Aanbestedingskalender and Others v Commission (Competition - State aid Competition : Judgment) [2017] EUECJ T-138/15 (28 September 2017)

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(State aid — Financing measures granted by the Netherlands authorities for the creation and introduction of the TenderNed electronic procurement platform — Decision finding no State aid — Non-economic services of general interest)

European Commission, represented by P.-J. Loewenthal and K. Herrmann, acting as Agents,

Kingdom of the Netherlands, represented by M. Bulterman, B. Koopman and M. Noort, acting as Agents,

ACTION pursuant to Article 263 TFEU seeking the annulment of Commission Decision C(2014) 9548 final of 18 December 2014 on State aid SA.34646 (2014/NN) (ex 2012/CP) — The Netherlands E-procurement platform TenderNed,

composed of V. Tomljenović, President, E. Bieliūnas (Rapporteur) and A. Marcoulli, Judges,

having regard to the written part of the procedure and further to the hearing on 5 April 2017,

1 The applicants, Aanbestedingskalender BV, Negometrix BV, CTM Solution BV, Stillpoint Applications BV and Huisinga Beheer BV, are undertakings governed by Netherlands law which offer various services relating to e-procurement in the Netherlands.

2 TenderNed is an e-procurement platform which was set up and is operated by PIANOo Expertisecentrum Aanbesteden, a sub-department of the Netherlands Ministry of Economic Affairs, Agriculture and Innovation (‘the Ministry’).

3 TenderNed offers a number of functionalities, made available to contracting authorities and special sector entities (‘contracting authorities’) free of charge. It provides the following functionalities:

– a publication module, which can be used for the publication of tender notices as well as associated tender documents (‘the publication module’);

– a tendering (submission) module, offering functionalities such as the exchange of questions and answers, and the uploading and downloading of tenders and bids. That module also includes a ‘virtual company’ section in which economic operators can introduce and manage their data (‘the submission module’);

– an e-guide, which supports interested parties in using TenderNed (‘the e-guide’).

4 The publication module is divided into two parts, one part for the publication of, inter alia, tender notices (‘the noticeboard’) and a second part for the uploading of associated tender documents to the TenderNed platform.

5 TenderNed also sends statistical information to the national parliament and to the European Commission concerning public procurement in the Netherlands.

6 On 6 April 2012, Stichting Crow, Negometrix, CTM Solution and Stillpoint Applications (‘the complainants’) lodged a complaint (‘the complaint’) with the Commission, seeking a declaration that the financing provided by the Kingdom of the Netherlands for the creation and introduction of the electronic procurement (‘e-procurement’) platform TenderNed constituted unlawful State aid.

7 The complaint was forwarded to the Netherlands authorities, which submitted their comments on 27 June 2012.

8 The complainants submitted further information to the Commission on 30 August, 18 October and 17 December 2012, 12 March and 14 November 2013 and 6 June 2014.

9 The Netherlands authorities provided additional information to the Commission on 31 August, 4 October and 21 November 2012, 8 October, 24 November and 4 December 2014.

10 On 14 January 2013, the Commission sent a letter to the complainants containing a preliminary view on their complaint. In that letter, the Commission stated that the measure at issue did not involve State aid a priori. On 23 July 2013, the Commission sent another letter to the complainants, informing them that it had also arrived at the provisional conclusion that, a priori, the measure at issue did not constitute State aid.

11 On 4 November 2014, the complainants sent the Commission a formal request to act pursuant to Article 265 TFEU, asking the Commission to adopt a formal position on the measure at issue within two months.

12 On 18 December 2014, the Commission adopted Decision C(2014) 9548 final on State aid SA.34646 (2014/NN) (ex 2012/CP) — The Netherlands E-procurement platform TenderNed (‘the contested decision’).

13 In recital 18 of the contested decision, the Commission stated, in essence, that TenderNed’s activities consisted in assisting contracting authorities in organising and executing public procurement processes. In that respect, the Commission noted, in recital 54 of the contested decision, inter alia, that TenderNed had been set up and carried out its activities in accordance with the Wet houdende nieuwe regels omtrent aanbestedingen (Aanbestedingswet 2012) (Law establishing new public procurement rules) of 1 November 2012 (Stb. 2012, No 542; ‘the Procurement Law’).

14 The Commission observed, in essence, in recital 13 of the contested decision, that the Procurement Law had entered into force on 1 April 2013 and transposed the obligations under Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1) and Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114). In addition, the Commission stated that that law had been adopted in parallel with European Union-level policy developments that ultimately resulted in the adoption of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18 (OJ 2014 L 94, p. 65) and Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17 (OJ 2014 L 94, p. 243).

15 In recital 21 of the contested decision, the Commission stated in essence that, when the contested decision was adopted, only the noticeboard was mandatory. It added, however, that the Netherlands authorities had indicated their intention to make mandatory the electronic placement of associated tender documents on the TenderNed platform and the submission module when implementing Directives 2014/24 and 2014/25. In other words, the access to and submission of tender documents via TenderNed was to become mandatory as well.

16 In addition, in recitals 57 and 58 of the contested decision, the Commission referred to the specific obligations imposed on Member States by Directives 2004/17, 2004/18, 2014/24 and 2014/25 (‘the procurement directives’), such as the publication of tender notices and of decisions awarding public contracts, offering guidance and information on the interpretation and application of EU public procurement law and supplying statistical information to the Commission, emphasising their relevance as regards some of TenderNed’s activities.

17 Thus, in recitals 62 to 64 of the contested decision, the Commission examined the functionalities of TenderNed and concluded, in essence, that they enabled contracting authorities to fulfil their obligations under the Procurement Law, which flowed from the procurement directives, and enabled the Kingdom of the Netherlands to fulfil its obligations under those directives. The Commission inferred from this that TenderNed’s activities derived entirely from the need to support the public procurement activities of the contracting authorities and the obligations of the Kingdom of the Netherlands under the procurement directives. The Commission added that, since contracting authorities acted in their capacity as public authorities when complying with the statutory obligations laid down by the Procurement Law, TenderNed should be regarded, by extension, as acting in a similar capacity, providing those authorities with the means to ensure that those obligations are complied with. Moreover, the Commission considered, in essence, that similar reasoning applied where TenderNed’s activities consisted in ensuring that the Kingdom of the Netherlands complied with its obligations under the procurement directives. The Commission stated that TenderNed’s activities should therefore not be considered economic in nature and that the funding of that platform did not constitute State aid within the meaning of Article 107(1) TFEU.

18 In recitals 66 to 68 of the contested decision, the Commission examined and rejected the complainants’ arguments. In essence, it considered, first, that the procurement directives did not prohibit the creation of a platform such as TenderNed, secondly, that limiting TenderNed’s activities solely to the noticeboard functionality would not enable contracting authorities to comply fully with their obligations under the Procurement Law and, thirdly, that, although ensuring that public authorities were able to comply with their obligations under the Procurement Law by channelling public procurement might be an economic activity for the complainants, that did not mean that it was inherently an economic activity. Rather, it was a service of general interest which could be commercially exploited only so long as the State failed to offer that service itself.

19 In recital 70 of the contested decision, the Commission concluded that the measure at issue did not involve State aid within the meaning of Article 107(1) TFEU.

20 By application lodged at the Court Registry on 25 March 2015, the applicants brought the present action.

21 By documents lodged at the Court Registry on 13 July 2015, the Kingdom of the Netherlands and the Slovak Republic applied for leave to intervene in support of the form of order sought by the Commission.

22 By orders of 28 October 2015, the President of the Third Chamber of the Court allowed those interventions.

23 Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Seventh Chamber, to which the present case was accordingly allocated.

25 The Commission, supported by the Kingdom of the Netherlands and the Slovak Republic, contends that the Court should:

26 At the hearing the applicants withdrew their third head of claim and the Court took formal notice of that withdrawal.

27 In support of their action, the applicants essentially raise a single plea in law, alleging infringement of Article 107(1) TFEU on the ground that the Commission made a manifest error of assessment and an error of law by finding that the services provided by TenderNed could be regarded as non-economic services of general interest.

28 The applicants have put forward nine main arguments in support of their plea:

– contrary to the Commission’s assertion in recital 16 of the contested decision, the Procurement Law clearly designates TenderNed as the central platform for e-procurement (argument 1);

– the Commission, in recital 20 of the contested decision, wrongly characterised TenderNed’s functionalities as a ‘basic system’ (argument 2);

– contrary to the Commission’s assertions in recital 62 of the contested decision, the publication module of TenderNed is not necessary for the purpose of ensuring compliance with the principle of transparency, which contracting authorities are required to observe in public procurement procedures (argument 3);

– the Commission erroneously considered, in recital 62 of the contested decision, that the noticeboard function, the publication module and the submission module made it possible to ensure that the public procurement rules of the European Union and of the Kingdom of the Netherlands were complied with (argument 4);

– ensuring compliance with the obligations of the procurement directives may be achieved by means other than the implementation of a centralised platform such as TenderNed (argument 5);

– TenderNed offers services which do not find their origin in the obligations imposed by the procurement directives (argument 6);

– TenderNed’s compatibility with Directives 2014/24 and 2014/25 is irrelevant for the purpose of determining whether or not TenderNed’s activities are economic (argument 8);

– the Procurement Law allows private initiatives on the e-procurement market, which is an indication of the economic nature of TenderNed’s activities (argument 9).

29 The applicants submit, in essence, that the Commission erred in concluding that TenderNed’s activities are non-economic. In their submission, TenderNed’s activities do not intrinsically form part of the exercise of public powers. In addition, the legal framework governing e-procurement services expressly authorises market mechanisms. It follows that TenderNed’s activities must be classified as economic activities.

30 As a preliminary point, it should be borne in mind that for a measure to be classified as aid within the meaning of Article 107(1) TFEU, all the conditions set out in that provision must be fulfilled. First, there must be an intervention by the State or through State resources. Secondly, the intervention must be likely to affect trade between Member States. Thirdly, it must confer an advantage on the recipient by favouring certain undertakings or the production of certain goods. Fourthly, it must distort or threaten to distort competition (see judgment of 17 December 2008, Ryanair v Commission, T‑196/04, EU:T:2008:585, paragraph 36 and the case-law cited).

31 The application of Article 107(1) TFEU to the present case therefore entails a verification as to whether, as the applicants submit, TenderNed should have been regarded as an undertaking, within the meaning of EU competition law.

32 In that regard, it follows from the case-law that, for the purposes of the application of EU competition law, an undertaking is any entity engaged in an economic activity, irrespective of its legal status and the way in which it is financed. It must be noted that, according to settled case-law, any activity consisting in offering goods or services on a given market is an economic activity. Thus, the State itself or a State entity may act as an undertaking (see judgments of 10 January 2006, Cassa di Risparmio di Firenze and Others, C‑222/04, EU:C:2006:8, paragraphs 107 and 108 and the case-law cited, and of 12 July 2012, Compass-Datenbank, C‑138/11, EU:C:2012:449, paragraph 35 and the case-law cited).

33 By contrast, activities connected with the exercise of public powers are not of an economic nature justifying the application of the competition rules laid down in the FEU Treaty (see, to that effect, judgments of 10 January 2006, Cassa di Risparmio di Firenze and Others, C‑222/04, EU:C:2006:8, paragraph 31, and of 12 July 2012, Compass-Datenbank, C‑138/11, EU:C:2012:449, paragraph 36 and the case-law cited).

34 In addition, a legal entity, and inter alia a public entity, may be regarded as an undertaking in relation to only part of its activities, if the activities which form that part must be classified as economic activities (see judgment of 12 July 2012, Compass-Datenbank, C‑138/11, EU:C:2012:449, paragraph 37 and the case-law cited).

35 In so far as a public entity exercises an economic activity which can be separated from the exercise of its public powers, that entity, in relation to that activity, acts as an undertaking, while, if that economic activity cannot be separated from the exercise of its public powers, the activities exercised by that entity as a whole remain activities connected with the exercise of those public powers (see judgment of 12 July 2012, Compass-Datenbank, C‑138/11, EU:C:2012:449, paragraph 38 and the case-law cited).

36 In addition, the fact that a product or a service supplied by a public entity and connected to the exercise by it of public powers is provided in return for remuneration laid down by law and not determined, directly or indirectly, by that entity, is not alone sufficient for the activity carried out to be classified as an economic activity and the entity which carries it out as an undertaking (see judgment of 12 July 2012, Compass-Datenbank, C‑138/11, EU:C:2012:449, paragraph 39 and the case-law cited).

37 By contrast, services which, without forming part of the exercise of public powers, are carried out in the public interest and without a profit motive and are in competition with those offered by operators pursuing a profit motive have been classified as economic activities (see judgment of 6 September 2011, Scattolon, C‑108/10, EU:C:2011:542, paragraph 44 and the case-law cited).

38 In order to determine whether TenderNed’s activities, as defined in the contested decision, form part of the exercise of public powers or whether they can be classified as economic activities, it must be verified whether those activities, by their nature, their aim and the rules to which they are subject, are connected with the exercise of public powers or whether they have an economic character which justifies the application of the EU competition rules (see, to that effect, judgments of 18 March 1997, Diego Calì & Figli, C‑343/95, EU:C:1997:160, paragraphs 16, 18 and 23 and the case-law cited, and of 28 February 2013, Ordem dos Técnicos Oficiais de Contas, C‑1/12, EU:C:2013:127, paragraph 40 and the case-law cited).

39 In that respect, the applicants submit that none of the functionalities offered by TenderNed, which they analyse separately, are connected, by their nature, their aim or the rules to which they are subject, to the exercise of public powers.

40 It is apparent from recitals 62 to 64 of the contested decision that the Commission considered, in essence, that TenderNed’s activities were not economic in nature, since the functionalities that it offered constituted the means by which the contracting authorities and the Kingdom of the Netherlands fulfilled their obligations under the procurement directives and the Procurement Law and were therefore connected with the exercise of public powers.

41 It is appropriate, first of all, to verify whether the functionalities offered by TenderNed are independent of each other, so that it is necessary to demonstrate that each of them, taken separately, is connected with the exercise of public powers, or whether, on the contrary, those functionalities should be seen as forming part of a whole from which they cannot be separated, so that the question whether TenderNed’s activity is connected with the exercise of public powers must be verified by taking account of the interaction between them.

42 In that respect, it must be noted that TenderNed’s various functionalities were designed, as noted in recitals 18, 42, 62 and 63 of the contested decision, for the purpose of assisting contracting authorities in their electronic public procurement activities and, in particular, of providing them with the means to comply with their statutory obligations in relation to the organisation and execution of public procurement processes, from the publication of the tender notice to the award of the public contract itself.

43 The Procurement Law, which imposes those obligations on the contracting authorities, thereby transposes the procurement directives. Accordingly, it is necessary to examine those directives and, in particular, Directives 2014/24 and 2014/25.

44 One of the objectives pursued by Directives 2014/24 and 2014/25 is that procurement procedures should be carried out via electronic means throughout the European Union. That is reflected, in particular, in recitals 52 and 63, respectively, of those directives, in which they define the scope of the obligation, placed on Member States, to make mandatory the use of electronic means at all stages of the procurement procedure. In addition, when implementing e-procurement, Member States were obliged to provide guidance and support to contracting authorities and economic operators, as well as to provide various statistical information concerning public procurement to the Commission, as explained in recital 121 of Directive 2014/24 and in recital 127 of Directive 2014/25.

45 TenderNed was created and implemented by the Kingdom of the Netherlands precisely in order to comply with those obligations. It is true that when it was created and introduced in 2012, Directives 2014/24 and 2014/25 had not yet been adopted. However, the proposals for those directives date from 20 December 2011 and the accompanying explanatory memoranda already envisaged ‘the mandatory transmission of notices in electronic form, the mandatory electronic availability of the procurement documents and ... the switch to fully electronic communication, in particular e-submission, in all procurement procedures within a transition period of two years’. Likewise, the need to provide support in that respect to contracting authorities and economic operators and the need to monitor the application of public procurement rules were envisaged (see, as regards the first point, recitals 51 and 52 of the proposal for Directive 2014/24 and recitals 59 and 60 of the proposal for Directive 2014/25 and, as regards the second point, Article 84 of the proposal for Directive 2014/24 and Article 93 of the proposal for Directive 2014/25).

46 Thus, as mentioned in recital 18 of the contested decision, those functional requirements were taken into account in the design and construction of the TenderNed system.

47 In that respect, the publication module and the submission module offered by TenderNed are electronic means enabling, respectively, the communication of notices and the provision of access to procurement documents, in accordance with Article 53 of Directive 2014/24 and Article 73 of Directive 2014/25, on the one hand, and the communication of requests for participation and, in particular, the communication of tenders, in accordance with Article 22 of Directive 2014/24 and Article 40 of Directive 2014/25, on the other hand. The e-guide is useful only in relation to the publication and submission modules, the operation and use of which it explains, in accordance with Article 83(4) of Directive 2014/24 and Article 99(4) of Directive 2014/25. Lastly, TenderNed provides statistical information to the Commission, an obligation imposed by Article 85 of Directive 2014/24 and Article 101 of Directive 2014/25.

48 Accordingly, it is as a whole that TenderNed helps to achieve the objective of harmonisation and technical integration in the field of public procurement pursued by Directives 2014/24 and 2014/25.

49 In addition, the Commission, in essence, emphasised in recital 67 of the contested decision that if TenderNed’s activities were reduced to those of a mere noticeboard, that would not allow the contracting authorities to comply with all their statutory obligations under the Procurement Law, in particular the obligation to carry out a tendering procedure which ensures that purchases by contracting authorities are made in the most rational, transparent and fair manner possible.

50 Moreover, at the hearing, the Kingdom of the Netherlands stated that TenderNed’s various functionalities had to be regarded as forming part of a whole, enabling contracting authorities to comply with their obligations.

51 It must be noted that considering TenderNed’s various functionalities in isolation, or reducing TenderNed to one of those functionalities, by regarding them as independent of each other, when they are all indispensable for e-procurement and constitute different facets of one and the same activity, would interfere with that activity and disregard the objective pursued by Directives 2014/24 and 2014/25, as noted in paragraphs 44 and 45 above.

52 The functionalities offered by TenderNed must therefore be understood as being linked to each other and forming different facets of the same activity.

53 Thus, it is necessary to examine whether TenderNed’s activities may indeed be connected with the exercise of public powers.

54 The Commission indicated, in recital 33 of the contested decision, that the Netherlands authorities had emphasised that TenderNed provided services of general interest, by performing activities which were connected with the exercise of public authority. In essence, according to recital 34 of the contested decision, the Netherlands authorities considered that safeguarding the principles of equal treatment and transparency and ensuring the effective functioning of public procurement rules and compliance with those rules by contracting authorities was a matter of public policy. In other words, TenderNed pursued the general interest of enabling compliance with the procurement directives. The Netherlands authorities stated that the obligations imposed by the European Union with regard to public procurement were inherently linked to the exercise of public authority and public powers.

55 In that respect, it must be pointed out that only contracting authorities are subject to public procurement rules, since it is their status as public authorities that entails the application of specific rules when they are contemplating purchasing goods or services. By contrast, private operators are free to purchase goods or services and are therefore not required to initiate a specific procedure such as the public procurement procedure. Thus, as the Commission stated, in recital 63 of the contested decision, contracting authorities must comply with those rules because they are considered part of local, regional or central government and are therefore presumed not to take into account purely industrial or commercial factors when purchasing goods or services.

56 The importance of public procurement within the European Union must also be borne in mind. As stated in recital 2 of Directive 2014/24 and recital 4 of Directive 2014/25, public procurement is one of the market-based instruments to be used to achieve smart, sustainable and inclusive growth while ensuring the most efficient use of public funds, an objective of the Europe 2020 Strategy set out in Commission Communication COM(2010) 2020 final of 3 March 2010, entitled ‘Europe 2020, a strategy for delivering smart, sustainable and inclusive growth’. Accordingly, contracting authorities, by virtue of their very status as public authorities, are responsible for both the effectiveness of public spending and the achievement of common societal goals, criteria which they must take into account when deciding to award a public contract.

57 Thus, as the Commission rightly indicated, in essence, in recital 64 of the contested decision, when contracting authorities initiate a procurement procedure and comply with the procurement rules, they are acting as public authorities.

58 In addition, it must be noted that TenderNed provides its services free of charge and that it is apparent from the case-law that the fact that a body is non-profit-making is a relevant, albeit not sufficient, factor for the purpose of determining whether or not an activity is of an economic nature (see, to that effect, judgment of 26 March 2009, SELEX Sistemi Integrati v Commission, C‑113/07 P, EU:C:2009:191, point 116).

59 It follows from the foregoing that by their nature and purpose — which is to provide contracting authorities, free of charge, with functionalities, ranging from the publication of tender notices and the submission of tenders to the award of public contracts, in accordance with the applicable rules, namely the procurement directives and the Procurement Law — the activities of TenderNed, which was created and is directly used by the Ministry, are closely linked to the activity of public procurement by contracting authorities and are therefore connected with the exercise of public powers.

60 Consequently, in accordance with the case-law cited in paragraph 33 above, the Commission was entitled to conclude that TenderNed’s activities were not of an economic nature.

62 In the first place, the applicants question, in their fourth argument, whether TenderNed’s functionalities may be connected with the exercise of public powers. In that respect, they submit that, contrary to the Commission’s conclusion in recital 62 of the contested decision, the publication and submission modules are not sufficient to ensure that calls for tenders are transparent and that public procurement procedures are properly conducted in accordance with the public procurement rules. According to the applicants, if public contracts that fall within the scope of the procurement directives are, in breach of the rules, not published on TenderNed, the Netherlands authorities will not be able to ensure compliance with, for example, the principle of transparency. They therefore conclude that the publication module and the submission module merely provide tools which are used by contracting authorities to prepare their calls for tenders and by economic operators to submit bids. Lastly, they observe that TenderNed is prone to down-times and malfunctions, to an extent unheard of on the e-procurement market.

63 The Court observes that the applicants’ argument is based on a misinterpretation of the contested decision and demonstrates a misunderstanding of the objective of TenderNed. As the Kingdom of the Netherlands submitted in its statement in intervention, although there are control mechanisms built into TenderNed that carry out a partial control of the accuracy of notices, the purpose of its activities is not to monitor or to penalise infringements of the public procurement rules — tasks which are the responsibility of the national courts or the Autoriteit Consument en Markt (the Netherlands Authority for Consumers and Markets) — but rather to assist the contracting authorities in complying with their statutory obligations under the procurement directives and the Procurement Law.

64 Thus, the obligatory use of the publication module ensures that tender notices are published whereas the use of the submission module ensures that public contracts are properly implemented, in accordance with, inter alia, the principles of transparency and equal treatment as well as the public procurement rules which must be complied with in public procurement procedures.

65 In addition, as the Commission observed in the defence, the Netherlands authorities have taken all possible steps to ensure that the public procurement rules are complied with, but it cannot be required, in order for those measures to be connected with the exercise of public powers, that they must guarantee full compliance with the rules that they are intended to apply. The responsibility for correct implementation remains with the contracting authorities and cannot be guaranteed by TenderNed alone, as the Kingdom of the Netherlands noted in its statement in intervention.

66 Lastly, the applicants’ argument alleging that TenderNed is prone to malfunctions is ineffective, since any problems encountered in its use cannot change the fact that it was created and implemented in order to assist contracting authorities in public procurement procedures.

67 At the hearing, the applicants also submitted that, contrary to the Commission’s assertions in the defence, the judgment of 16 July 2014, Zweckverband Tierkörperbeseitigung v Commission (T‑309/12, not published, EU:T:2014:676), did not justify the conclusion that TenderNed was connected with the exercise of public powers, but rather, on the contrary, supported their argument, namely that TenderNed’s activities were economic in nature.

68 It must be noted that, in that judgment, the Court, in essence, made a distinction between the disposal and transformation of animal by-products, on the one hand, and ensuring that those by-products were correctly transformed or disposed of at all times, on the other. It concluded that the first activity — the economic significance of which and the possibility that private companies could be tasked with it were expressly acknowledged in the Tierische Nebenprodukte-Beseitigungsgesetz (Law on the elimination of animal by-products) of 25 January 2004 (BGBl. 2004 I, p. 82), transposing and applying, inter alia, Regulation (EC) No 1069/2009 of the European Parliament and of the Council of 21 October 2009 laying down health rules as regards animal by-products and derived products not intended for human consumption (Animal by-products Regulation) (OJ 2009, L 300, p. 1) — was an economic activity, whereas the task of ensuring that such products were properly transformed and disposed of, which was incumbent upon the competent authorities of the German Länder themselves, was a task forming part of the exercise of public powers (see, to that effect, judgment of 16 July 2014, Zweckverband Tierkörperbeseitigung v Commission, T‑309/12, not published, EU:T:2014:676, paragraphs 59 and 63).

69 In the present case, it must be pointed out that, according to the procurement directives, the Member States are required to ensure that an adequate system is in place on their territory so as to guarantee that public procurement is carried out electronically, but they are free to choose the means of achieving that objective, as, moreover, the Commission implicitly acknowledged in recital 66 of the contested decision. In that respect, a distinction may be drawn, like the distinction made in the judgment of 16 July 2014, Zweckverband Tierkörperbeseitigung v Commission (T‑309/12, not published, EU:T:2014:676), between, on the one hand, e-procurement and, on the other hand, ensuring that such procurement is not only feasible, but will also be carried out in compliance with the statutory obligations imposed on contracting authorities.

70 It must be held that ensuring that e-procurement will be actually be carried out and comply with the public procurement rules forms part of the exercise of public powers. Not only is it required by the procurement directives, but also the Netherlands legislature decided that that task should be the responsibility of the Ministry, which is, according to Article 4.13 of the Procurement Law, responsible for the organisation, maintenance and security of an electronic system for public procurement.

71 Accordingly, TenderNed, by providing, free of charge, functionalities which ensure that e-procurement is conducted throughout the Netherlands in accordance with the procurement directives and the Procurement Law, and which was set up by the Ministry for that purpose, forms part of the exercise of public powers.

72 In the second place, the applicants dispute, in their seventh argument, that each of TenderNed’s functionalities may be connected with the exercise of public powers. First, the applicants submit, as regards the noticeboard, that the fact that the procurement directives did not make the use of a central platform mandatory for the publication of tender notices confirms that the noticeboard cannot be regarded as being connected with the exercise of public powers. In addition, the applicants dispute that the present case is analogous to that which gave rise to the judgment of 12 July 2012, Compass-Datenbank (C‑138/11, EU:C:2012:449). They submit, first of all, that, unlike the obligation imposed on the Member States to open a central register containing data on companies by Article 3(1) of First Council Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community (OJ, English Special Edition, 1968(I), p. 41), as amended by Directive 2003/58/EC of the European Parliament and of the Council of 15 July 2003 (OJ 2003, L 221, p. 13), at issue in the case that gave rise to the judgment of 12 July 2012, Compass-Datenbank (C‑138/11, EU:C:2012:449), the procurement directives do not require the Member States to create a noticeboard centralising all tender notices, such as that offered by TenderNed. Next, the applicants submit that neither the procurement directives nor the Procurement Law provide for penalties in the event that a contracting authority acts in breach of the requirements for the publication of tender notices, which constitutes a fundamental difference from the case that gave rise to the judgment of 12 July 2012, Compass-Datenbank (C‑138/11, EU:C:2012:449). Lastly, Directive 68/151 established an obligation to provide a location where the required information on companies can be consulted, whereas the procurement directives merely state that contracting authorities must announce public procurement procedures in accordance with certain conditions.

73 In that respect, it suffices to note that the question whether or not the creation of a centralised system such as TenderNed was provided for by the procurement directives and the question whether provision is made for penalties in the event of breach of the obligations imposed by those directives are not decisive for the purpose of determining whether TenderNed’s activities are economic in nature or whether the present case is analogous to that in the judgment of 12 July 2012, Compass-Datenbank (C‑138/11, EU:C:2012:449).

74 As regards the verification of whether TenderNed’s activity was economic, it must be noted that the Commission, in recitals 62 and 63 of the contested decision, did not refer to the need to have a centralised platform or to the need for a penalty in the event of a breach of the obligations imposed by the procurement directives, in order to justify its assertion that TenderNed’s activities were non-economic. It is the fact that TenderNed provides, inter alia, the means enabling contracting authorities to comply with the public procurement rules, as set out in the procurement directives and the Procurement Law, which led the Commission to conclude that TenderNed’s activities were non-economic.

75 As regards the issue whether the present case is analogous to that in the judgment of 12 July 2012, Compass-Datenbank (C‑138/11, EU:C:2012:449), neither the fact that the procurement directives do not require the use of a centralised platform for the publication of notices, nor the fact that non-compliance with obligations is penalised are sufficiently specific characteristics for it to be concluded that the present case is different from or, on the contrary, analogous to that which gave rise to the judgment of 12 July 2012, Compass-Datenbank (C‑138/11, EU:C:2012:449).

76 On the other hand, as the Commission stated in the defence, the fact that, in the present case, TenderNed’s activities consist in providing the means to comply with, inter alia, the statutory obligation to publish incumbent upon contracting authorities is decisive for the purpose of applying the approach taken in the judgment of 12 July 2012, Compass-Datenbank (C‑138/11, EU:C:2012:449).

77 In that respect, it must be borne in mind that, according to the Court of Justice, data collection in relation to undertakings, on the basis of a statutory obligation incumbent on those undertakings to disclose the data and powers of enforcement related thereto, forms part of the exercise of public powers. Consequently, such an activity is not an economic activity (judgment of 12 July 2012, Compass-Datenbank, C‑138/11, EU:C:2012:449, paragraph 40). Equally, an activity consisting in the maintenance and making available to the public of the data thus collected, whether by a simple search or by means of the supply of print-outs, in accordance with the applicable national legislation, is not an economic activity either, since the maintenance of a database containing such data and making that data available to the public are activities which cannot be separated from the activity of collecting the data. The collection of the data would be rendered largely useless in the absence of the maintenance of a database which stores the data for the purpose of consultation by the public (judgment of 12 July 2012, Compass-Datenbank, C‑138/11, EU:C:2012:449, paragraph 41).

78 In the present case, it follows from Article 4.13 of the Procurement Law that there is a statutory obligation incumbent upon the Ministry to create an electronic system on which contracting authorities are required to publish, inter alia, their tender notices and decisions awarding public contracts in order to comply with their publication obligation under the procurement directives and the Procurement Law.

79 As mentioned in recital 61 of the contested decision, the statutory obligations to publish tender notices incumbent upon contracting authorities follow from Articles 1.18, 2.62 and 3.56 of the Procurement Law, according to which, in essence, contracting authorities are required to publish their tender notices on the e-procurement system, namely TenderNed, if the public contracts in question fall within the scope of the relevant directives, or if, despite the fact that they do not fall within the scope of those directives, the contracting entities have nevertheless voluntarily decided to award them under the public procurement procedure. The statutory obligations to publish decisions awarding public contracts are incumbent upon contracting authorities, in accordance with Articles 2.134 and 3.78 of the Procurement Law, where they concern public contracts falling within the scope of the procurement directives. In the latter case, according to Articles 2.134 and 3.78 of the Procurement Law, such decisions must also be published on the e-procurement system, namely TenderNed.

80 Consequently, TenderNed’s activities consisting in providing a noticeboard, in order to allow the publication of the tender notices and decisions awarding public contracts that the contracting authorities are required to communicate in accordance with their statutory obligations, are not economic activities.

81 Accordingly, even if the noticeboard were separated from the rest of TenderNed’s activities, it would remain, in accordance with the case-law established in the judgment of 12 July 2012, Compass-Datenbank (C‑138/11, EU:C:2012:449), connected with the exercise of public powers.

82 Moreover, it must be noted that the Kingdom of the Netherlands, in its statement in intervention, points out that TenderNed prevents the fragmentation of information over a number of different platforms, by centralising the publication of, inter alia, tender notices. In that respect, during the hearing, when questioned on that point by the Court, the Kingdom of the Netherlands stated that contracting authorities could indeed use commercial operators for e-procurement, but that those operators were then required to publish the tender notices on TenderNed, so that the contracting authorities complied with their publication obligations under the Procurement Law.

83 On that basis, although the existence of a central platform was not regarded by the Commission as conclusive evidence that TenderNed’s activities are non-economic and that the introduction of such a platform was not required by Directives 2014/24 or 2014/25, it must nonetheless be noted that, as the Commission essentially points out in recital 66 of the contested decision, the existence of a single central platform bringing together all tender notices ensures that companies can access information relating to public contracts in an easier and more transparent manner, and thus pursues the objective established in the procurement directives of simplifying considerably the publication of public tenders and making the procurement procedures more transparent.

84 Secondly, the applicants submit that the Commission did not take due account of the fact that the possibility of creating tender notices and that of actually publishing those notices were two distinct features. In that respect, they submit that it is now possible to import tender notices created by other systems and that contracting authorities may therefore also comply with their obligation to publish notices on the noticeboard without using the TenderNed publication module.

85 Questioned during the hearing, the applicants clarified that their argument should be understood as drawing a distinction between the activity of publication in itself and the technical means enabling publication. Thus, while they consider that the activity of publication as such is not an economic activity, the technical means enabling publication do in fact constitute an economic activity.

86 In that respect, it must be pointed out, as the Commission stated in the defence, that the applicants make an artificial distinction between publishing and the technical means enabling publication. Since there are statutory obligations to publish notices and decisions on a central platform such as TenderNed, providing contracting authorities with the tools enabling them to create a tender notice which complies with certain formal and substantive criteria guarantees that such notices will be published correctly. In addition, although contracting authorities may use commercial operators for the purpose of publishing their tender notices, those operators are nevertheless required to publish on TenderNed and are, therefore, obliged to use the technical means provided by the platform, in the same way as the contracting authorities which did not use their services.

87 Since publication on a noticeboard and the technical means enabling such publication are, in this case, inextricably linked, the applicants’ argument that they are separate must be rejected and it is sufficient to refer, as regards the issue whether the activity of publishing on the noticeboard is connected with the exercise of public powers, to paragraphs 76 to 81 above.

88 Thirdly, the applicants submit that the Commission has not put forward any convincing line of argument to support the claim that the submission module and the e-guide are connected, within the meaning of the judgment of 12 July 2012, Compass-Datenbank (C‑138/11, EU:C:2012:449), with the exercise of public powers.

89 In that respect, as regards, first of all, the e-guide, as the Commission indicated in recital 62 of the contested decision, read in conjunction with recital 58 of that decision, and in the defence, it fulfils the obligations incumbent upon the Kingdom of the Netherlands, under Article 83(4) of Directive 2014/24 and Article 99(4) of Directive 2014/25, to provide, free of charge, information and guidance concerning the interpretation and the application of EU procurement law and to support contracting authorities in planning and conducting procurement procedures.

90 It is indisputable that assistance in the form of a guide to the use of TenderNed contributes to more efficient public procurement, in accordance with the objective laid down in Directives 2014/24 and 2014/25. As the Kingdom of the Netherlands stated at the hearing, that e-guide allows the State to inform contracting authorities of their obligations and the way in which they can best manage the entire public procurement process. Accordingly, that functionality is connected with the effective operation of the public procurement rules, which constitutes the exercise of public powers.

91 Thus, in accordance with the case-law established in the judgment of 12 July 2012, Compass-Datenbank (C‑138/11, EU:C:2012:449), it must be held that that functionality, which the Kingdom of the Netherlands is required to provide in accordance with Directives 2014/24 and 2014/25 and which contributes to the effective operation of the public procurement rules, is connected with the exercise of public powers, and this would be the case even if it were separated from the other functionalities provided by TenderNed.

92 There is little information about the submission module in the contested decision. In recital 62 of the contested decision, the Commission merely indicated that it ensured that public contracts were appropriately tendered in accordance with the public procurement rules of the European Union and of the Netherlands.

93 That claim must nevertheless be approved, since the submission of tenders is an essential part of the public procurement procedure. The proper conduct of such a procedure is possible only in so far as interested parties have access to effective means of submitting tenders. In that context, the creation and making available of an electronic means of submission such as that in the present case does not mean that that activity should be regarded as economic.

94 It is true that, unlike the activity of publication, in respect of which there are statutory obligations laid down in the Procurement Law requiring contracting authorities to use the e-procurement system set up by the Ministry, namely TenderNed, neither the Commission nor the Kingdom of the Netherlands have claimed that such an obligation exists as regards the activity of submitting tenders.

95 However, it must also be borne in mind that recital 52 and Article 22 of Directive 2014/24, as well as recital 63 and Article 40 of Directive 2014/25, establish that the submission of tenders electronically should gradually be made mandatory, in principle, as the Commission noted in recital 66 of the contested decision.

96 In that context, it is necessary to take into account not only the general objective pursued by TenderNed’s activities, to which the submission module contributes in the same way as the publication module, namely that of offering contracting authorities the means to comply with their statutory obligations in their public procurement activities, but also the fact that separating the submission module from the publication module and the e-guide, or even removing it entirely from the overall TenderNed framework, would interfere with TenderNed’s activities and undermine the objective pursued by Directives 2014/24 and 2014/25, as indicated in paragraph 51 above.

97 The applicants’ arguments cannot therefore call into question the conclusions set out in paragraphs 52 and 60 above.

98 Fourthly, the applicants dispute the analogy made in the contested decision between the measure at issue in the present case and that referred to in the Commission Decision of 2 May 2013 concerning the German national website for insolvency auctions (OJ 2013 C 167, p. 1), which led the Commission to consider that the functionalities offered by TenderNed were connected to the exercise of public powers.

99 In that respect, it must be noted that, as the Commission submits in the defence, it did not rely, in the contested decision, on that decision of 2 May 2013 reaching the conclusion that TenderNed’s functionalities were connected with the exercise of public powers. The Commission referred to that decision in order to emphasise that the Member State did not forego the right to carry out a task that was inherently a ‘public authority’ activity, by acting at a particular time when private operators — perhaps due to lack of prior action by the State — had already taken the initiative offering services to the same end.

100 In the third place, the applicants submit, in their ninth argument, that neither the Procurement Law nor the explanatory memorandum to that law rules out market mechanisms with regard to the activities of TenderNed, which provides a solid indication that those activities do not actually fall within the scope of State powers, but instead constitute economic activities.

101 It must be noted that it is not envisaged that commercial platforms will cease to exist, but rather that the introduction of TenderNed has led them, or should lead them, to adapt.

102 Thus, the consequences of TenderNed for private operators’ activities are envisaged in recitals 41, 46 and 69 of the contested decision. In that respect, it should be observed that the Netherlands authorities expect private operators to offer functionalities different from those provided by TenderNed. Private operators are therefore encouraged to develop additional added value services, going beyond the basic e-procurement activities offered by TenderNed.

103 In any event, the coexistence, alongside TenderNed, of commercial platforms on which contracting authorities may publish their notices, as indicated in recital 69 of the contested decision, does not automatically mean that the activities pursued by TenderNed are economic.

104 In that respect, it must be noted that, even if the use of TenderNed were merely optional, that could not preclude the connection of its activities with the exercise of public powers or alter the nature of those activities (see, to that effect, judgment of 26 March 2009, SELEX Sistemi Integrati v Commission, C‑113/07 P, EU:C:2009:191, paragraph 79).

105 In addition, as the Commission indicated in recital 68 of the contested decision, the claim that, because commercial platforms offer services similar to those of TenderNed, the Commission should have concluded that TenderNed’s activities are economic in nature, does not take into consideration the developments that have taken place in the e-procurement market.

106 In that respect, it must be noted that that market had developed before Directives 2014/24 and 2014/25 were adopted and imposed an obligation on the Member States to implement e-procurement in those States. The fact that that obligation was decided upon at EU level implies that it was considered important to put in place mechanisms which would ensure greater effectiveness and transparency in public procurement. As the Slovak Republic indicated in its statement in intervention, the trend in the development of public procurement systems in Europe is towards e-procurement. The fact that Directives 2014/24 and 2014/25 were adopted is indicative of the intention to harmonise public procurement within the European Union, through actions by the Member States, so that it is carried out electronically throughout the European Union.

107 In addition, the Netherlands authorities stated, as indicated in recital 35 of the contested decision, that the existing commercial platforms did not offer the conditions relating to price, objective quality characteristics, continuity and access to the services provided that would be necessary to fulfil the general interest objectives established by those authorities.

108 Thus, in the light of those developments in public procurement rules, driven by public interest considerations, the Commission was entitled to state, in recital 68 of the contested decision, that e-procurement was a service of general interest, and not an inherent economic activity, which could be commercially exploited so long as the State did not offer that service itself.

109 Since the other arguments raised by the applicants are not specifically intended to demonstrate that TenderNed’s activities are economic in nature, they may be rejected as ineffective.

110 Thus, first of all, whether or not the Procurement Law refers expressly to TenderNed and whether or not TenderNed should be regarded as a ‘basic system’ for e-procurement, as the applicants claim in their first and second arguments, has no bearing on whether the activity performed by that central platform is economic in nature.

111 At the hearing, the applicants recognised that those matters, on which the Commission did not rely in reaching its decision, had no bearing on the legality of the contested decision.

112 Next, the fact, mentioned by the applicants in their third argument, that there was already a central platform for the publication of public contract notices falling within the scope of the procurement directives, namely the Tender Electronics Daily (TED) platform, with the result that the mandatory use of TenderNed would be entirely redundant for the purposes of achieving the objective of centralised publication, cannot call into question the Commission’s conclusions concerning the non-economic nature of TenderNed’s activities.

113 As mentioned in paragraph 74 above, the Commission did not claim that it was necessary to have a central platform in order to justify its conclusion as to the non-economic nature of TenderNed’s activities.

114 Lastly, as regards the applicants’ fifth and sixth arguments suggesting that there are other means of ensuring compliance with the statutory obligations imposed by the procurement directives and criticising the Netherlands authorities, for going beyond what is envisaged in those directives with TenderNed, it must be noted that the applicants themselves state, in their eighth argument, that TenderNed’s compatibility with Directives 2014/24 and 2014/25 is irrelevant to the question of whether or not its activities are of an economic nature.

115 In any event, those arguments raise the question whether the Kingdom of the Netherlands correctly transposed the procurement directives, which does not fall within the scope of the Court’s powers of review in relation to the legality of the contested decision.

116 In view of the foregoing, the Commission was entitled to find that the activities performed by TenderNed were not economic in nature and that the measure at issue in the present case did not involve State aid within the meaning of Article 107(1) TFEU. Consequently, the single plea in law must be rejected and the action therefore dismissed in its entirety.

117 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

118 Furthermore, in accordance with Article 138(1) of the Rules of Procedure, Member States and institutions which intervene in proceedings are to bear their own costs. The Kingdom of the Netherlands and the Republic of Slovakia must therefore be ordered to bear their own costs.

2. Orders Aanbestedingskalender BV, Negometrix BV, CTM Solution BV, Stillpoint Applications BV and Huisinga Beheer BV to pay the costs;

3. Orders the Kingdom of the Netherlands and the Republic of Slovakia to bear their own costs.

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Aanbestedingskalender and Others v Commission (Competition - State aid Competition : Judgment) [2017] EUECJ T-138/15 (28 September 2017) URL: http://www.bailii.org/eu/cases/EUECJ/2017/T13815.html Cite as: [2017] EUECJ T-138/15, ECLI:EU:T:2017:675, EU:T:2017:675

Court of Justice of the European Communities (including Court of First Instance Decisions)