Opinion of Advocate General Emiliou delivered on 15 September 2022.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:694
• Date: 15 September 2022
• Celex Number: 62021CC0292
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

EMILIOU

delivered on 15 September 2022(1)

Case C‑292/21

Administración General del Estado,

Confederación Nacional de Autoescuelas (CNAE),

UTE CNAE-ITT-FORMASTER-ECT

v

Asociación Unión para la Defensa de los Intereses Comunes de las Autoescuelas (AUDICA),

Ministerio Fiscal

(Request for a preliminary ruling from the Tribunal Supremo (Supreme Court, Spain))

(Reference for a preliminary ruling – Internal market – Directive 2006/123/EC – Road-safety awareness and training courses for the purposes of the recovery of driving licence points – Article 2(2)(d) – Scope – Exclusion – ‘Services in the field of transport’ – Freedom of establishment – Public service concession – Conditions for the award of the public service concession – Article 15 – Service of general economic interest – Proportionality – National requirements going beyond what is necessary to achieve the objective pursued)

I. Introduction

1. By the present request for a preliminary ruling, the Tribunal Supremo (Supreme Court, Spain) enquires as to the compatibility with EU law of a national measure pursuant to which contracts for the provision of road-safety awareness and training courses designed to enable drivers to recover points on their driving licence must be awarded as public service concessions. Only one public service concession is available in each of the five geographical zones delineated for that purpose across the national territory (with the exception of two regions, Catalonia and the Basque country, which are subject to a different regime). The successful concession holder for each zone is the only entity authorised to provide such courses in the corresponding area.

2. The dispute before that court concerns, in essence, whether such a measure is contrary to the provisions of the Services Directive, (2) which establishes general provisions facilitating the exercise of the fundamental freedoms which are protected by Article 49 TFEU (freedom of establishment) and Article 56 TFEU (free movement of services). (3) In order to answer that question, it is necessary, first, to determine whether that directive applies to the present case.

3. In short, for the reasons given below, I propose that the Court answer that preliminary question in the affirmative. I am afraid, however, that the national measure at issue in the main proceedings restricts the freedom to provide services in a way that does not respect fully the requirements of that directive.

II. Legal framework

A. European Union law

1. The Services Directive

4. Recital 17 of the Services Directive states, in essence, that services of general economic interest (SGEIs) fall within the scope of that directive unless they are services in the field of transport.

5. Recital 40 of the Services Directive explains that the concept of ‘overriding reasons relating to the public interest’ to which reference is made in, inter alia, Article 15(3) of that directive, ‘has been developed by the Court of Justice in its case-law in relation to [Articles 49 and 56 TFEU] and may continue to evolve’. That concept covers a number of grounds, including road safety.

6. Article 2 of the Services Directive, entitled ‘Scope’, provides, in paragraph 1 thereof, that that directive applies to services supplied by providers established in a Member State, subject to certain exceptions laid down in Article 2(2) of the directive. According to Article 2(2)(d) of that directive, it does not apply to ‘services in the field of transport … falling within the scope of [Title VI TFEU]’.

7. Article 15 of the Services Directive, entitled ‘Requirements to be evaluated’, provides as follows:

‘1. Member States shall examine whether, under their legal system, any of the requirements listed in paragraph 2 are imposed and shall ensure that any such requirements are compatible with the conditions laid down in paragraph 3. Member States shall adapt their laws, regulations or administrative provisions so as to make them compatible with those conditions.

2. Member States shall examine whether their legal system makes access to a service activity or the exercise of it subject to compliance with any of the following non-discriminatory requirements:

(a) quantitative or territorial restrictions, in particular in the form of limits fixed according to population or of a minimum geographical distance between providers;

…

(d) requirements, other than those concerning matters covered by Directive 2005/36/EC [of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ 2005 L 255, p. 22)] or provided for in other Community instruments, which reserve access to the service activity in question to particular providers by virtue of the specific nature of the activity;

…

3. Member States shall verify that the requirements referred to in paragraph 2 satisfy the following conditions:

(a) non-discrimination: requirements must be neither directly nor indirectly discriminatory according to nationality nor, with regard to companies, according to the location of the registered office;

(b) necessity: requirements must be justified by an overriding reason relating to the public interest;

(c) proportionality: requirements must be suitable for securing the attainment of the objective pursued; they must not go beyond what is necessary to attain that objective and it must not be possible to replace those requirements with other, less restrictive measures which attain the same result.

4. Paragraphs 1, 2 and 3 shall apply to legislation in the field of services of general economic interest only in so far as the application of these paragraphs does not obstruct the performance, in law or in fact, of the particular task assigned to them.

…’

2. Directive 2014/23/EU (4)

8. Article 5(1)(b) of Directive 2014/23/EU defines ‘services concession’ as ‘a contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or contracting entities entrust the provision and the management of services … to one or more economic operators, the consideration of which consists either solely in the right to exploit the services that are the subject of the contract or in that right together with payment’.

9. Article 8 of Directive 2014/23, as applicable at the material time, provided that the directive ‘shall apply to concessions the value of which is equal to or greater than EUR 5 186 000’.

B. National law

10. The Services Directive was transposed into Spanish law by Ley 17/2009, sobre el libre acceso a las actividades de servicios y su ejercicio (Law 17/2009 on free access to service activities and their exercise), of 23 November 2009. (5) Article 3 of that law defines ‘service’ as ‘any self-employed economic activity, normally carried out for remuneration, referred to in [Article 57 TFEU]’. Article 5 of that law indicates that access to a service activity may be subject to authorisation when three conditions are met: those of non-discrimination, necessity and proportionality.

11. Pursuant to Ley 17/2005, por la que se regula el permiso y la licencia de conducción por puntos y se modifica el texto articulado de la ley sobre tráfico, circulación de vehículos a motor y seguridad vial (Law 17/2005 governing the driving licence and driving licence with points and amending the law on traffic, motor vehicle traffic and road safety), of 19 July 2005, (6) the contract to run courses for the recovery of driving licence points must be awarded by means of a public service concession, in accordance with the law governing contracts awarded by public authorities.

12. Orden INT/2596/2005, por la que se regulan los cursos de sensibilización y reeducación vial para los titulares de un permiso o licencia de conducción (Order INT/2596/2005 on road-safety awareness and training courses for holders of a driving licence ), of 28 July 2005, (7) implements Law 17/2005. Paragraph 12 of that order provides that ‘control and inspection of road-safety awareness and training courses shall be carried out in accordance with the technical specifications set out in the administrative concession contract’.

III. Facts, national procedure and the question referred

13. In 2014, the Dirección General de Tráfico (Directorate-General for Traffic, Spain) announced the tendering procedure ‘Concession for the management of road-safety awareness and training courses for the recovery of driving licence credits: five lots’. Those courses were designed for drivers who had lost points on their driving licences as a result of committing traffic offences.

14. For the purposes of that tendering procedure, the national territory (apart from Catalonia and the Basque country) was divided into five zones, each corresponding to a procurement lot. Only one contract was available for each lot and each contract had to be awarded as a public service concession. The successful tenderer for each lot would become the only entity authorised to provide the courses at issue in the corresponding zone.

15. The call for tenders was challenged by the Asociación Unión para la Defensa de los Intereses Comunes de las Autoescuelas (AUDICA) (Association for the Protection of the Common Interests of Driving Schools (AUDICA), Spain) before the Tribunal Administrativo Central de Recursos Contractuales (Central Administrative Court for Contractual Appeals, Spain). AUDICA argued that the fact that the contracts had to be public service concessions was contrary to the freedom to provide services.

16. The Abogado del Estado (Counsel for the State, Spain), on behalf of the Directorate-General for Traffic, appeared in the proceedings as defendant, as did the consortium composed of the Confederación Nacional de Autoescuelas (CNAE) and three other entities (FORMASTER, ECT and ITT) as co-defendant (‘the consortium’ or ‘CNAE and others’). The consortium had been successful in the tendering...