Mehiläinen Oy and Terveystalo Healthcare Oy v Oulun kaupunki.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2010:807
• Docket Number: C-215/09
• Celex Number: 62009CJ0215
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 22 December 2010

Case C-215/09

Mehiläinen Oy and Terveystalo Healthcare Oy, formerly Suomen Terveystalo Oyj

v

Oulun kaupunki

(Reference for a preliminary ruling from the markkinaoikeus)

(Public service contracts – Directive 2004/18/EC – Mixed contract – Contract concluded between a contracting authority and a private company independent of it – Establishment, on an equal basis, of a joint venture to provide health care services – Undertaking by the partners to purchase health care services for their staff from the joint venture for a transitional period of four years)

Summary of the Judgment

Approximation of laws – Procedures for the award of public works contracts, public supply contracts and public service contracts – Directive 2004/18 – Scope

(European Parliament and Council Directive 2004/18)

Directive 2004/18 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, when a contracting authority concludes with a private company independent of it a contract establishing a joint venture in the form of a share company, the purpose of which is to provide occupational health care and welfare services, the award by the contracting authority of the contract relating to the services for its own staff, the value of which exceeds the threshold laid down by that directive, and which is severable from the contract establishing that company, must be made in accordance with the provisions of that directive applicable to the services in Annex II B thereof.

Although the creation, by a contracting authority and a private economic operator, of a joint enterprise is not covered as such by Directive 2004/18, a capital operation cannot, in reality, conceal the award to a private partner of contracts which might be considered to be public contracts or concessions. Furthermore, the fact that a private entity and a contracting entity cooperate within a mixed capital entity cannot justify failure to observe the provision or public procurement when awarding such a contract to that private entity or that mixed capital entity. Thus, where the need to conclude such a mixed contract with a single partner is not objectively demonstrated and the component of the mixed contract consisting in the undertaking by the contracting authority to purchase health care services for its staff from the joint venture is severable from that contract, the relevant provisions of Directive 2004/18 are applicable to the award of that aspect.

(see paras 33-34, 45-47, operative part)

JUDGMENT OF THE COURT (Third Chamber)

22 December 2010 (*)

(Public service contracts – Directive 2004/18/EC – Mixed contract – Contract concluded between a contracting authority and a private company independent of it – Establishment, on an equal basis, of a joint venture to provide health care services – Undertaking by the partners to purchase health care services for their staff from the joint venture for a transitional period of four years)

In Case C‑215/09,

REFERENCE for a preliminary ruling under Article 234 EC, made by the Markkinaoikeus (Finland), by decision of 12 June 2009, received at the Court on 15 June 2009, in the proceedings

Mehiläinen Oy,

Terveystalo Healthcare Oy, formerly Suomen Terveystalo Oyj,

v

Oulun kaupunki,

THE COURT (Third Chamber),

composed of K. Lenaerts, President of the Chamber, E. Juhász (Rapporteur), G. Arestis, J. Malenovský and T. von Danwitz, Judges,

Advocate General: J. Mazák,

Registrar: N. Nanchev, Administrator,

having regard to the written procedure and further to the hearing on 17 June 2010,

after considering the observations submitted on behalf of:

– Mehiläinen Oy and Terveystalo Healthcare Oy (formerly Suomen Terveystalo Oyj), by A. Laine and A. Kuusniemi‑Laine, asianajaja,

– Oulun kaupunki, by S. Rasinkangas and I. Korpinen, asianajaja,

– the Finnish Government, by A. Guimaraes‑Purokoski and M. Pere, acting as Agents,

– the Czech Government, by M. Smolek, acting as Agent,

– the European Commission, by E. Paasivirta, C. Zadra and D. Kukovec, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of the relevant provisions, in the light of the circumstances of the dispute in the main proceedings, 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 2001 L 134, p. 114).

2 The reference was made in the course of proceedings between Mehiläinen Oy and Terveystalo Healthcare Oy, formerly Suomen Terveystalo Oyj, limited companies incorporated under Finnish law, and Oulun kaupunki (City of Oulu), concerning the legal classification, from the point of view of the European Union rules on public procurement, of a contract concluded between Oulun kaupunki and ODL Terveys Oy, a private company independent of Oulun kaupunki (‘the private partner’), concerning the creation of a joint enterprise, ODL Oulun Työterveys Oy (‘the joint enterprise’).

Legal context

European Union legislation

3 In accordance with the definitions contained in Article 1(2) of Directive 2004/18:

‘(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.

…

(d) “Public service contracts” are public contracts other than public works or supply contracts having as their object the provision of services referred to in Annex II.

…’

4 Article 2 of Directive 2004/18, entitled ‘Principles of awarding contracts’, provides:

‘Contracting authorities shall treat economic operators equally and non‑discriminatorily and shall act in a transparent way.’

5 Pursuant to Article 7 of that directive, entitled ‘Threshold amounts for public contracts’, as amended by Commission Regulation (EC) No 1422/2007 of 4 December 2007 amending Directives 2004/17/EC and 2004/18/EC of the European Parliament and of the Council in respect of their application thresholds for the procedures for the award of contracts (OJ 2007 L 317, p. 34), Directive 2004/18 applies to public service contracts awarded by contracting authorities other than central government authorities, which have a value exclusive of value-added tax (VAT) estimated to be equal to or greater than EUR 206 000.

6 In accordance with Annex II B of Directive 2004/18, health care services fall within Category 25 thereof entitled ‘Health and social services’.

7 Under Article 21 of Directive 2004/18:

‘Contracts which have as their object services listed in Annex II B shall be subject solely to Article 23 and Article 35(4).’

8 Article 23 of Directive 2004/18, in Chapter IV thereof, entitled ‘Specific rules governing specifications and contract documents’ relates to technical specifications in contract documentation, and Article 35(4), which appears in Chapter VI of that directive, entitled ‘Rules on advertising and transparency’, refers to the contracting authorities’ obligations to give notice of the results of the award procedure.

National legislation

9 Finnish law 1383/2001 on occupational health care (Työterveyshuoltolaki) requires public and private employers to protect the health of their employees at work.

10 According to the first subparagraph of paragraph 3 of that law, occupational health care is the activity...