offer goods or services to contracting authorities established in another Member State, the purpose of Directive 2004/18 is to avoid the risk of preference being given to national tenderers or applicants whenever a contract is awarded by the contracting authorities (see to that effect, concerning the directive relating to public service contracts previously in force, judgment of 10 November 1998 in BFI Holding, C‑360/96, EU:C:1998:525, paragraphs 41 and 42 and the case-law cited).
36


Essentially, the risk of favouring national economic operators which that directive seeks to preclude is closely connected to the selection which the contracting authority intends to make from the admissible tenders and to the exclusivity which will result from the award of the contract concerned to the operator whose tender has been accepted or to the economic operators whose tenders have been accepted, in the case of a framework agreement, that constituting the objective of a public procurement procedure.
37


Consequently, where a public entity seeks to conclude supply contracts with all the economic operators wishing to supply the goods concerned in accordance with the conditions specified by that entity, the fact that the contracting authority does not designate an economic operator to whom contractual exclusivity is to be awarded means that there is no need to control, through the detailed rules of Directive 2004/18, the action of that contracting authority so as to prevent it from awarding a contract in favour of national operators.
38


It is therefore apparent that the choice of a tender and, thus, of a successful tenderer, is intrinsically linked to the regulation of public contracts by that directive and, consequently, to the concept of ‘public contract’ within the meaning of Article 1(2) of that directive.