Club Hotel Loutraki AE and Others v Ethnico Symvoulio Radiotileorasis and Ypourgos Epikrateias (C-145/08) and Aktor Anonymi Techniki Etaireia (Aktor ATE) v Ethnico Symvoulio Radiotileorasis (C-149/08).

• Jurisdiction: European Union
• Celex Number: 62008CC0145
• ECLI: ECLI:EU:C:2009:668
• Docket Number: C-149/08,C-145/08
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 29 October 2009

OPINION OF ADVOCATE GENERAL

Sharpston

delivered on 29 October 2009 (1)

Joined Cases C‑145/08 and C‑149/08

Club Hotel Loutraki AE

Athinaïki Techniki AE

Evangelos Marinakis

v

Ethniko Simvoulio Radiotileorasis

Ipourgos Epikratías

and

Aktor ATE

v

Ethniko Simvoulio Radiotileorasis

(References for a preliminary ruling from the Simvoulio tis Epikratias (Greece))

(Public procurement – Contract comprising a transfer of shares and a service element – Classification – Review procedures for the award of contracts – National rule precluding individual appeals by members of an ad hoc consortium lacking legal personality – Change in case-law)

Introduction

1. These two factually and procedurally complex cases, which have been joined by the Court, raise questions of Community public procurement law concerning, in particular, the Remedies Directive (2) and the Services Directive. (3)

2. The ultimate issue in both cases concerns the admissibility of an action, brought by an individual member of an ad hoc consortium without legal personality which was unsuccessful in its bid for a contract, seeking annulment of a decision taken in the course of an award procedure.

3. The Court has already held that the Remedies Directive does not preclude a national rule to the effect that, where the members of such a consortium wish to bring an action against the decision awarding the contract, they must all act together and the action must be admissible in respect of each of them individually. (4)

4. However, the situation in the present cases has the added features that the decision challenged is not the final award but a preliminary decision on eligibility to be awarded the contract, taken not by the contracting authority but by a distinct regulatory authority, and that the decision is of specific relevance to only one member of the consortium and/or its annulment is sought with a view not to obtaining the final award but to being able to seek damages in respect of alleged irregularities in the decision. The issue is further complicated by the fact that national case-law has changed during the course of the proceedings, so that an action which might initially have been admissible can no longer be admissible.

5. Those issues are raised in relation to the Remedies Directive. The applicability of that directive is dependent on a contract’s falling within the scope of, inter alia, the Services Directive or the Works Directive. (5) Its applicability is not in doubt in the second case, where the contract is agreed to be subject to the Works Directive. It is, however, less certain in the first case, where the Services Directive may or may not be applicable, depending on whether the award in question is classified as a service contract or a service concession (which would not fall within its scope).

6. A prior question in the first case is therefore how to classify the contract in issue, namely, a mixed contract in which: a public authority sells 49% of the shares in a public casino at a price offered by the highest bidder, to whom it hands over management of the casino and the right to appoint the majority of its directors; that management is remunerated by a percentage of the operating profits; the successful bidder undertakes to implement an improvement and modernisation plan; and the public authority, if it operates any other casino in future within the region concerned, undertakes to compensate the successful bidder.

7. A further issue concerns the extent to which the availability of the remedy in question may be required by fundamental rules and principles of Community law, even if the Remedies Directive does not apply.

Legislative background

Community legislation

The Services Directive (92/50)

8. Article 1(a) defines public service contracts as

‘contracts for pecuniary interest concluded in writing between a service provider and a contracting authority’

to the exclusion of, in particular, public supply contracts and public works contracts, and contracts awarded in the water, energy, transport and telecommunications sectors, all of which are governed by other directives. A number of other types of contract, defined by their subject-matter, are also excluded, but they do not appear relevant for present purposes. Under Article 1(b), contracting authorities are defined as

‘the State, regional or local authorities, bodies governed by public law, associations formed by one or more of such authorities or bodies governed by public law’

and, under Article 1(c), a service provider is

‘any natural or legal person, including a public body, which offers services’.

9. Article 2 provides that, if a public contract is intended to cover both supplies and services, it is to fall within the scope of the directive if the value of the services exceeds that of the products.

10. Article 3(1) requires contracting authorities to apply procedures adapted to the provisions of the directive, and Article 3(2) requires them to ensure that there is no discrimination between service providers.

11. Article 8 stipulates that contracts for services listed in Annex I A (6) are to be awarded in accordance with the provisions of Titles III to VI, (7) while, under Article 9, contracts for services listed in Annex I B are to be awarded in accordance with Articles 14 and 16, which are in Titles IV and V respectively. Under Article 10, contracts for services listed in both annexes are to be awarded in accordance with the provisions of Titles III to VI where the value of the services listed in Annex I A is greater than the value of those listed in Annex I B and, in other cases, in accordance with Articles 14 and 16.

12. Article 14 concerns, essentially, technical specifications to be included in the general or contractual documents in each case, and Article 16 concerns publication of a notice of the award of a contract.

13. None of the services listed in Annex I A appears relevant to the question of classification raised in the first of the present cases. Annex I B, however (to which only Articles 14 and 16 apply), includes (17) ‘Hotel and restaurant services’, (26) ‘Recreational, cultural and sporting services’ and (27) ‘Other services’. It is common ground that the services in issue fall within one or more of those categories.

14. Article 26(1) provides: ‘Tenders may be submitted by groups of service providers. These groups may not be required to assume a specific legal form in order to submit the tender; however, the group selected may be required to do so when it has been awarded the contract.’ (8)

The Remedies Directive (89/665)

15. Although the title of the Remedies Directive still refers only to public supply and public works contracts, it was none the less amended by the Services Directive to cover contracts falling within the scope of the latter.

16. Following that amendment, (9) Article 1 provides:

‘1. The Member States shall take the measures necessary to ensure that, as regards contract award procedures falling within the scope of [inter alia, the Works and Services Directives], 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 the following Articles and, in particular, Article 2(7) on the grounds that such decisions have infringed Community law in the field of public procurement or nation[al] rules implementing that law.

2. Member States shall ensure that there is no discrimination between undertakings claiming injury in the context of a procedure for the award of a contract as a result of the distinction made by this Directive between national rules implementing Community law and other national rules.

3. The 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 public supply or public works contract and who has been or risks being harmed by an alleged infringement. In particular, the Member States may require that the person seeking the review must have previously notified the contracting authority of the alleged infringement and of his intention to seek review.’

17. Article 2 provides, in particular:

‘1. The Member States shall ensure that the measures taken concerning the review procedures specified in Article 1 include provision for the powers to:

(a) take, at the earliest opportunity and by way of interlocutory procedures, interim measures with the aim of correcting the alleged infringement or preventing further damage to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a public contract or the implementation of any decision taken by the contracting authority;

(b) either set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discriminatory technical, economic or financial specifications in the invitation to tender, the contract documents or in any other document relating to the contract award procedure;

(c) award damages to persons harmed by an infringement.

…

5. The Member States may provide that where damages are claimed on the grounds that a decision was taken unlawfully, the contested decision must first be set aside by a body having the necessary powers.

6. The effects of the exercise of the powers referred to in paragraph 1 on a contract concluded subsequent to its award shall be determined by national law.

Furthermore, except where a decision must be set aside prior to the award of damages, a Member State may provide that, after the conclusion of a contract following its award, the powers of the body responsible for the review procedures shall be limited to awarding damages to any person harmed by an infringement.

7. The Member States shall ensure that decisions taken by bodies...