Czech Republic v European Commission.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:493
• Docket Number: C-862/19
• Date: 17 June 2021
• Celex Number: 62019CJ0862
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Fifth Chamber)

17 June 2021 (*)

(Appeal – European Social Fund (ESF) – European Regional Development Fund (ERDF) – Partial cancellation of assistance for operational programmes in the Czech Republic – Directive 2004/18/EC – Article 16(b) – Specific exclusion – Public service contracts relating to programme material intended for broadcasting)

In Case C‑862/19 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 26 November 2019,

Czech Republic, represented by M. Smolek, O. Serdula, J. Vláčil and I. Gavrilová, acting as Agents,

appellant,

the other parties to the proceedings being:

European Commission, represented by P. Ondrůšek and P. Arenas, acting as Agents,

defendant at first instance,

Republic of Poland,

intervener at first instance,

THE COURT (Fifth Chamber),

composed of E. Regan, President of the Chamber, M. Ilešič, E. Juhász (Rapporteur), C. Lycourgos and I. Jarukaitis, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 29 October 2020,

gives the following

Judgment

1 By its appeal, the Czech Republic seeks to have set aside the judgment of the General Court of the European Union of 12 September 2019, Czech Republic v Commission (T‑629/17, not published, EU:T:2019:596; ‘the judgment under appeal’), by which the General Court dismissed its action for annulment of Commission Implementing Decision C(2017) 4682 final of 6 July 2017 cancelling part of the European Social Fund assistance for the operational programme ‘Education for Competitiveness’ under the ‘Convergence’ and ‘Regional Competitiveness and Employment’ objectives in the Czech Republic and part of the European Regional Development Fund assistance for the operational programmes ‘Research and Development for Innovations’ under the ‘Convergence’ objective in the Czech Republic and ‘Technical Assistance’ under the ‘Convergence’ and ‘Regional Competitiveness and Employment’ objectives in the Czech Republic (‘the decision at issue’).

Legal context

Directive 92/50/EEC

2 Article 1(a)(iv) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1), which was repealed by 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), provided:

‘For the purposes of this Directive:

(a) public service contracts shall mean contracts for pecuniary interest concluded in writing between a service provider and a contracting authority, to the exclusion of:

…

(iv) contracts for the acquisition, development, production or co-production of programme material by broadcasters and contracts for broadcasting time’.

Directive 2004/18

3 Recital 25 of Directive 2004/18, repealed by 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), but which is, in the present case, applicable ratione temporis, stated:

‘The awarding of public contracts for certain audiovisual services in the field of broadcasting should allow aspects of cultural or social significance to be taken into account which render application of procurement rules inappropriate. For these reasons, an exception must therefore be made for public service contracts for the purchase, development, production or co-production of off-the-shelf programmes and other preparatory services, such as those relating to scripts or artistic performances necessary for the production of the programme and contracts concerning broadcasting times. However, this exclusion should not apply to the supply of technical equipment necessary for the production, co-production and broadcasting of such programmes. A broadcast should be defined as transmission and distribution using any form of electronic network.’

4 Article 16(b) of Directive 2004/18 provided:

‘This Directive shall not apply to public service contracts for:

…

(b) the acquisition, development, production or co-production of programme material intended for broadcasting by broadcasters and contracts for broadcasting time’.

Directive 2014/24

5 Article 10(b) of Directive 2014/24 provides:

‘This Directive shall not apply to public service contracts for:

…

(b) the acquisition, development, production or co-production of programme material intended for audiovisual media services or radio media services, that are awarded by audiovisual or radio media service providers, or contracts for broadcasting time or programme provision that are awarded to audiovisual or radio media service providers. …’

Background to the dispute and the decision at issue

6 The background to the dispute is set out in paragraphs 1 to 6 of the judgment under appeal. For the purposes of the present proceedings, it may be summarised as follows.

7 By Decisions C(2007) 5113 of 12 October 2007, C(2007) 6920 of 27 December 2007 and C(2008) 5344 of 25 September 2008, the European Commission adopted, respectively, the operational programme ‘Education for Competitiveness’, the operational programme ‘Research and Development for Innovations’ and the operational programme ‘Technical Assistance’, submitted by the Czech Republic pursuant to Article 32 of Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 (OJ 2006 L 210, p. 25).

8 From 14 to 16 April 2014, the Commission carried out an audit of public contracts for broadcasting services co-financed by the Czech Republic using resources of the European Regional Development Fund (ERDF) and the European Social Fund (ESF), in the context of, inter alia, those operational programmes. In the audit report, the Commission noted that four of those public contracts had been awarded directly, without publication of a contract notice. The Commission took the view that such a direct award was not permitted, since those contracts could not be covered by the exclusion relating to contracts for ‘the acquisition, development, production or co-production of programme material intended for broadcasting by broadcasters’ provided for in Article 16(b) of Directive 2004/18 (‘the exclusion at issue’). In particular, the four contracts at issue had been awarded by the Ministry of Regional Development and by the Ministry of Education, Youth and Sport, whereas, according to the Commission, that exclusion applied only to contracting authorities which were broadcasters.

9 Following a financial correction procedure initiated by the Commission on 17 June 2016, in the context of which the Czech Republic argued that the exclusion at issue applied not only to broadcasters but also to all contracting authorities, the Commission adopted the decision at issue, cancelling part of the ESF assistance for the operational programme ‘Education for Competitiveness’ under the ‘Convergence’ and ‘Regional competitiveness and employment’ objectives in the Czech Republic and part of the ERDF assistance for the operational programmes ‘Research and Development for Innovations’ under the ‘Convergence’ objective in the Czech Republic and ‘Technical Assistance’ under the ‘Convergence’ and ‘Regional Competitiveness and Employment’ objectives in the Czech Republic. By the decision at issue, the Commission adopted financial corrections with regard to the Czech Republic.

The procedure before the General Court and the judgment under appeal

10 By application lodged at the Registry of the General Court on 18 September 2017, the Czech Republic brought an action for annulment of the decision at issue. The Commission contended that the General Court should dismiss that action as unfounded. In the proceedings before the General Court, the Republic of Poland intervened in support of the form of order sought by the Czech Republic.

11 In support of its action at first instance, the Czech Republic raised a single plea in law, alleging...