NFS (Public procurement of works, supplies and services - Directive 2004/18/EC - Concept of 'public works contracts' - Judgment) [2024] EUECJ C-28/23 (17 October 2024)

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( Reference for a preliminary ruling - Public procurement of works, supplies and services - Directive 2004/18/EC - Concept of ‘public works contracts’ - Collection of agreements comprising a grant agreement and an undertaking to purchase - Direct economic interest for the contracting authority - Work corresponding to the requirements specified by the contracting authority - Grant and undertaking to purchase constituting State aid compatible with the internal market - Directive 89/665/EEC - Directive 2014/24/EU - Consequences of a finding that a public contract is ineffective - Absolute invalidity ex tunc )

REQUEST for a preliminary ruling under Article 267 TFEU from the Okresný súd Bratislava III (Bratislava III District Court, Slovakia), made by decision of 16 January 2023, received at the Court on 24 January 2023, in the proceedings

Slovenská republika konajúca prostredníctvom Ministerstva školstva, vedy, výskumu a športu Slovenskej republiky,

composed of C. Lycourgos (Rapporteur), President of the Third Chamber, acting as President of the Fourth Chamber, S. Rodin and O. Spineanu-Matei, Judges,

having regard to the written procedure and further to the hearing on 1 February 2024,

- the Slovenská republika konajúca prostredníctvom Ministerstva školstva, vedy, výskumu a športu Slovenskej republiky and the Ministerstvo školstva, vedy, výskumu a športu Slovenskej republiky, by P. Horňák, P. Szabó and M. Tomaschek, advokáti,

- the Slovak Government, by E.V. Larišová, A. Lukáčik and S. Ondrášiková, acting as Agents,

- the Czech Government, by L. Halajová, M. Smolek and J. Vláčil, acting as Agents,

- the European Commission, by G. Gattinara, R. Lindenthal and G. Wils, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 11 April 2024,

1 This request for a preliminary ruling concerns the interpretation of Article 1(2)(b) of 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) and Article 2(1)(6)(c) 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/EC (OJ 2014 L 94, p. 65), and Article 2d(1)(a) and (2) 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 2014/23/EU of the European Parliament and of the Council of 26 February 2014 (OJ 2014 L 94, p. 1) (‘Directive 89/665’).

2 The request has been made in proceedings between NFŠ a. s. and the Slovenská republika konajúca prostredníctvom Ministerstva školstva, vedy, výskumu a športu Slovenskej republiky (Slovak Republic, acting through the Ministry of Education, Science, Research and Sport of the Slovak Republic), and the Ministerstvo školstva, vedy, výskumu a športu Slovenskej republiky (Ministry of Education, Science, Research and Sport of the Slovak Republic) (‘the Ministry of Education’) concerning an undertaking to purchase the national football stadium which was to be built by NFŠ in Slovakia.

3 Article 1 of Directive 89/665, entitled ‘Scope and availability of review procedures’ provides:

Member States shall take the measures necessary to ensure that, as regards contracts falling within the scope of Directive [2014/24] or Directive [2014/23], decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in Articles 2 to 2f of this Directive, on the grounds that such decisions have infringed Union law in the field of public procurement or national rules transposing that law.

3. Member States shall ensure that the review procedures are available, under detailed rules which the Member States may establish, at least to any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement.

‘1. Member States shall ensure that a contract is considered ineffective by a review body independent of the contracting authority or that its ineffectiveness is the result of a decision of such a review body in any of the following cases:

(a) if the contracting authority has awarded a contract without prior publication of a contract notice in the Official Journal of the European Union without this being permissible in accordance with Directive [2014/24] or Directive [2014/23];

2. The consequences of a contract being considered ineffective shall be provided for by national law.

National law may provide for the retroactive cancellation of all contractual obligations or limit the scope of the cancellation to those obligations which still have to be performed. In the latter case, Member States shall provide for the application of other penalties within the meaning of Article 2e(2).

5 Under Article 2e of Directive 89/665, entitled ‘Infringements of this Directive and alternative penalties’, Member States are to provide, in certain cases, for ineffectiveness of the contract or alternative penalties.

‘1. For the purposes of this Directive, the definitions set out in paragraphs 2 to 15 shall apply.

2. (a) “Public contracts” are contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services within the meaning of this Directive.

(b) “Public works contracts” are public contracts having as their object either the execution, or both the design and execution, of works related to one of the activities within the meaning of Annex I or a work, or the realisation, by whatever means, of a work corresponding to the requirements specified by the contracting authority. A ‘work’ means the outcome of building or civil engineering works taken as a whole which is sufficient of itself to fulfil an economic or technical function.

9. “Contracting authorities” means the State, regional or local authorities, bodies governed by public law, associations formed by one or several of such authorities or one or several of such bodies governed by public law.

‘This Directive establishes rules on the procedures for procurement by contracting authorities with respect to public contracts as well as design contests, whose value is estimated to be not less than the thresholds laid down in Article 4.’

(1) “contracting authorities” means the State, regional or local authorities, bodies governed by public law or associations formed by one or more such authorities or one or more such bodies governed by public law;

(5) “public contracts” means contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services;

(6) “public works contracts” means public contracts having as their object one of the following:

(c) the realisation, by whatever means, of a work corresponding to the requirements specified by the contracting authority exercising a decisive influence on the type or design of the work;

9 Article 83 of that directive, entitled ‘Enforcement’, is worded as follows:

‘1. In order to effectively ensure correct and efficient implementation, Member States shall ensure that at least the tasks set out in this Article are performed by one or more authorities, bodies or structures. They shall indicate to the [European] Commission all authorities, bodies or structures competent for those tasks.

2. Member States shall ensure that the application of public procurement rules is monitored.

Where monitoring authorities or structures identify by their own initiative or upon the receipt of information specific violations or systemic problems, they shall be empowered to indicate those problems to national auditing authorities, courts or tribunals or other appropriate authorities or structures, such as the ombudsman, national parliaments or committees thereof.

‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 18 April 2016. …’

12 Paragraph 39 of zákon č. 40/1964 Zb. Občiansky zákonník (Law No 40/1964 establishing the Civil Code) of 26 February 1964, in the version applicable to the facts in the main proceedings, provides:

‘Any legal act which by its content or purpose contravenes or circumvents the law or is contrary to accepted principles of morality shall be void.’

13 Paragraph 3(3) of zákon č. 25/2006 Z. z. o verejnom obstarávaní a o zmene a doplnení niektorých zákonov (Law No 25/2006 on public procurement, amending and supplementing certain laws) of 14 December 2005, in the version applicable to the facts in the main proceedings, provides:

‘A works contract within the meaning of this law is a contract the object of which is the execution, or both the design and the execution, of construction works related to one of the activities listed in Section 45 of the common public procurement terminology … or the execution of works. A construction within the meaning of this law is the result of a set of construction works that fulfils an economic function or a technical function and the execution of which meets the requirements of the contracting authority or entity.’

‘If a contracting authority, contracting entity or a person referred to in Article 7 concludes a contract, a concession contract, a framework agreement or an amendment to a contract, concession contract or framework agreement in breach of this law, the [Úrad pre verejné obstarávania (Public Procurement Regulatory Authority)] or the public prosecutor shall, within one year of their conclusion, bring an action for a declaration of invalidity before a court.’

15 Paragraph 3(3) of zákon č. 343/2015 Z. z. o verejnom obstarávaní a o zmene a doplnení niektorých zákonov (Law No 343/2015 on public procurement, amending and supplementing certain laws) of 18 November 2015, in the version applicable to the facts in the main proceedings (‘Law No 343/2015’), provides:

‘A works contract within the meaning of this law is a contract the object of which is:

(c) the execution of works, irrespective of the form established by the contracting authority or the contracting entity exerting a decisive influence on the type of construction or construction design.’

‘1. A tenderer, candidate, participant or person who could have been involved in obtaining a specific contract or concession exceeding the threshold and whose legally protected rights or interests were or could have been affected by the procedure of the contracting authority or contracting entity (“the interested party”) may, after the conclusion of the contract, the concession contract or the framework agreement, apply to the court for the contract, concession contract or framework agreement to be declared void.

11. The right to apply for a declaration that a contract, a concession contract or a framework agreement is void shall lapse if it is not invoked

(a) within 30 days from the date of publication of the notice relating to the outcome of the public procurement procedure in the Official Journal of the European Union in accordance with this law, if the notice also contains a justification for the failure to publish the contract notice, the notice used as an invitation to tender, the concession notice or the notice of competition,

1. from the date of publication of the contract award notice in the Official Journal of the European Union, if the notice does not contain any justification under point (a); or

2. from the date of conclusion of the contract, the works concession contract or the framework agreement in cases other than those referred to in point (a) and in the first subparagraph.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

17 In order to carry out the project for the construction of the Slovak national football stadium, the Slovak Government provided, by Resolution No 400/2013 of 10 July 2013, that the Ministry of Education would conclude, without a competitive tendering procedure, a memorandum with the undertaking Národný futbalový štadión, a. s., which is the predecessor in title of NFŠ. That memorandum, concluded on 11 July 2013, defines the conditions for the award of a grant for the construction of that stadium and the conditions for that construction.

18 On that basis, on 21 November 2013 the Ministry of Education and Národný futbalový štadión signed a grant agreement under which that ministry undertook to pay to that company a grant of EUR 27 200 000 financed from the State budget for the construction of that stadium (‘the grant agreement’). The company undertook to finance at least 60% of the construction costs.

19 On 10 May 2016, the Ministry of Education and NFŠ signed Amendment No 1 to the grant agreement, which amended the entire text of that agreement by removing, inter alia, the option, initially provided for the Slovenský futbalový zväz (Slovak Football Federation) to use certain parts of that same stadium free of charge.

20 On the same day, the Ministry of Education, on behalf of the Slovak Republic as a future purchaser, entered into an undertaking to purchase with NFŠ, as the future vendor, setting out the conditions for the conclusion of the contract to purchase the Slovak national football stadium (‘the undertaking to purchase’). The undertaking to purchase includes, in its annexes, detailed technical specifications and the material parameters of that stadium.

21 The entry into force of the undertaking to purchase was subject to compliance with certain conditions, including the finding by the Commission that the grant and that undertaking constitute State aid compatible with the internal market, within the meaning of Article 107(3)(c) TFEU. The Commission found that to be the case by Decision SA.46530 of 24 May 2017 (OJ 2017 C 354, p. 1).

22 Several legal proceedings are pending concerning the grant agreement or the undertaking to purchase. Before the Okresný súd Bratislava III (Bratislava III District Court, Slovakia), which is the referring court, NFŠ brought an application seeking to establish the content of the undertaking to purchase as regards the determination of the purchase price, in order to exercise the option, provided for in its favour by that undertaking to purchase, to sell the constructed building. According to that company, the undertaking to purchase is valid and does not constitute a public contract, since it does not lay down an enforceable obligation to carry out works. Therefore, it is not a contract for pecuniary interest.

23 On the contrary, the Ministry of Education submits, before the referring court, that the grant agreement and the undertaking to purchase constitute a complete set of reciprocal rights and obligations, the intention being to circumvent law No 343/2015 by virtue of the absence of a competitive tendering procedure. In particular, the undertaking to purchase is for pecuniary interest, as evidenced by the arrangements for determining the purchase price that it provides for.

24 That ministry also argues that it had a decisive influence on the Slovak national football stadium project, which, under the grant agreement, must meet the requirements laid down, as regards category 4 stadiums, by the regulation of the Union of European Football Associations (UEFA) on stadium infrastructure. Furthermore, that ministry set additional requirements through the supreme management body of that project, the steering and monitoring committee for the construction of that stadium, in which it was predominately represented.

25 Furthermore, the parties disagree as to whether an agreement that is contrary to Law No 25/2006, in the version applicable to the facts in the main proceedings, or to Law No 343/2015, can only be rendered invalid, relatively and ex nunc, on the basis of the provisions of those laws, as NFŠ claims, or whether such an agreement can be rendered absolutely invalid ex tunc under Paragraph 39 of Law No 40/1964 establishing the Civil Code of 26 February 1964, in the version applicable to the facts in the main proceedings, as the Ministry of Education contends. Slovak case-law on the subject is contradictory.

26 The referring court states that the grant agreement and the undertaking to purchase are linked in terms of time and subject matter and constitute a framework of reciprocal obligations between the Ministry of Education and NFŠ. More specifically, the grant agreement contains an obligation on the State to award the planned grant and an obligation on Národný futbalový štadión to construct the Slovak national football stadium in accordance with the conditions specified by the Ministry of Education and to allow the Slovak Football Federation to use part of it. The undertaking to purchase establishes, for the benefit of NFŠ, a unilateral option to sell corresponding to an obligation on the State to purchase the constructed building.

27 In those circumstances, the Okresný súd Bratislava III (Bratislava III District Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘1 Do a grant agreement and an [undertaking to purchase], concluded between a ministry (the State) and a person governed by private law selected outside competition procedures, constitute “public works contracts” within the meaning of Article 1(2)(b) of Directive 2004/18 or Article 2(6)(c) of Directive 2014/24 where the grant agreement constitutes State aid approved by the European Commission for the purposes of Article 107(3)(c) TFEU, the grant agreement contains an obligation on the State to [provide the grant] as well as an obligation on the person governed by private law to construct the building in accordance with conditions specified by the ministry and to allow a sports organisation to use a part of that building, and the undertaking to purchase contains a unilateral option conferred on the person governed by private law in the form of an obligation on the State to purchase the constructed building, while those agreements constitute a framework of mutual obligations between the ministry and the person governed by private law which are linked in terms of time and subject matter?

2. Does Article 1(2)(b) of Directive 2004/18 or Article 2(6)(c) of Directive 2014/24 preclude national legislation of a Member State under which any legal act which by its content or purpose contravenes or circumvents the law or is contrary to accepted principles of morality is absolutely invalid (that is to say, from the outset/ex tunc) where that infringement of the law consists of a serious infringement of the rules on public procurement?

3. Do Article 2d(1)(a) and Article 2d(2) of Directive 89/665 preclude national legislation of a Member State under which any legal act which by its content or purpose contravenes or circumvents the law or is contrary to accepted principles of morality is absolutely invalid (that is to say, from the outset/ex tunc) where that infringement of the law consists of a serious infringement (circumvention) of the rules on public procurement, as in the main proceedings?

4. Must Article 1(2)(b) of Directive 2004/18 or Article 2(6)(c) of Directive 2014/24 be interpreted as precluding ex tunc the assumption that an [undertaking to purchase], such as that at issue in the main proceedings, has produced legal effects?’

28 By its first question, the referring court asks, in essence, whether Article 1(2)(b) of Directive 2004/18 and Article 2(1)(6)(c) of Directive 2014/24 must be interpreted as meaning that a collection of agreements binding a Member State to an economic operator and including a grant agreement and an undertaking to purchase, concluded with a view to the construction of a football stadium, which collection of agreements creates reciprocal obligations between that State and that economic operator, which include the obligation to build that stadium in accordance with the conditions specified by that State and a unilateral option for the benefit of that economic operator corresponding to an obligation for the same State to purchase that stadium, and grants to the same economic operator State aid recognised by the Commission as being compatible with the internal market, constitutes a ‘public works contract’ within the meaning of those provisions.

29 NFŠ contests the admissibility of the request for a preliminary ruling, in particular on the ground that the first question relates to specific facts which it is for the referring court to verify. In that regard, the wording of that first question contains erroneous and misleading findings of fact. Furthermore, that court reproduced, without any critical examination, the text of the questions put by one of the parties to the main proceedings, namely the Slovak Republic, and ignored, in disregard of the acte éclairé doctrine, the case-law of the Court according to which a contract does not constitute a public contract in the absence of an obligation the performance of which must be legally enforceable.

30 In that regard, it must be stated, first, that, even if the first question contains findings of fact which the referring court must verify, that question concerns the interpretation of provisions of EU law.

31 Moreover, in accordance with settled case-law, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law. The Court must take account, under the division of jurisdiction between the Court and the national courts, of the factual and legislative context, as described in the order for reference, in which the questions put to it are set (judgment of 28 October 2021, X-Beteiligungsgesellschaft (VAT - Successive payments), C-324/20, EU:C:2021:880, paragraph 31 and the case-law cited).

32 Secondly, as regards the fact that the correct interpretation of EU law is so clear in the present case that it leaves no room for any reasonable doubt, it is sufficient to state that, although such a circumstance, if it is proven, may prompt the Court to rule by means of an order pursuant to Article 99 of its Rules of Procedure, that same circumstance nevertheless cannot prevent a national court from referring a question for a preliminary ruling; nor can it have the effect of rendering the question thus referred inadmissible (judgment of 7 September 2023, Asociaţia ‘Forumul Judecătorilor din România’, C-216/21, EU:C:2023:628, paragraph 49 and the case-law cited).

34 As a preliminary point, it should be noted that the directive applicable ratione temporis to the award of a public contract is, in principle, the one in force when the contracting authority chooses the type of procedure to be followed and decides definitively whether or not there is an obligation to proceed to a prior call for competition for the award of that public contract. Conversely, a directive is not applicable if the period prescribed for its transposition expired after that date (see, to that effect, judgment of 14 January 2021, RTS infra and Aannemingsbedrijf Norré-Behaegel, C-387/19, EU:C:2021:13, paragraph 23 and the case-law cited).

35 In the present case, it is apparent from the request for a preliminary ruling that the decision not to proceed with a competitive tendering procedure for the construction of the Slovak national football stadium was adopted by means of Resolution No 400/2013 of the Slovak Government of 10 July 2013, a date on which Directive 2004/18 was applicable. Subject to the verifications which it will be for the referring court to carry out, it appears that that resolution definitively decided, for the Ministry of Education and the Slovak Republic, whether or not there was an obligation to carry out a competitive tendering procedure.

36 In any event, even if that court were to conclude that the final decision on the question whether or not there was an obligation to hold such a call for competition was made after 18 April 2016, the date on which the repeal of Directive 2004/18 took effect and on which the period for transposition of Directive 2014/24 expired, the content of Article 1(2)(b) of Directive 2004/18 corresponds in substance, as regards the execution of a work corresponding to the requirements expressed by the contracting authority, to the content of Article 2(1)(6)(c) of Directive 2014/24.

37 With the benefit of those preliminary clarifications, it is necessary to determine whether a collection of agreements with the characteristics of that at issue in the main proceedings fulfils the criteria of a ‘public works contract’ within the meaning of Article 1(2)(b) of Directive 2004/18, that concept being an autonomous concept of EU law, for which the legal classification given to a contract by the law of a Member State is not relevant (see, to that effect, judgment of 18 January 2007, Auroux and Others, C-220/05, EU:C:2007:31, paragraph 40 and the case-law cited).

38 In that regard, it is necessary to ascertain, in accordance with the definition of the concept of ‘public contract’ in Article 1(2)(a) of Directive 2004/18, whether such a collection of agreements constitutes a contract for pecuniary interest concluded in writing between economic operators and a contracting authority and, if so, whether that contract concerns the execution of a work corresponding to the requirements specified by that contracting authority, within the meaning of Article 1(2)(b) of that directive.

39 In the present case, it will be for the referring court to rule on that matter, having made the relevant findings in that regard. Indeed, it must be borne in mind that Article 267 TFEU does not empower the Court to apply rules of EU law to a particular case, but only to rule on the interpretation of the Treaties and of acts of the institutions of the European Union. According to settled case-law, the Court may, however, in the framework of the judicial cooperation provided for by Article 267 TFEU and on the basis of the material presented to it, provide the national court with an interpretation of EU law which may be useful to it in assessing the effects of one or other of its provisions (judgment of 7 September 2023, Asociația ‘Forumul Judecătorilor din România’, C-216/21, EU:C:2023:628, paragraph 72 and the case-law cited).

40 In the first place, the term ‘contracts’ in Article 1(2)(a) of Directive 2004/18 also covers agreements of intent resulting from several documents, without the fact that each of those documents constitutes a contract under national law constituting an obstacle thereto.

41 In the present case, it is apparent from the request for a preliminary ruling that the grant agreement and the undertaking to purchase are linked in terms of subject matter, both signed in the context of the project to construct the Slovak national football stadium, and in terms of time. That conclusion is confirmed by Decision SA.46530, which states that construction of that stadium did not begin until autumn 2016, that is to say, after the signing, on 10 May 2016, of Amendment No 1 to the grant agreement and the undertaking to purchase.

42 In the second place, the contracts comprising the collection of agreements at issue in the main proceedings were concluded in writing, first, by Národný futbalový štadión, as regards the grant agreement, and by NFŠ, as regards the undertaking to purchase, who are economic operators, and, second, by the Slovak State, which is a contracting authority within the meaning of the first subparagraph of Article 1(9) of Directive 2004/18.

43 In the third place, it is necessary to ascertain whether a collection of agreements with the characteristics of that at issue in the main proceedings is concluded for pecuniary interest.

44 First, according to the case-law of the Court, the expression ‘for pecuniary interest’ refers to a contract by which each of the parties undertakes to provide one form of consideration in exchange for another. The synallagmatic nature of the contract is thus an essential characteristic of a public contract, which necessarily results in the creation of legally binding obligations for each of the parties to the contract, the performance of which must be legally enforceable (see, to that effect, judgment of 10 September 2020, Tax-Fin-Lex, C-367/19, EU:C:2020:685, paragraphs 25 and 26 and the case-law cited).

45 In that regard, it should be noted that, where a contract includes an obligation to purchase by a contracting authority without an obligation to sell devolving on the other contracting party, that absence of an obligation to sell is not necessarily sufficient to rule out the synallagmatic nature of that contract and, therefore, the existence of a public contract, since such a conclusion may, as the case may be, be reached only after an examination of all the relevant factors.

46 In the present case, the referring court mentions the existence of reciprocal obligations between the Ministry of Education and NFŠ. In addition, that court states, inter alia, that the grant agreement imposes an obligation on the State to award the grant and the obligations, for NFŠ’s predecessor in title, to construct the Slovak national football stadium in accordance with the conditions specified by the Ministry of Education, to finance at least 60% of the construction costs and, in the original version of that agreement, to allow the Slovak Football Federation to use part of it free of charge. Although Amendment No 1 to the grant agreement removed that obligation, that amendment did not remove the other obligations, which were transferred to NFŠ.

47 Secondly, in a public works contract, the contracting authority receives a service consisting of the realisation of works which it seeks to obtain and which has a direct economic benefit for it. Such an economic benefit may be established not only where it is provided that the contracting authority is to become owner of the works or work which is the subject of the contract, but also in other situations, in particular where it is provided that the contracting authority is to hold the legal right over the use of those works, in order that they can be made available to the public (see, to that effect, judgment of 22 April 2021, Commission v Austria (Lease of a building not yet constructed), C-537/19, EU:C:2021:319, paragraph 44 and the case-law cited).

48 It is apparent from the documents before the Court that, although the Slovak national football stadium belongs to NFŠ, the grant agreement limits the right to transfer ownership of that stadium to third parties, in particular by requiring prior written consent from the Slovak State in order to do so. Therefore, that State has, with regard to this stadium, in essence, a right of pre-emption with an intrinsic economic value.

49 The economic benefit may also lie in the economic advantages which the contracting authority may derive from the future use or transfer of the work, in the fact that it contributed financially to the realisation of the work, or in the assumption of the risks were the work to be an economic failure (see, to that effect, judgment of 25 March 2010, Helmut Müller, C-451/08, EU:C:2010:168, paragraph 52 and the case-law cited).

50 In the present case, as NFŠ stated in its written observations and at the hearing, the option available to it under the undertaking to purchase constitutes a guarantee against the commercial risk in the event that the Slovak national football stadium proves to be commercially unviable for it. Thus, by undertaking to purchase that stadium at the request of NFŠ, the contracting authority assumed all the risks were the work to be an economic failure.

51 In the fourth place, it must be borne in mind that, in order for a contract to constitute a ‘public works contract’ having as its object the execution of a work, that work must be carried out in accordance with the requirements specified by the contracting authority, the means used for that execution being immaterial (see, to that effect, judgment of 29 October 2009, Commission v Germany, C-536/07, EU:C:2009:664, paragraph 55).

52 In that regard, a decisive influence of the contracting authority on the design of a proposed building can be identified, in particular, if it can be shown that that influence is exercised over the architectural structure of that building, such as its size, external walls and load-bearing walls (see, to that effect, judgment of 22 April 2021, Commission v Austria (Lease of a building not yet constructed), C-537/19, EU:C:2021:319, paragraph 53).

53 In the present case, the referring court states, in the request for a preliminary ruling, that the Slovak national football stadium had to be built in accordance with the conditions specified by the Ministry of Education. In that regard, the latter referred in the case in the main proceedings, as did NFŠ in its written observations before the Court, to compliance with the criteria of the UEFA Stadium Infrastructure Regulations in relation to category 4 stadiums.

54 The obligation to comply with those criteria, the existence of which obligation is to be verified by the referring court, could make it possible to identify a decisive influence of the Slovak State on the architectural structure, in the event that that regulation included requirements relating, for example, to the dimensions of the playing field, the capacity of the stadium in terms of the number of spectators or the number of parking spaces provided, which is also a matter for the referring court to examine.

55 In the light of the foregoing considerations, and subject to the verifications to be carried out by the referring court, a collection of agreements with the characteristics of that at issue in the main proceedings constitutes a ‘public works contract’ within the meaning of Article 1(2)(b) of Directive 2004/18.

56 That conclusion is not called into question by the fact that the Commission found, in Decision SA.46530, that the grant for the construction of the Slovak national football stadium and the undertaking to purchase that stadium constituted State aid compatible with the internal market, within the meaning of Article 107(3)(c) TFEU.

57 According to NFŠ, that decision entails findings that prevent the collection of agreements at issue in the main proceedings from being classified as a public contract. Thus, it follows, inter alia, from that decision that that company was not obliged to build the Slovak national football stadium. In addition, that company states that it complied with the public procurement rules when selecting its suppliers, in accordance with an obligation referred to in that decision.

58 First, although Decision SA.46530 states that NFŠ will remain the owner of the Slovak national football stadium after its construction, without there being any obligation to transfer ownership of that stadium to the Slovak State, that decision does not mention the absence of an obligation to construct that stadium.

59 In any event, it should be noted that it is true that national courts must refrain from taking decisions running counter to a Commission decision on the compatibility of State aid with the internal market, the assessment of which falls within the exclusive competence of that institution, subject to review by the Courts of the European Union (see, to that effect, judgment of 4 March 2020, Buonotourist v Commission, C-586/18 P, EU:C:2020:152, paragraphs 90 and 91 and the case-law cited). However, assessments which might implicitly follow from a decision of that institution relating to State aid cannot, in principle, be binding on the national courts in a dispute, such as that in the main proceedings, which is unrelated to the compatibility of that aid with the internal market.

60 Secondly, where a contracting authority is obliged to comply with the rules of EU law on public procurement, that contracting authority cannot be released from that obligation, which is imposed specifically on it, by requiring the economic operator with which it concludes such a contract to comply with those rules when performing the contract in question. Therefore, in the present case, the existence of a public contract between NFŠ and the Slovak State cannot be called into question by the fact that Decision SA.46530 states that the construction work on the Slovak national football stadium will be the subject of a competitive tendering procedure in accordance with the applicable public procurement rules.

61 In the light of all the foregoing considerations, the answer to the first question is that Article 1(2)(b) of Directive 2004/18 must be interpreted as meaning that a collection of agreements binding a Member State to an economic operator and including a grant agreement and an undertaking to purchase, concluded with a view to building a football stadium, constitutes a ‘public works contract’ within the meaning of that provision, where that collection of agreements creates reciprocal obligations between that State and that economic operator, which include the obligation to construct that stadium in accordance with the conditions specified by that State and a unilateral option in favour of that economic operator corresponding to an obligation on the part of that State to purchase that stadium, and grants the same economic operator State aid recognised by the Commission as being compatible with the internal market.

62 By its second to fourth questions, the referring court asks, in essence, whether Directive 89/665 or Directive 2014/24 must be interpreted as precluding the application, on the basis of a plea of nullity raised by the contracting authority, of national legislation which provides that a contract concluded in breach of the rules on public procurement is to be declared null and void ex tunc.

63 NFŠ considers those questions to be hypothetical. The Commission also doubts the admissibility of those questions, on the ground that the referring court does not clearly state the reasons why it needs an answer.

64 According to settled case-law, questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court for a preliminary ruling only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 30 April 2024, Procura della Repubblica presso il Tribunale di Bolzano, C-178/22, EU:C:2024:371, paragraph 27 and the case-law cited).

65 It is apparent from the request for a preliminary ruling that the Ministry of Education relied, by way of objection, on the invalidity of the collection of agreements at issue in the main proceedings, that that collection of agreements was concluded without a competitive tendering procedure and that the national legislation, as interpreted by part of the national case-law, requires that a contract concluded in breach of the rules on public procurement be declared null and void ex tunc.

66 Accordingly, the second to fourth questions are not hypothetical and it is not obvious that an answer to those questions would not be of use to the referring court in deciding the case before it. It follows that those questions are admissible.

67 In the first place, Directive 89/665 cannot be regarded as carrying out a complete harmonisation and, therefore, as envisaging all possible remedies in public procurement matters (see, to that effect, judgment of 14 May 2020, T-Systems Magyarország, C-263/19, EU:C:2020:373, paragraph 53).

68 In the light of that clarification, it is necessary to ascertain whether a plea of nullity raised by a contracting authority falls within the scope of that directive.

69 In that regard, Article 1 of Directive 89/665, entitled ‘Scope and availability of review procedures’, refers, in paragraph 3 thereof, to the persons who must be able to seek a review under that directive. That provision requires that the review procedures be available at least to any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement.

70 Furthermore, the fourth subparagraph of Article 1(1) of that directive mentions the decisions which must be open to review under that directive. That provision merely requires that decisions taken by contracting authorities may be the subject of such review.

71 It follows from a combined reading of those provisions that Directive 89/665 does not seek to establish procedures or remedies for the benefit of contracting authorities.

72 That interpretation is supported by the case-law of the Court, according to which the provisions of that directive are intended to protect economic operators against arbitrary behaviour on the part of the contracting authority (see, to that effect, judgment of 14 May 2020, T-Systems Magyarország, C-263/19, EU:C:2020:373, paragraph 51 and the case-law cited).

73 In particular, it must be observed that Article 2d of Directive 89/665, mentioned in the third question referred for a preliminary ruling, like Article 2e of that directive, concerns the consequences of the infringement of EU public procurement rules. The Court has held that Article 2e of that directive relates only to actions brought by undertakings which have or have had an interest in obtaining a particular contract and which have been or risk being harmed by an alleged infringement (see, to that effect, judgment of 14 May 2020, T-Systems Magyarország, C-263/19, EU:C:2020:373, paragraph 54).

74 It follows that a plea of nullity raised by a contracting authority does not fall within the scope of Directive 89/665.

75 In the second place, Directive 2014/24, as is apparent from Article 1(1) thereof, only establishes rules applicable to procedures for the award of public contracts, and does not govern the consequences of infringement of those rules.

76 That said, Article 83 of Directive 2014/24 lays down rules on monitoring the application of that directive. Since those rules are procedural in nature, they are applicable from 18 April 2016, the date on which the period for transposing that directive expired, to all new or ongoing public procurement procedures falling within the material scope of that directive.

77 In that regard, the Court held that Article 83(1) and (2) of Directive 2014/24 must be interpreted as neither requiring Member States to adopt, nor as precluding them from adopting, legislation under which a monitoring authority may initiate of its own motion, on grounds of protection of the European Union’s financial interests, a review procedure in order to monitor infringements of public procurement rules (see, to that effect, judgment of 26 March 2020, Hungeod and Others, C-496/18 and C-497/18, EU:C:2020:240, paragraph 84).

78 However, the Court also held that, where such an automatic review procedure is provided for, it comes within the scope of EU law since the public contracts which are the subject of such a review come within the material scope of the public procurement directives. Therefore, such a procedure must comply with EU law, including the general principles of EU law (judgment of 26 March 2020, Hungeod and Others, C-496/18 and C-497/18, EU:C:2020:240, paragraphs 85 and 86).

79 Similarly, Article 83(1) and (2) of Directive 2014/24 must be interpreted as meaning that it neither requires nor precludes Member States from adopting national legislation providing for the possibility for a contracting authority to raise, in a dispute relating to a contract, a plea of absolute nullity ex tunc based on an infringement of public procurement rules.

80 Moreover, it is not apparent from the documents before the Court, subject to verification by the referring court, that the action which gave rise to the dispute in the main proceedings infringes EU law, including the general principles of EU law.

81 In the light of the foregoing considerations, the answer to the second to fourth questions is that Directive 89/665 and Directive 2014/24 must be interpreted as not precluding the application, on the basis of a plea of nullity raised by the contracting authority, of national legislation which provides that a contract concluded in breach of the rules on public procurement is to be declared null and void ex tunc, provided that, in the case of a public contract falling within the material scope of Directive 2014/24, the legislation providing for such a plea of nullity complies with EU law, including the general principles of EU law.

82 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

1. Article 1(2)(b) of 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

must be interpreted as meaning that a collection of agreements binding a Member State to an economic operator and including a grant agreement and an undertaking to purchase, concluded with a view to building a football stadium, constitutes a ‘public works contract’ within the meaning of that provision, where that collection of agreements creates reciprocal obligations between that State and that economic operator, which include the obligation to construct that stadium in accordance with the conditions specified by that State and a unilateral option in favour of that economic operator corresponding to an obligation on the part of that State to purchase that stadium, and grants the same economic operator State aid recognised by the European Commission as being compatible with the internal market.

2. 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, as amended by Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014, and Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC,

must be interpreted as meaning that they do not preclude the application, on the basis of a plea of nullity raised by the contracting authority, of national legislation which provides that a contract concluded in breach of the rules on public procurement is to be declared null and void ex tunc, provided that, in the case of a public contract falling within the material scope of Directive 2014/24, the legislation providing for such a plea of nullity complies with EU law, including the general principles of EU law.

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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) >> NFS (Public procurement of works, supplies and services - Directive 2004/18/EC - Concept of 'public works contracts' - Judgment) [2024] EUECJ C-28/23 (17 October 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/C2823.html Cite as: EU:C:2024:893, [2024] EUECJ C-28/23, ECLI:EU:C:2024:893

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