Clarification du « In house » : une activité imposée par une autorité publique non actionnaire n’est pas une activité in house

Clarification of the "In House": an activity imposed by a non-shareholder public authority is not an in house activity

by gmorales on 8 December 2016 | Category: Public markets
Clarification du « In house » : une activité imposée par une autorité publique non actionnaire n’est pas une activité in house Clarification du « In house » : une activité imposée par une autorité publique non actionnaire n’est pas une activité in house

CJEU December 8, 2016, Undis Servizi Srl v / Comune di Sulmona, aff. C-553/15

An Italian municipality awarded a service contract, without prior call for competition, to Cogesa, a wholly public-owned company owned by several municipalities, including the one concerned by the dispute. While this service contract had not yet been concluded, the municipalities holding the capital of Cogesa entered into an agreement with a view to jointly exercising a control similar to that exercised over their own services. A third company interested in the service contract lodged an appeal before the Italian courts against the decision awarding the service contract and against the inter-municipal agreement. The Italian Council of State has referred two preliminary questions to the CJEU, which gives it the opportunity to clarify one of the conditions of the "in house" regime, under the former Markets Directive (Directive 2004/18, replaced by Directive 2014/24 / EU).

Rule n ° 1: An activity imposed by a non-shareholder public authority must be considered as exercised on behalf of third parties

One of the conditions of the in-house regime, which allows a contracting authority to conclude a public contract or a concession without prior call for competition with a third party entity, is that the entity carries out most of its activity with this power. contracting authority or with the contracting authorities controlling it. In this case, Cogesa's activity concerned waste management for its shareholders, but also for other Abbruzes municipalities, because of the obligation imposed on it by the Region to treat and recover waste. certain municipalities that did not participate in its capital. The first preliminary question was therefore whether, in order to determine whether that condition was fulfilled by Cogesa, its activity for non-shareholder municipalities imposed by a public authority itself not a shareholder should be taken into account or not. The CJEU considers in this respect that " any activity of the awarding entity that is dedicated to persons other than those who hold it, ie to persons who have no control relationship with that entity, were-The authoritiespublic, must to be considerederas being exercised on behalf of third parties ". It excludes the fact that this activity was imposed by a public authority, because it was not a shareholder and had no control over Cogesa. In addition, the Court considers that the national court must take into consideration all the circumstances of the case, both qualitative and quantitative. In that regard, it takes the view that the relevant turnover is that which the entity carries out pursuant to the award decisions taken by the contracting authority or authorities which control it.

Rule 2: Activities prior to the establishment of a similar control may be taken into consideration

In addition, Cogesa had already carried out activities for the common shareholders before the conclusion of the agreement establishing a similar control of these. The Italian Council of State therefore asks the CJEU whether an activity carried out by the entity before the condition of the analogous control is fulfilled may be taken into account to determine whether the latter carries out the main part of its activity with the the contracting authority (s) who controls it. In this respect, the Court replies that these activities must certainly be taken into account when they still exist at the time of a public contract award ". In addition, it considers that activities completed before the condition of similar control is fulfilled may also be relevant, as they may be indicative of the importance of the activity that the entity intends to pursue for its shareholders after that their similar control took effect.


JUDGMENT OF THE COURT (Fourth Chamber)

December 8, 2016 (*)

" Reference for a preliminary ruling - Public service contracts - Award of the contract without binding tendering procedure - In-house allocation - Conditions - Analogous control - Realization of most of the activity - Principal beneficiary company public held by several local authorities - Activity also carried out for non-associated local authorities - Activity imposed by an unaffiliated public authority "

In Case C-553/15,

REFERENCE for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Council of State, Italy), made by decision of 25 June 2015, received at the Court on 26 October 2015, in the procedure

Undis Servizi Srl

against

Comune di Sulmona,

in the presence of:

Cogesa SpA,

THE COURT (Fourth Chamber),

composed of T. von Danwitz, President of the Chamber, MM. E. Juhász (rapporteur), C. Vajda, Mme K. Jürimäe and M. Lycourgos, Judges,

Advocate General: Mr Campos Sánchez-Bordona,

Registrar: MA Calot Escobar,

having regard to the written procedure,

considering the comments submitted:

  • for Undis Servizi Srl, by Me S. Della Rocca, avvocato,
  • for the Comune di Sulmona, by Mes G. Blandini and M. Fracassi, avvocati,
  • for Cogesa SpA, by Me R. Colagrande, avvocato,
  • for the Italian Government, by Mme G. Palmieri, acting as Agent, assisted by M.me C. Colelli, avvocato dello Stato,
  • for the European Commission, by MM. G. Conte and A. Tokár, acting as Agents,

having regard to the decision taken, after hearing the Advocate General, to hold the case without

makes the present

 

Stop

1- The reference for a preliminary ruling concerns the interpretation of Union law relating to the award of a public contract without a call for tenders procedure, known as an 'in house' award.

2- This request was submitted in the context of a dispute between Undis Servizi Srl (hereinafter 'Undis') and the Comune di Sulmona (municipality of Sulmona, Italy) concerning the direct award of a service contract by this municipality in Cogesa SpA.

The legal framework

Union law

3- 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. ), establishes the regulatory framework applicable to contracts awarded by contracting authorities.

4- Article 1st Directive, entitled 'Definitions', provides in paragraph 2 (a):

" "Public contracts" are contracts for valuable consideration concluded in writing between one or more economic operators and one or more contracting authorities and whose object is the performance of works, the supply of products or the provision of services within the meaning of this Directive. "

5. The regulation of Union law on public procurement, in force at the time of the facts in the main proceedings, did not provide for the possibility of awarding a public contract without the initiation of a public procurement procedure. call for tenders, called "in house" allocation. However, such a possibility had been admitted by the case-law of the Court, which also established the conditions in that regard.

6. In accordance with that case-law, which is henceforth constant, a contracting authority, such as a local authority, is exempted from entering into a public procurement procedure on the condition that it exercises, on the one hand, entity, legally separate from it, a control similar to that which it exercises over its own services and, on the other hand, that this entity carries out most of its activity with the contracting authority or authorities which hold it (cf. , in that sense, judgment of 18 November 1999, Teckal, C-107/98, EU: C: 1999: 562, paragraph 50).

7- Directive 2004/18 has been repealed and replaced by Directive 2014/24 / EU of the European Parliament and of the Council of 26 February 2014 on the award of public contracts and repealing Directive 2004/18 (OJ 2004 L 94, 65). In accordance with Article 91 of Directive 2014/24, the repeal of Directive 2004/18 took effect on 18 April 2016.

Italian law

8 According to the information in the order for reference, there is no provision in Italian law which lays down the conditions to which direct award of public contracts is subject, since national law refers in that regard to Union law.

9- Article 30 of the decreto legislativo n. 267 - Testo unico delle leggi sull'ordinamento degli enti locali (Legislative Decree No 267 - Single text of the Laws on Local Government) of 18 August 2000 (ordinary supplement to GURI No 162 of 28 September 2000) , provides:

"

  1. In order to co-ordinate specified functions and services, local authorities may conclude appropriate agreements between themselves.
  2. The said conventions must establish the purposes, the duration, the methods of consultation of the contracting authorities, their financial relations and the reciprocal obligations and guarantees.
  3. For the fixed-term management of a specific service or for the realization of a work, the State and the Region, in matters falling within their competence, may provide for mandatory forms of agreement between local authorities, after preparation of a standard regulation.
    [...] »

10 - As stated by the national court, the second sentence of Article 149a (1) of Legislative Decree No. 152 - Standard in materia ambientale (legislative decree n ° 152, relating to the rules in environmental matter), of April 3rd, 2006 (ordinary supplement with the GURI n ° 96, of April 14th, 2006), provides:

" The direct award may be made in favor of fully public companies, which fulfill the conditions prescribed by the European legal order for in-house management and which in any case are held by local authorities in the territory concerned. "

The dispute in the main proceedings and the questions referred for a preliminary ruling

11- The file submitted to the Court shows that, by a decision of 30 September 2014, the municipal council of the municipality of Sulmona awarded the management service of the integrated urban waste cycle to Cogesa, a wholly public-owned company owned by several municipalities in the Regione Abruzzo (Region of Abruzzo, Italy), including the municipality of Sulmona. The latter holds 200 shares out of a total of 1,200 shares in the capital of this company, representing a stake of approximately 16.6 % in this capital.

12- On 30 October 2014, when the service contract with Cogesa had not yet been concluded, the associated territorial collectivities of the latter concluded an agreement with a view to exercising jointly over this entity a control similar to that which they exercise on their own services (hereinafter "the agreement of 30 October 2014").

13- By the integrated environmental authorization n ° 9/11, the Abruzzo Region has made Cogesa oblige, in accordance with the principles of self-sufficiency, proximity and subsidiarity, to treat and valorize the urban waste of certain communes of this region. region that were not associated with this company.

14- Undis, a company interested in the service contract at issue in the main proceedings, brought an action before the Tribunale amministrativo regionale para Abruzzo (Regional Administrative Court of Abruzzo, Italy) against the decision to award that service contract and against the decision to approve the draft intercommunal agreement mentioned in point 12 of this judgment. Invoking the violation of Article 2 of Legislative Decree No. 163 - Codice dei contratti pubblici relativi a lavori, servizi e forniture inattuazione delle direttive 2004/17 / EC e 2004/18 / EC (Legislative Decree No 163, establishing the Code of Public Contracts for works, services and supplies pursuant to Directives 2004/17 / EC and 2004/18 / EC), of 12 April 2006 (ordinary supplement to GURI No 100 of 2 May 2006), as well as Articles 43, 49 and 86 TFEU, Undis claimed that the two conditions required for the service contract to be awarded 'in house' were not met.

15- In particular, Undis argued that the condition that the contracting authority exercises control over the awarding entity, legally separate from it, in a manner similar to that exercised over its own services was not fulfilled. Indeed, the municipality of Sulmona is a minority shareholder of Cogesa, the agreement of 30 October 2014 was concluded after the award decision of the service contract at issue in the main proceedings and the statutes of that company entrust to its social organs a autonomous power, irreconcilable with the notion of "analogous control". Undis added that the condition that the awarded entity carries out most of its activity with the contracting authority or authorities holding it was also not satisfied. In fact, according to Undis, Cogesa's financial statements for the years 2011 to 2013 showed that Cogesa carried out only 50% of its overall business with the associated local authorities, the activity carried out by this company in favor of the municipalities. not associated to be included in this global activity.

16- The Tribunale amministrativo regionale for Abruzzo (Regional Administrative Court of Abruzzo) dismissed the appeal. That court first considered that the condition of analogous control was met by the conclusion of the agreement of 30 October 2014. It then held that the condition relating to the performance of most of the activity was also fulfilled, explaining that, by not taking into account the activity exercised by Cogesa in favor of the non-associated municipalities, that exercised for the associated communes exceeded 90 % of the turnover of this company, the remaining percentage could be considered as an activity all in fact marginal.

17- The Consiglio di Stato (Council of State, Italy), on appeal by Undis, points out that, notwithstanding the fact that Directive 2014/24 is not applicable ratione temporis to the dispute in the main proceedings, the provisions of the Article 12 of this Directive are, in any event, important for the resolution of this dispute.

18- As regards the condition concerning the conduct of most of the activity, the Consiglio di Stato (Council of State) refers to the judgment of 11 May 2006, Carbotermo and Consorzio Alisei (C-340 / 04, EU: C: 2006: 308, paragraph 65), in which the Court held that "the decisive turnover must be considered to be that which the undertaking in question realizes by virtue of the award decisions taken by the supervising community, including the one carried out with users in execution of such decisions ". In light of this case law, the award decisions to be considered in order to ascertain whether this condition is satisfied would therefore be only those directly adopted by the supervising authority. However, an extension of the number of relevant powers could result from Article 12 (2) of Directive 2014/24.

19- The Consiglio di Stato (Council of State) observes, however, that nothing in the said directive indicates that, in order to assess whether the condition in question is satisfied, the powers attributable to local authorities must be taken into account. non-associated public authorities, in the case where these attributions are imposed by a measure of authority of a higher public administration also not associated.

20- In addition, according to the Consiglio di Stato (Council of State), the question arises whether it is appropriate in the dispute in the main proceedings to take into account, in order to check whether the condition relating to the realization of the essential of activity is satisfied, allocations made to the benefit of the public authorities of Cogesa before the conclusion of the agreement of October 30, 2014. The Consiglio di Stato (Council of State) refers in this regard to Article 12, paragraph 5, second paragraph, of Directive 2014/24.

21. In those circumstances, the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

"

  1. In determining whether an entity conducts the bulk of its activity with the community that controls it, should the activity imposed by a non-associated public administration on non-associated public authorities also be taken into account?
  2. In determining whether an entity conducts the bulk of its business with the controlling community, should the allocations to the associated public authorities also be taken into account before the analogous test condition has been fulfilled?

"

The questions referred

22 - As a preliminary point, the facts at issue in the main proceedings, as recalled in paragraphs 11 and 12 of this judgment, predate the expiry, on 18 April 2016, of the deadline for transposition by the Member States of Directive 2014/24. It follows that the questions referred for a preliminary ruling must be assessed ratione temporis in the light of Directive 2004/18 alone as interpreted by the case-law of the Court.

23 In addition, it must be pointed out that the national court does not give any particulars as to the question whether the value of the contract at issue in the main proceedings exceeds the threshold of application of the directive. 2004/18. Nor does the order for reference contain the information necessary to determine whether it is a public service contract or a service concession.

24- It is true that the exception to the application of the rules of Union law where the conditions for in-house award are fulfilled is likely to apply in situations falling within the scope of application Directive 2004/18 only in situations excluded from it (see, to that effect, judgment of 29 November 2012, Econord, C-182/11 and C-183/11, EU: C: 2012: 758, point 26 and the case-law cited). However, in the second case, the application of that exception is relevant to the resolution of the dispute in the main proceedings only in so far as the contract in question is subject to the fundamental rules and general principles of the TFEU, which presupposes that it has a certain cross-border interest (see, to that effect, judgment of 6 October 2016, Tecnoedi Costruzioni, C-318/15, EU: C: 2016: 747, paragraph 19 and the case-law cited).

25- Because of the spirit of cooperation which presides over the relationship between the national courts and the Court of Justice in the context of the preliminary ruling procedure, the absence of such preliminary findings by the national court does not lead to the inadmissibility of the request if, in spite of such a failure, the Court, having regard to the evidence in the case-file, considers that it is in a position to give a useful answer to the national court. Nevertheless, the answer provided by the Court comes into play only subject to the finding by the national court that the conditions for the application of Union law are satisfied (see, by analogy, judgment of 11 December 2014, Azienda local sanitaria No. 5 "Spezzino" and others, C-113/13, EU: C: 2014: 2440, item 48).

26- The Court's answer to the questions referred by the national court is therefore based on the premiss that either Directive 2004/18 applies to the market at issue in the main proceedings or, if that is not the case, this market has a certain cross-border interest, which is the responsibility of this court to verify.

On the first question

27- By this question, the national court essentially asks whether, in the context of the application of the Court's case-law concerning direct awards of so-called 'in house' public contracts, in order to determine whether the contracting entity exercises the bulk of its activity for the contracting authority, including the local authorities that are its partners and who control it, it is appropriate to include in this activity also that imposed on this entity a public authority, not associated with this entity, in favor of local authorities that are not associated with the entity and do not exercise any control over it.

28. In accordance with the case-law of the Court, the main objective of the rules of Union law on public procurement, namely the free movement of goods and services and openness to undistorted competition in all Member States, implies the obligation to apply the rules on public procurement procedures provided for in the relevant directives, where a contracting authority, such as a local authority, intends to conclude a written agreement with a legally distinct entity contract, whether that entity is itself a contracting authority or not (see, to that effect, Teckal, C-107/98, EU: C: 1999: 562, paragraph 51, that of 11 January 2005, Stadt Halle and RPL Lochau, C-26/03, EU: C: 2005: 5, paragraphs 44 and 47).

29- The Court pointed out that any exception to the application of this obligation is of strict interpretation (judgments of 11 January 2005, Stadt Halle and RPL Lochau, C-26/03, EU: C: 2005: 5, paragraph 46 , as well as of 8 May 2014, Datenlotsen Informationssysteme, C-15/13, EU: C: 2014: 303, point 23).

30- Given that a public authority has the possibility to perform the tasks of public interest incumbent upon it by its own means, administrative, technical and other, without having to resort to external entities not belonging to (see, to that effect, judgment of 11 January 2005, Stadt Halle and RPL Lochau, C-26/03, EU: C: 2005: 5, paragraph 48), the Court justified the recognition of the exception in the so-called "in house" attributions by the particular internal link that exists, in such a case, between the contracting authority and the awarding entity, even if the latter is an entity legally distinct from the first (see, to that effect , judgment of 8 May 2014, Datenlotsen Informationssysteme, C-15/13, EU: C: 2014: 303, item 29). In such cases, it may be considered that the contracting authority is, in fact, using its own resources (see, to that effect, judgment of 8 May 2014, Datenlotsen Informationssysteme, C-15/13, EU: C: 2014 : 303, point 25) and that the awarding entity is almost part of the internal services of the latter.

31- This exception requires, in addition to the fact that the contracting authority exercises control over the awarding entity similar to that which it exercises over its own services, that this entity carries out the bulk of its activities for the benefit of the contracting authority or authorities which (see, to that effect, judgment of 18 November 1999, Teckal, C-107/98, EU: C: 1999: 562, paragraph 50).

32- Thus, it is essential that the activity of the entity awarded be devoted mainly to the community or communities that hold it, any other activity that can only be of a marginal nature. In order to assess whether this is the case, the competent judge must take into consideration all the circumstances of the case, both qualitative and quantitative. In this respect, the relevant turnover is that which this entity carries out pursuant to the award decisions taken by this or these supervising authorities (see, to that effect, the judgments of 11 May 2006, Carbotermo and Consorzio Alisei, C -340/04, EU: C: 2006: 308, points 63 and 65, and of 17 July 2008, Commission / Italy, C-371/05, unpublished, EU: C: 2008: 410, point 31).

33- The requirement that the person in question carry out most of his activity with the community or communities that hold it is intended to ensure that Directive 2004/18 remains applicable in the case where a company controlled by one or more collectivities is active on the market, and therefore likely to compete with other companies. In fact, an enterprise is not necessarily deprived of freedom of action simply because the decisions concerning it are controlled by the community or communities that hold it, if it can still exercise a significant part of its economic activity with other operators. On the other hand, where the services of that undertaking are substantially intended for that or those authorities alone, it appears justified that the undertaking is exempt from the constraints of Directive 2004/18, which are dictated by the desire to preserve competition which in this case, there is no longer any need to be (see, by analogy, judgment of 11 May 2006, Carbotermo and Consorzio Alisei, C-340/04, EU: C: 2006: 308, points 60 to 62).

34- It follows from this case law that any activity of the awarding entity which is devoted to persons other than those who hold it, ie to persons who have no control report with this entity, even if they are not public, must be considered to be exercised in favor of third parties.

35- Consequently, in the light of that case-law, in the main proceedings, the local authorities which are not associated with Cogesa must be regarded as third parties. According to the information given in the order for reference, there is no report of control between those authorities and that company, so that the particular internal connection which, according to the case-law of the Court, justifies the exception as regards in-house allocations between the contracting authority and the successful tenderer is missing.

36- Therefore, for the purposes of ascertaining whether Cogesa carries out the main part of its business with the authorities that hold it, the activity that that company devotes to non-associated local and regional authorities must be considered to be exercised for the benefit of third parties. It is for the national court to examine whether the latter activity can be regarded as being of a marginal nature in relation to Cogesa's activity with the communities which hold it, within the meaning of the Court's case-law relating to the attribution called "in house".

37. That conclusion can not be invalidated by the fact, referred to by the referring court, that Cogesa's activity for the benefit of non-associated local and regional authorities is imposed by a public authority, which is also not an associate of that company. Although it imposed that activity on Cogesa, it is apparent from the information in the order for reference that that public authority is not an associate of that company and has no control over that company within the meaning of that decision. the Court's case-law relating to the so-called "in house" award. In the absence of any control by the said public authority, the activity imposed by the latter on Cogesa must be considered as an activity exercised for third parties.

38. In the light of the foregoing considerations, the answer to the first question referred is that, in the context of the application of the case-law of the Court concerning the direct allocation of so-called 'in house' public contracts, in order to to determine whether the contracting entity performs the main part of its activity for the contracting authority, in particular the local authorities which are its partners and who control it, the activity imposed on that entity by a public authority should not be included in this activity , a non-associate of this entity, in favor of local authorities that are not associated with the entity and have no control over it, the latter activity being considered to be exercised for third parties.

On the second question

39. By that question, the national court essentially asks whether, in order to determine whether the successful entity performs the main part of its activity for the local and regional authorities which are its partners and which exercise over it, jointly, a similar to the one they exercise over their own services, account should also be taken of the activity that this entity carried out for these local authorities before such joint control became effective.

40. In that regard, it should be borne in mind that, according to the case-law of the Court, in order to assess the condition relating to the carrying out of most of the activity, the national court must take into consideration all the circumstances of the case, both qualitative and quantitative (see, to that effect, judgment of 11 May 2006, Carbotermo and Consorzio Alisei, C-340/04, EU: C: 2006: 308, paragraphs 63 and 64).

41- In the present case, it is apparent from the information in the order for reference that Cogesa has already carried out activities for the local authorities which hold it before the conclusion of the agreement of 30 October 2014. Those activities must certainly be taken into account. when they still survive at the time of a public contract award. In addition, activities completed before 30 October 2014 may also be relevant to assess whether the condition for the completion of the bulk of the activity is fulfilled. Indeed, past activities may be indicative of the importance of the activity that Cogesa plans to carry out for its associated territorial authorities after their similar control took effect.

42- In the light of the foregoing considerations, for the purpose of determining whether the contracting entity carries out the bulk of its activity for the local authorities which are its partners and which exercise in it, jointly, a control similar to that which they exercise on their own services, it is appropriate to take into consideration all the circumstances of the case, which may include the activity that the successful entity performed for these same local authorities before such joint control has become effective .

Costs

43. As proceedings are, in so far as the parties to the main action are concerned, in the nature of an action pending before the national court, the decision on costs is a matter for that court. The costs incurred in submitting observations to the Court, other than those of the said parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:

  1. In the context of the application of the Court's case-law concerning direct awards of so-called "in-house" public contracts, in order to determine whether the contracting entity carries out most of its activity for the contracting authority, in particular local authorities who are its partners and who control it, it is advisable not to include in this activity that which this entity imposes on a public authority, not associated with this entity, in favor of local authorities which are not associated with the entity and do not exercise any control over it, the latter activity to be considered as exercised for third parties.
  2. For the purpose of determining whether the successful entity carries out the main part of its activity for the local authorities which are its partners and which exercise on it, jointly, a control similar to that which they exercise on their own services, it is advisable to take into consideration all the circumstances of the case, which may include the activity that the successful tenderer performed for those same local authorities before such joint control became effective.