SHARENGO najem in zakup vozil d.o.o. v Mestna občina Ljubljana.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:868
• Date: 10 November 2022
• Docket Number: C-486/21
• Celex Number: 62021CJ0486
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Eighth Chamber)

10 November 2022 (*)

(Reference for a preliminary ruling – Public system for the rental and shared use of electric cars – Distinction between the concepts of ‘services concessions’ and ‘public supply contracts’ – Directive 2014/23/EU – Article 5(1)(b) – Article 20(4) – Concept of ‘mixed contracts’ – Article 8 – Determining the value of a services concession – Criteria – Article 27 – Article 38 – Directive 2014/24/EU – Article 2(1), points 5 and 8 – Implementing Regulation (EU) 2015/1986 – Annex XXI – Possibility of imposing a condition concerning the registration of a specific professional activity under national law – Impossibility of imposing that condition on all members of a temporary business association – Regulation (EC) No 2195/2002 – Article 1(1) – Obligation to refer exclusively to the ‘Common Procurement Vocabulary’ in concession documents – Regulation (EC) No 1893/2006 – Article 1(2) – Impossibility of referring to the ‘NACE Rev. 2’ nomenclature in the concession documents)

In Case C‑486/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Državna revizijska komisija za revizijo postopkov oddaje javnih naročil (National Commission for the Review of Public Procurement Procedures, Slovenia), made by decision of 2 August 2021, received at the Court on 9 August 2021, in the proceedings

SHARENGO najem in zakup vozil d.o.o.

v

Mestna občina Ljubljana,

THE COURT (Eighth Chamber),

composed of N. Piçarra, acting for the President of the Chamber, N. Jääskinen and M. Gavalec (Rapporteur), Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Mestna občina Ljubljana, by R. Kokalj, odvetnik,

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

– the Austrian Government, by A. Posch, acting as Agent,

– the European Commission, by U. Babovič, M. Kocjan, A. Kraner, P. Ondrůšek and G. Wils, acting as Agents,

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

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 3(1), Article 5(1)(b), Article 8(1) and (2) and Article 38(1) of Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p. 1), as amended by Commission Delegated Regulation (EU) 2019/1827 of 30 October 2019 (OJ 2019 L 279, p. 23) (‘Directive 2014/23’), of Article 2(1), points 5 and 9, the third subparagraph of Article 3(4), Article 4(b) and (c), Article 18(1) and Article 58(1) and (2) 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), as amended by Commission Delegated Regulation (EU) 2019/1828 of 30 October 2019 (OJ 2019 L 279, p. 25) (‘Directive 2014/24’), of Regulation (EC) No 2195/2002 of the European Parliament and of the Council of 5 November 2002 on the Common Procurement Vocabulary (CPV) (OJ 2002 L 340, p. 1), of Annex I to Regulation (EC) No 1893/2006 of the European Parliament and of the Council of 20 December 2006 establishing the statistical classification of economic activities NACE Revision 2 and amending Council Regulation (EEC) No 3037/90 as well as certain EC Regulations on specific statistical domains (OJ 2006 L 393, p. 1), as well as of Annex XXI to Commission Implementing Regulation (EU) 2015/1986 of 11 November 2015 establishing standard forms for the publication of notices in the field of public procurement and repealing Implementing Regulation (EU) No 842/2011 (OJ 2015 L 296, p. 1 and corrigendum OJ 2017 L 172, p.36).

2 The request has been made in proceedings between SHARENGO najem in zakup vozil d.o.o. (‘Sharengo’) and Mestna občina Ljubljana (Urban municipality of Ljubljana, Slovenia) (‘Municipality of Ljubljana’) concerning the publication by the latter of a call for tenders intended to select a concessionaire with a view to implementing a project for the establishment and management of a public system for the rental and sharing of electric vehicles in the territory of that municipality.

Legal context

European Union law

Directive 2014/23

3 Recitals 1, 4, 8, 18, 20 and 52 of Directive 2014/23 state:

‘(1) The absence of clear rules at Union level governing the award of concession contracts gives rise to legal uncertainty and to obstacles to the free provision of services and causes distortions in the functioning of the internal market. As a result, economic operators, in particular small and medium-sized enterprises (SMEs), are being deprived of their rights within the internal market and miss out on important business opportunities, while public authorities may not find the best use of public money so that Union citizens benefit from quality services at best prices. An adequate, balanced and flexible legal framework for the award of concessions would ensure effective and non-discriminatory access to the market to all Union economic operators and legal certainty, favouring public investments in infrastructures and strategic services to the citizen. Such a legal framework would also afford greater legal certainty to economic operators and could be a basis for and means of further opening up international public procurement markets and boosting world trade. Particular importance should be given to improving the access opportunities of SMEs throughout the Union concession markets.

…

(4) The award of public works concessions is presently subject to the basic rules 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)]; while the award of services concessions with a cross-border interest is subject to the principles of the Treaty on the Functioning of the European Union (TFEU), and in particular the principles of free movement of goods, freedom of establishment and freedom to provide services, as well as to the principles deriving therefrom such as equal treatment, non-discrimination, mutual recognition, proportionality and transparency. There is a risk of legal uncertainty related to divergent interpretations of the principles of the Treaty by national legislators and of wide disparities among the legislations of various Member States. Such risk has been confirmed by the extensive case-law of the Court of Justice of the European Union which has, nevertheless, only partially addressed certain aspects of the award of concession contracts.

…

(8) For concessions equal to or above a certain value, it is appropriate to provide for a minimum coordination of national procedures for the award of such contracts based on the principles of the TFEU so as to guarantee the opening-up of concessions to competition and adequate legal certainty. Those coordinating provisions should not go beyond what is necessary in order to achieve the aforementioned objectives and to ensure a certain degree of flexibility. Member States should be allowed to complete and develop further those provisions if they find it appropriate, in particular to better ensure compliance with the principles set out above.

…

(18) Difficulties related to the interpretation of the concepts of concession and public contract have generated continued legal uncertainty among stakeholders and have given rise to numerous judgments of the Court of Justice of the European Union. Therefore, the definition of concession should be clarified, in particular by referring to the concept of operating risk. The main feature of a concession, the right to exploit the works or services, always implies the transfer to the concessionaire of an operating risk of economic nature involving the possibility that it will not recoup the investments made and the costs incurred in operating the works or services awarded under normal operating conditions even if a part of the risk remains with the contracting authority or contracting entity. The application of specific rules governing the award of concessions would not be justified if the contracting authority or contracting entity relieved the economic operator of any potential loss, by guaranteeing a minimal revenue, equal or higher to the investments made and the costs that the economic operator has to incur in relation with the performance of the contract. At the same time it should be made clear that certain arrangements which are exclusively remunerated by a contracting authority or a contracting entity should qualify as concessions where the recoupment of the investments and costs incurred by the operator for executing the work or providing the service depends on the actual demand for or the supply of the service or asset.

…

(20) An operating risk should stem from factors which are outside the control of the parties. Risks such as those linked to bad management, contractual defaults by the economic operator or to instances of force majeure are not decisive for the purpose of classification as a concession, since those risks are inherent in every contract, whether it be a public procurement contract or a concession. An operating risk should be understood as the risk of exposure to the vagaries of the market, which may consist of either a demand risk or a supply risk, or both a demand and supply risk. Demand risk is to be understood as the risk on actual demand for the works or services which are the object of the contract. Supply risk is to be understood as the risk on the provision of the works or services which are the object of the contract, in particular the risk that the provision of the services will not match demand. For the purpose of assessment of the operating risk the net...