Reserved contracts
99.Since Article20 and Article77(1) of Directive 2014/24 constitute a derogation from the general rules set out in that directive, I believe that the scope of those provisions is to be interpreted narrowly. This means, in particular, that those provisions contain an exhaustive list of cases that may be the subject of reserved contracts.
(1)Reserved contracts under Article20 of Directive 2014/24
100.Article20 of Directive 2014/24 deals with two alternative situations: (i) the possibility for contracting authorities of reserving contracts for either sheltered workshops or economic operators whose aim is the social and occupational integration of disabled or disadvantaged persons, or (ii) the possibility of providing for those contracts to be performed under sheltered programmes.(97)
101.While it is for the referring court to establish the applicability of that provision to the services at issue, I take the view that, in the present case, the application of that provision cannot be ruled out. Indeed, Section IV of the Annex to Decree 181/2017 includes persons with ‘functional diversity’ and, in particular, point2 of that annex deals with their social integration. Therefore, in so far as the contractual action agreements at issue concern services provided to recipients who are those persons, Article20 of Directive 2014/24 may be applicable.
102.That article allows– but does not compel– contracting authorities to reserve contracts to sheltered workshops and economic operators pursuing social initiatives or to provide for those contracts to be performed under sheltered programmes. The question whether Member States could, under that provision, impose additional limitations narrowing the circle of permitted participants and, thus, reserving procurements, was recently examined by the Court in Conacee.(98)
103.In that case, the Court pointed out that it follows from the wording of Article20(1) of Directive 2014/24 and from the objectives pursued by the latter that it does not contain an exhaustive list of conditions under which a contracting authority may limit the type of economic operator with which it may enter into a reserved contract. Instead, that directive leaves it to Member States to adopt additional criteria defining those conditions, if those additional criteria contribute to ensuring the social and employment policy objectives pursued by Article20 of Directive 2014/24.Following the Advocate General Tanchev’s view that the requirements under that provision are regarded as minimum requirements,(99) the Court ruled that Member States are free to narrow the circle of permitted participants when having recourse to the reserved contracts under Article20 of Directive 2014/24.(100)
104.It follows from the foregoing that Member States can add criteria, such as the criterion of excluding profit-making entities laid out in the national legislation, in so far as such exclusion ‘contributes to ensuring the social and employment policy objectives pursued by that provision’.(101) However, it should be noted that, in the present case, the Court has not been provided with any information regarding the reasons behind such exclusion by the national legislature. One could argue that non-profit-making entities have a more social dimension than profit-making entities and are, therefore, better suited to pursuing such objectives. Conversely, it could be submitted that profit-making entities can provide high-quality services with low costs and, therefore, be able to pursue those objectives. That said, it is entirely for the referring court to assess whether the exclusion at issue contributes to ‘ensuring… social and employment policy objectives’.
105.Here, I must stress that there are two limits to the option laid out in Article20(1) of Directive 2014/24.
106.First, Article20(2) of that directive requires the Member States, when availing themselves of the option provided by Article20, to make explicit reference to that article in the call for tenders, in the absence of which such contracts cannot be reserved. In the present case, the referring court must ascertain whether that requirement has been met.
107.Secondly, when the Member States make use of the option provided for in Article20 of Directive 2014/24, they must respect, inter alia, freedom of establishment, as well as the principles deriving from that freedom, such as the principles of equal treatment and proportionality.(102) As to the social services at issue in the main proceedings whose users are persons with functional diversity, it is for the referring court to determine whether the conditions set out in the national legislation are necessary and appropriate for ensuring the integration of those persons, as required by Article20(1) of Directive 2014/24. Moreover, it is worth noting that the Court has already held that when the Member States limit reserved contracts to voluntary associations, the principle of equality is not, in essence, infringed.(103)
(2)Reserved contracts under Article77 of Directive 2014/24
108.Article77(1) of Directive 2014/24 applies to certain specific social services. While it seems possible that some of the services referred to in the Annex to Decree 181/2017 fall within the scope of Article77, it is clear to me that neither the entities nor the contractual action agreements in question satisfy the conditions set out in Article77(2) and (3) of Directive 2014/24.
109.The wording and general scheme of Article77 of that directive do not provide much guidance on how to interpret it.(104) However, recital118 of Directive2014/24 explains the purpose of the procurement procedures that can be reserved for specific entities under Article77 of that directive. That recital states that, in order to ensure the continuity of public services, that directive should allow that participation in procurement procedures for certain services in the field of social services could be reserved for certain organisations– such as organisations based on employee ownership or active employee participation in their governance, and cooperatives. Member States can therefore narrow the circle of participants to such organisations that participate in delivering these services to end users. It follows from those explanations that procurement procedures under Article77 of Directive2014/24 are merely a subset of the procurements which come under the simplified regime, and the conditions set out in that provision are therefore to be interpreted restrictively.(105)
110.First, Article77(2) of that directive contains a list of four cumulative conditions. The first three concern the governance of the entities providing the services, whereas the fourth deals with the limitation set on successive repeat contracts. In the present case, as regards the national legislation at issue, it is the third and the fourth of those conditions that appear challenging. On the one hand, the national legislation at issue does not appear to be aimed at entities the economic governance of which entails employee ownership or participatory principles.(106) Thus, it is highly unlikely that the entities that are parties to the contractual action agreements at issue satisfy the condition set out in Article77(2)(c) of Directive 2014/24. On the other hand, when examining the national legislation at issue, I did not come across a ‘no-repeat’ clause such as the one included in Article77(2)(d) of Directive 2014/24. On the contrary, the final sentence of Article23 of Decree 181/2017 seems to allow a renewal of a contract, even after the 10-year extension provided for in that article. Therefore, the national legislation at issue does not seem to fulfil the criteria of Article77(2) of Directive 2014/24.
111.Neither do the contractual action agreements at issue satisfy the condition set out in Article77(3) of Directive 2014/24, according to which the maximum duration of the contract must not exceed three years. Under Article23 of Decree 181/2017, those agreements may be concluded for a maximum period of 4 years and, where appropriate, be extended up to 10 years (with the possibility of concluding another agreement immediately afterwards).
112.In the light of the foregoing, I conclude that Article77 of Directive 2014/24 is not applicable to the present case.
113.I shall proceed on the basis that, as regards the contractual action agreements that fall within the scope of Directive 2014/24, except for the ones that come under Article20 thereof, the remainder of those agreements must fulfil the criteria of the simplified regime laid down in Articles75 and 76 of that directive.
(b)The rules under Articles75 and 76 of Directive 2014/24
114.The referring court is asking, in essence, whether the public authorities can conclude contractual action agreements solely with private non-profit entities, under which those authorities entrust those entities with certain social services referred to in Article74 of Directive 2014/24. To answer that question, I must turn to the rules laid down in Articles75 and 76 of that directive, which deal, inter alia, with the obligation to publish notices and the principle of equality, respectively.
115.First, Article75 of Directive 2014/24, concerning the publication of notices, requires contracting authorities to announce their intention to award a contract to the Publications Office of the European Union (107) by means of a contract notice or a prior information notice. Article74 of Directive 2014/24 introduces a special procurement regime dedicated to public contracts for social and other specific services when they are equal to or greater than the threshold mentioned in Article4(d) thereof. For its part, Article75 of that directive emphasises the fact that public authorities still have to comply with rules on publication of the tender notices concerning those public procurements. In doing so, that requirement is an expression of the principle of transparency, as laid down in Section2 and Article76(1) of that directive.
116.In the present case, according to Article13(2) of Decree181/2017, the relevant contract notices are published by the Diari Oficial de la Generalitat Valenciana (Official Journal of the Valencia Regional Government). However, as regards the contract notices, that form of publicity, limited to the Community of Valencia, does not suffice, to my mind, to meet the requirements of Article75(1) of Directive 2014/24, which specifically refer to the procedure set out in Article51 when the contracting authorities choose to issue a contract notice. Consequently, the national legislation at issue does not appear to comply with the transparency rules laid down in Article75(1) of Directive 2014/24.
117.Second, according to Article76(1) of that directive, even under the simplified regime, Member States must observe, inter alia, the principle of equality of economic operators. It should be recalled that Directive 2014/24 seeks to ensure freedom of establishment, as well as the principles stemming from the fundamental freedoms, such as equal treatment, non-discrimination, mutual recognition, proportionality and transparency.(108)
118.Accordingly, the referring court will have to examine whether the national legislation at issue in the main proceedings, allowing the de facto exclusion of profit-making entities from the provision of certain social services pursuant to contractual action agreements under Decree 181/2017,(109) is consistent with those principles.
119.It should be recalled that, according to settled case-law, the principle of equality requires that comparable situations must not be treated differently, and that different situations must not be treated in the same way, unless such treatment is objectively justified.(110) The comparability of situations must be assessed in the light of the subject matter and purpose of the EU measure, which makes the distinction in question.(111)
120.Thus, in the present case, the referring court will have to determine whether the ‘social initiative entities’, as defined in Article3(e) of Decree 181/2017, are in the same situation as profit-making entities as regards the objective pursued by the simplified regime under Articles74 to 76 of Directive 2014/24.(112)
121.As regards those objectives, recital114 of that directive explains that the simplified regime concerning, in particular, certain social services is to be established in the light of the cultural context and sensitivity of those services. Therefore, and taking into account the wording of Article1(5) of Directive 2014/24, the Member States should be given wide discretion to organise the choice of the service providers in the way they consider most appropriate. That recital adds the objectives of simplification and of alleviating the administrative burden for contracting authorities and economic operators.
122.In my opinion, that recital is to be read in conjunction with Article76(2) of Directive 2014/24, which refers to the quality, continuity, accessibility, affordability, availability and comprehensiveness of the services, as well as the specific needs of different categories of users. It seems, therefore, that it is the specific nature of the social services in question that justifies the existence of the simplified regime. Accordingly, it seems to me that the relevant criterion should be the nature of the social services in question provided by the two categories of entity.(113)
123.In the present case, the defendant and the Spanish Government have not explained why profit-making entities are automatically excluded from the scope of Decree 181/2017. While it could be argued that the ‘social initiative entities’, as defined in Article3(e) of Decree 181/2017, and profit-making entities have different legal natures and function differently, the two categories of entity may also be called on to perform similar social services, and provide services with the same level of quality at similar costs. It follows that, subject to the findings of the referring court, those two categories of entity may be in a comparable situation as regards the objective of the regime under Articles74 to 76 of Directive 2014/24.
124.Moreover, according to settled case-law, as regards the principle of proportionality, which is a general principle of EU law, the rules laid down by the Member States in implementing the provisions of Directive 2014/24 must not go beyond what is necessary to achieve the objectives of that directive.(114) In that connection, it is clear to me that the case-law of the Court cannot be interpreted as allowing certain entities to be excluded from the application of the simplified regime owing solely to the fact that they are profit-making.(115)
125.In particular, I do not see how the automatic exclusion of profit-making entities from the scope of national legislation ensures that the services at issue are provided in an appropriate way, while simplifying and alleviating the administrative burden as mentioned in recital114 of Directive 2014/24. Moreover, such automatic exclusion does not appear to contribute to the quality, continuity, affordability, availability and comprehensiveness of those services, as required by Article76(2) of Directive 2014/24. In implementing the simplified regime, it would appear more appropriate to focus on the ability to provide cost-effective, quality social services, rather than on the nature of the entity providing those services.(116)
126.Consequently, it is inconceivable, in my view, that such an exclusion is either justified or proportionate; it is therefore contrary to the principle of equal treatment.
4.Freedom of establishment
127.If the contractual action agreements at issue do not fall within the scope of Directive 2014/24,(117) which is for the referring court to ascertain, that does not mean, however, that those agreements are necessarily excluded from the scope of EU law. It follows from the settled case-law of the Court that the contractual action agreements at issue may nonetheless be subject to the fundamental freedoms and general principles of EU law, in particular the principles of equal treatment and non-discrimination on grounds of nationality and the corollary obligation of transparency, provided that those agreements have a certain cross-border dimension.(118) Moreover, subject to that proviso, those fundamental freedoms and principles apply if there is no choice between the interested operators. Indeed, the Court has already held that, unlike Directive 2014/24, freedom of establishment and the principle of equal treatment apply to different licencing systems where there is no choice.(119)
128.In the present case, as mentioned above, since the Court has no information before it on the value of the contractual action agreements in question, I assume that, in some cases, the value of those agreements is above the threshold set in Article4(d) of Directive 2014/24, while, in other cases, it may remain lower than that threshold,(120) which is for the referring court to verify.(121) In the latter cases, I would point out that the Court has already ruled that because of the ‘modest economic interest at stake’, it could reasonably be maintained that an undertaking located in a Member State other than the one where the contract is awarded would have no interest in the contract at issue, with the effect that the application of rules enshrined in primary EU law is not justified.(122)
129.Therefore, provided that the social services that are the subject of the contractual action agreements at issue consist in an economic activity and have a cross-border dimension, the referring court should examine whether or not the absence of sufficient publication of the invitation to tender and the de facto exclusion of profit-making entities constitutes an obstacle to freedom of establishment under Article49 TFEU and an infringement of the corollary principles of equal treatment and the obligation of transparency.(123)
130.First, as regards freedom of establishment and the principle of equal treatment, the Court has already held that a requirement that persons wishing to carry out an economic activity adopt a specific legal form is a restriction on their freedom of establishment within the meaning of Article49 TFEU. Indeed, such a requirement prevents economic operators located in the home Member State and of a different legal form from setting up a secondary establishment in the host Member State.(124)
131.However, since that restriction does not give rise to direct discrimination on grounds of nationality, it may also pursue any objective recognised as legitimate under EU law. In that regard, I believe that the reasoning set out in points122 to 125 of this Opinion regarding justifications and the proportionality of the national legislation applies mutatis mutandis. In the absence of any justification put forward by the Spanish authorities concerning the exclusion of profit-making entities from the contractual action agreements at issue, the national legislation appears to be contrary to freedom of establishment and the principle of equal treatment. In any event, the automatic exclusion of profit-making entities from the scope of national legislation does not appear to be appropriate, since it is not focused on the nature and quality of the services provided, but rather on the legal form of the entity. That said, it is for the national court to determine whether the national legislation pursues a legitimate objective recognised by EU law and, if so, to assess whether that legislation complies with the principle of proportionality.
132.Second, as to the obligation of transparency under Article49TFEU, it is worth pointing out that, unlike the specific requirements stemming from Directive 2014/24, that obligation does not require an invitation to tender to be published in the Official Journal of the European Union. Instead, that obligation is limited to requiring a degree of advertising that is sufficient to ensure, first, the opening-up to competition and, second, the review of the impartiality of the procurement procedure.(125)
133.In the present case, as the Diari Oficial de la Generalitat Valenciana is the Official Journal of the Valencia Regional Government and is thus the ordinary means of publication in the field of public procurement, it seems to me that the national legislation at issue fulfils the aforementioned criteria concerning publicity.
134.If the conditions of application of Directive 2014/24 are satisfied, I therefore take the view that Articles74 to 76 of that directive must be interpreted as not precluding national legislation, which allows a public authority to conclude, without complying with the procedural requirements imposed by EU law, a public contract under which that authority entrusts only non-profit entities with the provision of certain social services in return for reimbursement of the costs incurred by those entities, provided that that legislative measure complies with the principles of equal treatment and proportionality, which is for the referring court to ascertain. Article75 of Directive 2014/24 has to be interpreted as precluding national legislation which provides that contract notices are to be published only in the regional official journal.
135.As regards the services for which the estimated value is below the threshold laid down in Article4(d) of Directive 2014/24 and procedures that do not entail a choice within the meaning of Article1(2) of that directive, the freedom of establishment enshrined in Article49 TFEU must be interpreted as not precluding such national legislation, provided that that legislative measure pursues a legitimate objective recognised by EU law, and complies with the principles of equal treatment and proportionality, which is for the national court to ascertain.
C.The third question
136.If the first two questions are answered in the negative, by its third question, the referring court is asking, in essence, whether Articles49 and 56 TFEU, Article76 of Directive 2014/24 and Article15(2) of the Services Directive must be interpreted as precluding national legislation, which provides for a selection criterion for the conclusion of the contractual action agreements at issue, according to which the contracting authorities may give weight to the fact that the potential tenderers for the provision of the social services in question are established in the place where such services are to be provided.
137.In order to answer that question, I shall analyse the compatibility of the selection criterion at issue with Directive 2014/24, the Services Directive and then with the fundamental freedoms.
1.The compatibility of the selection criterion at issue with Directive2014/24
138.As regards the compatibility of the selection criterion at issue with Directive 2014/24, the issue of a geographical criterion has already been examined in Grupo Hospitalario Quirón, (126) which concerned tenders in the field of medical services.(127) In particular, the Court was called upon to assess the compatibility with Directive 2004/18 of a tender requirement according to which a tenderer was to be located in the municipality where the medical services in question were to be provided. The Court stated that such a requirement constituted a ‘territorial constraint on performance’.(128) That requirement did not ensure equal and non-discriminatory access to the contracts at issue by all tenderers, since it rendered those contracts accessible only to those tenderers who were able to provide the services in question in an establishment situated within the municipality designated by the contracting authorities.(129)
139.In the present case, it is apparent from Article15(1)(a) of Decree 181/2017 that, in order to select the social initiative entities which will be responsible for providing the social services at issue, the contracting authorities may, inter alia, give weight to the fact that those entities are located in the area in which a given service is to be provided.(130) Thus, I believe that the geographical criterion at issue in the present case is similar to that which was at issue in Grupo Hospitalario Quirón. That criterion constitutes a ‘territorial constraint on performance’,(131) since it has the effect of putting at the disadvantage those tenderers who cannot provide the services in question in an establishment situated within a given municipality, despite the fact that they may satisfy the other conditions laid down in the contract documents and technical specifications of the contracts under consideration.
140.I therefore take the view that the selection criterion at issue in the main proceedings gives rise to a difference in treatment between the entities that meet that requirement and those that do not. Unless those two categories of potential tenderers are not in an objectively comparable situation or that difference in treatment is objectively justified, that requirement is contrary to the principle of equal treatment to which the award of public service contracts is subject under Article76 of Directive 2014/24.
141.As to the question whether those two groups of potential tenderers are in an objectively comparable situation, it seems to me that that is the case, provided that their ability to provide the social services at issue is the same in terms of quality and cost. Therefore, subject to that proviso which is for the referring court to verify, I take the view that such a requirement treats objectively comparable situations differently.
142.As regards justification, there is nothing in either the national legislation at issue or the file provided to the Court that would suggest any justification for the selection criterion at issue. However, it is ultimately for the referring court to ascertain whether that is actually the case.
2.Compatibility of the selection criterion with the Services Directive
143.The Court is being asked whether the selection criterion for the conclusion of the contractual action agreements at issue is compatible with the Services Directive.
144.At the outset, it must be determined whether the social services at issue fall within the scope of that directive.
145.In that regard, Article2(2)(j) of the Services Directive, read in conjunction with recital27 thereof, expressly excludes from the scope of that directive ‘social services relating to social housing, childcare and support of families and persons permanently or temporarily in need which are provided by the State, by providers mandated by the State or by charities recognised as such by the State’.
146.Recital27 explains that the objective of such exclusion is to ensure ‘support for those who are permanently or temporarily in a particular state of need because of their insufficient family income or total or partial lack of independence and for those who risk being marginalised’. That recital adds that those ‘services are essential in order to guarantee the fundamental right to human dignity and integrity and are a manifestation of the principles of social cohesion and solidarity and should not be affected by [the Services Directive]’.
147.I must point out that the Court has given the concept of ‘social services’ in Article2(2)(j) of the Services Directive a two-fold definition. In its judgment in Femarbel, the Court held that only services which meet two cumulative conditions fall within the scope of the exclusion laid down in that provision. The first relates to the nature of the activities, whilst the second one concerns the status of the service provider.(132)
148.In order to satisfy the first condition, the activities at issue must be ‘essential in order to guarantee the fundamental right to human dignity and integrity’ and ‘a manifestation of the principles of social cohesion and solidarity’.(133) In that case, the Court ruled that the national court had to ascertain whether the activities at issue are of a genuinely social nature, in that they are intended to provide the persons concernedwith ‘assistance and care appropriate to their loss of independence’ accompanied by a specific programme of events, or the necessary care ‘which cannot be provided by their close relatives on a continuous basis’.
149.In the present case, as mentioned earlier in this Opinion, the Annex to Decree 181/2017 lists a broad range of social services, which may vary according to their nature and the groups of persons using those services.(134) However, all those services appear to have the common objective of assisting persons in need and providing them with care. Therefore, I take the view that those services appear to satisfy the first condition put forward by the Court in Femarbel.(135)
150.As regards the second condition, the Court held in Femarbel that social services can be carried out by the State itself, a charity recognised as such by the State, or a private service provider mandated by the State.(136) In view of such a broad definition ratione personae given by the Court, the entities providing the services under the contractual action agreements at issue, which are non-profit associations, may fall within the scope of Article2(2)(j) of the Services Directive, which is for the national court to ascertain.
151.Consequently, I take the view that the Services Directive is not applicable to the social services provided for in Decree 181/2017, since those services are, pursuant to Article2(2)(j) of that directive, expressly excluded from the scope of that directive.
3.Compatibility of the selection criterion with the fundamental freedoms
152.As regards the compatibility of the selection criterion at issue with the fundamental freedoms, as I have already explained in this Opinion, on the one hand, the contractual action agreements at issue appear to fall within the scope of freedom of establishment enshrined in Article49 TFEU rather than that of freedom to provide services laid down in Article56 TFEU.(137) Therefore, notwithstanding the fact that the third question referred by the national court relates to both of those freedoms, I consider that the answer given should be limited to the former. On the other hand, it is worth recalling that it is only if those contractual action agreements have a cross-border dimension that Article49 TFEU may apply.(138)
153.As regards freedom of establishment, a selection criterion, such as that laid down in Article15(1)(a) of Decree 181/2017, may hinder or render less attractive the exercise of freedom of establishment.(139) In that regard, I should point out that the Court has ruled that national legislation that precludes entities from being able to pursue an independent economic activity on the premises of their choice constitutes a restriction.(140) In the present case, the fact of establishing themselves in the Community of Valencia may entail financial consequences for and administrative burdens on the entities that have exercised that fundamental freedom.(141) That would be the case, for example, for an entity, established in a Member State other than Spain, which has set up a secondary establishment in that Member State but outside the Community of Valencia. Consequently, I take the view that the requirement at issue constitutes a restriction on freedom of establishment within the meaning of Article49 TFEU.
154.However, it may still be justified if it pursues objectives recognised as legitimate by EU law and complies with the principle of proportionality.(142)
155.In the present case, I take the view that my findings set out in point142 of the present Opinion concerning the justifications for the infringement of the principle of equal treatment under Article76 of Directive 2014/24 apply mutatis mutandis. However, it is for the national court to carry out an assessment as to whether the criterion at issue pursues a legitimate objective recognised by EU law, is suitable to ensure the attainment of that objective and does not go beyond what is necessary to attain it.
156.Lastly, for the sake of completeness and contrary to the submissions of the defendant and the Spanish Government, I should stress that the wording of the second indent of Article1 of Protocol No26 to the TFEU has no bearing on the question whether the selection criterion laid down in Article15(1)(a) of Decree 181/2017 is compatible with freedom of establishment. That is because the values which that protocol seeks to protect are not reflected in the selection criterion at issue. Such a criterion, which is purely geographical, cannot be explained by the need to ensure ‘diversity between various services of general economic interest and the differences in the needs and preferences of users that may result from a different geographical, social or cultural situation’. I consider, therefore, that the second indent of Article1 of Protocol No26 to the TFEU cannot be relied upon in order to justify geographical restrictions to the fundamental freedoms.
157.In conclusion, if the existence of any cross-border dimension were to be established in relation to the contractual action agreements at issue, Article76 of Directive 2014/24 and Article49 TFEU preclude a selection criterion for the conclusion of the contractual action agreements at issue whereby the contracting authorities may give weight to the fact that the potential tenderers for the provision of the social services in question are established in the place where such services are to be provided, unless that criterion pursues a legitimate objective recognised by EU law, is suitable to ensure the attainment of that objective and does not go beyond what is necessary to attain it, which is for the referring court to ascertain.
IV.Conclusion
158.I propose that the Court reply as follows to the questions referred by the Tribunal Superior de Justicia de la Comunidad Valenciana (High Court of Justice of the Community of Valencia, Spain) for a preliminary ruling:
Articles74 to 76 of Directive 2014/24/EU of the European Parliament and of the Council of 26February 2014 on public procurement and repealing Directive 2004/18/EC, and Article49 TFEU must be interpreted as not precluding national legislation, which allows a public authority to conclude, without complying with the procedural requirements imposed by EU law, a public contract under which that authority entrusts only non-profit entities with the provision of certain social services in return for reimbursement of the costs incurred by those entities, provided that such legislation complies with the principles of equal treatment and proportionality, which is for the referring court to ascertain.
Article75(1) of Directive 2014/24 must be interpreted as precluding national legislation that requires that contract notices be published only in the regional official journal.
Article76 of Directive 2014/24 and Article49 TFEU preclude a national legislation which provides for a selection criterion for the conclusion of contractual action agreements whereby the contracting authorities may give weight to the fact that the potential tenderers for the provision of the social services in question are established in the place where such services are to be provided, unless that criterion pursues a legitimate objective recognised by EU law, is suitable to ensure the attainment of that objective and does not go beyond what is necessary to attain it, which is for the referring court to ascertain.
1Original language: English.
2Decreto 181/2017, de 17 de noviembre, del Consell, por el que se desarrolla la acción concertada para la prestación de servicios sociales en el ámbito de la Comunitat Valenciana por entidades de iniciativa social (Decree 181/2017 of 17November 2017 of the Council of the Community of Valencia making regulations governing public-private agreements for the provision of social services by social enterprises within the Community of Valencia (DOGV No8197 of 23December 2017, p.48245) (‘Decree 181/2017’).
3The national law refers to the term ‘acuerdos de acción concertada’. See, to that effect, Articles44bis, 53 and 56 and Title VI of Ley 5/1997, de 25 de junio, por la que se regula el Sistema de Servicios Sociales en el ámbito de la Comunidad Valenciana (Law 5/1997 of 25June 1997 governing the Social Services System within the Community of Valencia) (BOE No192 of 12August 1997, p.24405), as amended by Ley13/2016, de 29 de diciembre, de medidas fiscales, de gestión administrativa y financiera, y de organización de la Generalitat (Law 13/2016 of 29December 2016 on measures in respect of tax, administrative and financial management and the organisation of the Government of the Community of Valencia) (BOE No34 of 9February 2017, p.8694), (‘Law5/1997’).
4Lesbian, gay, bisexual, transgender and intersex individuals.
5That list was not in the preliminary reference referred to the Court. In its written observations, the Commission provides the Court with the link for the publication of Decree181/2017 (see https://www.dogv.gva.es/datos/2017/12/23/pdf/2017_11941.pdf). Article6(2) of the decree refers to the annex thereof, which includes the list of services at issue.
6Directive of the European Parliament and of the Council of 26February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L94, p.65).
7Directive of the European Parliament and of the Council of 12December 2006 on services in the internal market (OJ 2006 L376, p.36).
8Opinion in Decker (C‑120/95 and C‑158/96, EU:C:1997:399, point17).
9Judgments of 28April 1998, Kohll (C‑158/96, EU:C:1998:171, paragraph21); of 12July 2001, Smits and Peerbooms (C‑157/99, EU:C:2001:404, paragraph54); of 13May 2003, Müller-Fauré and van Riet (C‑385/99, EU:C:2003:270, paragraph39); and of 23October 2003, Inizan (C‑56/01, EU:C:2003:578, paragraph17).
10Judgment of 8February 2018, Lloyd’s of London (C‑144/17, EU:C:2018:78, paragraph33).
11The CPV establishes a single classification system for public procurement aimed at standardising the references used by contracting authorities and entities to describe the subject of procurement contracts. See https://simap.ted.europa.eu/cpv.
12Ley 3/2019, de 18 de febrero, de servicios sociales inclusivos de la Comunitat Valenciana (Law 3/2019 of 18February 2019 on inclusive social services in the Community of Valencia) (BOE No61 of 12March 2019, p.23249).
13In particular, Article44bis(1)(c), Article53, Article56(2) and TitleVI of Law 5/1997.
14The reference to that term appears to derive from the judgments of 11December 2014, Azienda sanitaria locale n. 5 ‘Spezzino’ and Others (C‑113/13, EU:C:2014:2440), and of 28January 2016, CASTA and Others (C‑50/14, EU:C:2016:56), which both dealt with voluntary associations in the context of public procurement contracts.
15Ibid.
16See, for example, judgments of 19June 2014, Centro Hospitalar de Setúbal and SUCH(C‑574/12, EU:C:2014:2004), and of 28January 2016, CASTA and Others (C‑50/14, EU:C:2016:56).
17In this respect, it refers to recitals6, 7 and 114 of Directive 2014/24, and also to Article77 thereof.
18Judgments of 19December 2012, Ordine degli Ingegneri della Provincia di Lecce and Others (C‑159/11, EU:C:2012:817), and of 13June 2013, Piepenbrock (C‑386/11, EU:C:2013:385).
19Article4bis(1)(c), Article53, Article56(2) and TitleVI of Law5/1997.
20See, for example, judgment of 10March 2016, Safe Interenvíos (C‑235/14, EU:C:2016:154, paragraph115), and order of 12May 2016, Security Service and Others (C‑692/15 to C‑694/15, EU:C:2016:344, paragraph20).
21Judgment of 8May 2013 (C197/11 and C203/11, EU:C:2013:288).
22Judgment of 15November 2016 (C‑268/15, EU:C:2016:874).
23See, to that effect, judgment of 8May 2013, Libert and Others (C197/11 and C203/11, EU:C:2013:288, paragraph35). See, more recently, judgment of 11February 2021, Katoen Natie Bulk Terminals and General Services Antwerp, (C‑407/19 and C‑471/19, EU:C:2021:107, paragraph53).
24See, in particular, judgment of 30November 1995, Gebhard (C‑55/94, EU:C:1995:411, paragraph25 et seq.). On the distinction between the freedom to provide services and the freedom of establishment, see also Opinion of Advocate General Cruz Villalón in Yellow Cab Verkehrsbetrieb (C‑338/09, EU:C:2010:568, points15 to 18).
25Directive of the European Parliament and of the Council of 26February 2014 on the award of concession contracts (OJ 2014 L94, p.1).
26Directive2014/23 defines ‘services concession’ in its Article5(1)(b), in essence, as a contract for pecuniary interest by means of which a contracting authority or entity entrusts the provision and the management of services to an economic operator. According to the case-law of the Court, the difference between a public service contract and a service concession lies, namely, in the risk taken in operating the services in question (see, to that effect, judgment of 10March 2011, Privater Rettungsdienst und Krankentransport Stadler, C‑274/09, EU:C:2011:130, paragraphs24, 26, 37 and the case-law cited).
27See Article65(3) and (4) of Law 5/1997 which provides that ‘in addition to the charges provided for, no sum may be charged to users for the provision of services which are subject of agreement’ and that ‘the collection from users of any form of payment for the provision of additional services and the amount thereof shall be authorised in advance’.
28See Article66(2) and Article65(3) of Law 5/1997. In that regard, ASADE, in its answers to the written questions of the Court, submits that the legislation at issue does provide that public authorities cover all losses regarding the costs of the services at issue. The defendant submits that Article11(1) of Decree 181/2017 provides for the beneficiaries of the services covered by the contractual action agreements to receive those services for free.
29The legal basis for adoption of Directive 2014/24 are, in particular, Article53(1) and Article62 TFEU, which are contained in TitleIV on ‘Free movement of persons, services and capital’, in Chapter2 on ‘Rights of Establishment’ (Article53) and Chapter3 on ‘Services’ (Article62).
30See Opinion of Advocate General Stix-Hackl in Sintesi (C‑247/02, EU:C:2004:399, point27).
31See, by analogy, judgment of 29April 2010, Commission v Germany, C‑160/08 (EU:C:2010:230, paragraphs73 and 74).
32See, inter alia, judgments of 21July 2005, Coname (C‑231/03, EU:C:2005:487); of 11December 2014, Azienda sanitaria locale n. 5 ‘Spezzino’ and Others (C‑113/13, EU:C:2014:2440); and of 28January 2016, CASTA and Others (C‑50/14, EU:C:2016:56).
33See, in particular, judgment of 30November 1995, Gebhard (C‑55/94, EU:C:1995:411, paragraph25 et seq.). On the distinction between the freedom to provide services and the freedom of establishment, see also Opinion of Advocate General Cruz Villalón in Yellow Cab Verkehrsbetrieb (C‑338/09, EU:C:2010:568, points15 to 18).
34According to settled case-law in the field of social security, EU law does not, in principle, detract from the powers of the Member States to organise their social security systems (see, most recently, judgment of 11June 2020, Commission and Slovak Republic v Dôvera zdravotná poist’ovňa (C‑262/18P and C‑271/18P, EU:C:2020:450, paragraph30 and the case-law cited)).
35Judgment of 13April 2000, Lehtonen and Castors Braine (C‑176/96, EU:C:2000:201, paragraph42 and the case-law cited).
36Sanchez-Graells,A., ‘State Aid and EU Public Procurement: More Interactions, Fuzzier Boundaries’ (8October 2019), Hancher,L., and Piernas López,J.J., (eds), Research Handbook on European State Aid Law, 2nd edn, Edward Elgar, 2020, available at SSRN: https://ssrn.com/abstract=3466288.
37Regarding that distinction, see, in particular, Opinion of Advocate General Poiares Maduro in FENIN v Commission (C‑205/03P, EU:C:2005:666, point51). See also Wauters,K., Bleux,S., ‘A new generation of public procurement Directives: background, objectives and results’, in Marique,Y., Wauters,K., (eds), EU Directive 2014/24 on public procurement. A new turn for competition in public markets?, Larcier, Brussels, 2016, p.9.
38Judgment of 1February 2017, Commission v Hungary (C‑392/15, EU:C:2017:73, paragraph100). I should add that, as regards workers, the Court has added that the provision of services for remuneration must be regarded as an economic activity ‘provided that the work performed is genuine and effective and not such as to be regarded as purely marginal and ancillary’ (judgment of 20November 2001, Jany and Others, C‑268/99, EU:C:2001:616, paragraph33 and the case-law cited). However, the latter criteria, which relate to a working relationship, do not seem relevant in the present case.
39See, inter alia, judgment of 18December 2007, Jundt (C‑281/06, EU:C:2007:816, paragraphs28 and 29 and the case-law cited).
40See, to that effect, judgment of 23February 2016, Commission v Hungary (C‑179/14, EU:C:2016:108, paragraph154).
41Ibid., paragraph157 and the case-law cited.
42Judgment of 12July 2001, Smits and Peerbooms, C‑157/99, EU:C:2001:404, paragraph58).
43Directive of the European Parliament and of the Council of 31March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L134, p.114).
44See, to that effect, judgments of 29November 2007, Commissionv Italy (C‑119/06, not published, EU:C:2007:729, paragraphs36 to 41); of 11December 2014, Azienda sanitaria locale n. 5 ‘Spezzino’ and Others (C‑113/13, EU:C:2014:2440, paragraphs32 to 43); and of 28January 2016, CASTA and Others (C‑50/14, EU:C:2016:56, paragraphs26 and 33 to 41).
45See, to that effect, judgment of 19June 2014, Centro Hospitalar de Setúbal and SUCH (C‑574/12, EU:C:2014:2004, paragraph40).
46See footnote 5 to this Opinion.
47See point 2 of this Opinion.
48For the full list, see the reference in point 2 of this Opinion.
49See Article65(3) and (4) of Law 5/1997 and Article11(1)(c) of Decree 181/2017.
50See point 53 above.
51See Article22 of Decree 181/2017.
52Ibid.
53See, to that effect, judgment of 1December 2011, Commission v Netherlands (C‑157/09, not published, EU:C:2011:794, paragraph57 and the case-law cited).
54See, in particular, judgment of 1December 2011, Commission v Netherlands C‑157/09, not published, EU:C:2011:794, paragraph58 and the case-law cited).
55See, to that effect, judgments of 13July 1993, Thijssen (C‑42/92, EU:C:1993:304, paragraph22); of 30March 2006, Servizi Ausiliari Dottori Commercialisti (C‑451/03, EU:C:2006:208, paragraph47); and of 22October 2009, Commission v Portugal (C‑438/08, EU:C:2009:651, paragraph36).
56See, to that effect, judgment of 21June 1974, Reyners (C‑2/74, EU:C:1974:68, paragraphs51 and 53).
57See, to that effect, judgments of 13July 1993, Thijssen (C‑42/92, EU:C:1993:304, paragraphs21 and 22); of 29November 2007, Commission v Austria (C‑393/05, EU:C:2007:722, paragraphs36 and 42); of 29November 2007, Commission v Germany (C‑404/05, EU:C:2007:723, paragraphs38 and 44); and of 22October 2009, Commission v Portugal (C‑438/08, EU:C:2009:651, paragraphs36 and 41).
58See, to that effect, inter alia, judgment of 29October 1998, Commission v Spain (C‑114/97, EU:C:1998:519, paragraph37).
59See, to that effect, judgment of 30September 2003, Anker and Others (C‑47/02, EU:C:2003:516, paragraph61), and of 22October 2009, Commission v Portugal (C‑438/08, EU:C:2009:651, paragraph44).
60See recital114 of Directive2014/24.
61Judgment of 2June 2016 (C‑410/14, EU:C:2016:399).
62Ibid., paragraph37.
63Ibid., paragraph38.
64Judgment of 1March 2018, Tirkkonen (C‑9/17, EU:C:2018:142).
65Ibid., paragraph35.
66Ibid., paragraph41.
67See Turudić,M., ‘Article76 Principles Of Awarding Contracts’ in European Public Procurement: Commentary on Directive 2014/24/EU, edited by Caranta,R., and Sanchez-Graells,A., 2021, Edward Elgar Publishing Limited, page863. See also, Sanchez-Graells,A., https://www.howtocrackanut.com/blog/2018/3/5/the-end-of-procurement-as-we-knew-it-cjeu-consolidates-falk-pharma-approach-to-definition-of-procurement-c-917.
68See, in particular, Articles58 and67 of Directive2014/24.
69See, by analogy, Opinion of Advocate General Cosmas in Joined Cases Hernández Vidal and Others (C‑127/96, C‑229/96 and C‑74/97, EU:C:1998:426, point80), in which he characterises the situation where the result achieved by applying a directive becomes a condition determining whether it is to apply as an absurd conclusion, or a vicious circle.
70In the judgment of 2June 2016, Falk Pharma (C‑410/14, EU:C:2016:399), the choice was deferred to the patient, and, in the judgment of 1March 2018, Tirkkonen (C‑9/17, EU:C:2018:142), to the beneficiary of the aid at issue.
71Article9(1) and (2) of Decree 181/2017.
72Article17 of Decree 181/2017.
73Article19 of Decree 181/2017.
74Article19(1) of Decree 181/2017.
75See points 69 and 70 above.
76Article3(d) and Article21(1) of Decree 181/2017 provide a definition for ‘social agreements’, which refer to ‘documents’ formalising the agreement between the administration and social entities.
77See, to that effect, judgment of 18January 2007, Auroux and Others (C‑220/05, EU:C:2007:31, paragraph40 and the case-law cited).
78See, to that effect, judgments of 20October 2005, Commission v France, C‑264/03, EU:C:2005:620, paragraph36), and of 22April 2021, Commission v Austria (Lease of a building not yet constructed) (C‑537/19, EU:C:2021:319, paragraph43).
79See, to that effect, judgment of 18October 2018, IBA Molecular Italy (C‑606/17, EU:C:2018:843, paragraph28).
80In that regard, it should be borne in mind that, according to the settled case-law of the Court, only a contract concluded for pecuniary interest may constitute a public contract falling within the scope of Directive 2004/18 (see judgments of 25March 2010, Helmut Müller (C‑451/08, EU:C:2010:168, paragraph47), and of 21December 2016, Remondis (C‑51/15, EU:C:2016:985, paragraph43). While Directive 2014/24 repealed Directive 2004/18, that condition is laid down in similar terms in both directives. That case-law can therefore be applied to the new directive.
81Judgment of 10September 2020, Tax-Fin-Lex (C‑367/19, EU:C:2020:685, paragraphs25 and 26 and the case-law cited).
82See, to that effect, judgment of 25March 2010, Helmut Müller (C‑451/08, EU:C:2010:168, paragraphs60 to 62).
83See Article11(1)(c) of Decree 181/2017.
84See judgments of 12July 2001, Ordine degli Architetti and Others (C‑399/98, EU:C:2001:401, paragraph77), and of 18January 2007, Auroux and Others (C‑220/05, EU:C:2007:31, paragraph45). It is worthwhile noting that, in her Opinion in Ordine degli Ingegneri della Provincia di Lecce and Others (C‑159/11, EU:C:2012:303, point32), Advocate General Trstenjak states that ‘the view can be taken that only a broad understanding of the notion of “pecuniary interest” is consistent with the purpose of the procurement directives, which is to open up the markets to genuine competition’.
85See Article2(1) and (2) of Decree 181/2017.
86See judgments of 29November 2007, Commission v Italy (C‑119/06, not published, EU:C:2007:729, paragraphs37 to 41); of 23December 2009, CoNISMa (C‑305/08, EU:C:2009:807, paragraphs30 and 45); and of 19December 2012, Ordine degli Ingegneri della Provincia di Lecce and Others (C‑159/11, EU:C:2012:817, paragraph26). See, also, Opinion of Advocate General Wahl in Azienda sanitaria locale n. 5 ‘Spezzino’ and Others (C‑113/13, EU:C:2014:291, point24 and the case-law cited).
87The fact that Decree 181/2017 excludes profit-making entities from the provision of the social services at issue will be dealt with under Section III.B.3 of the Opinion.
88See case-law cited in footnote 86.
89See Section III.B.1 of this Opinion.
90ASADE submits that the services at issue do not fall within the scope of the services excluded from the directive under recital6 and AnnexXIV (CPV code 75300000‑9) and, in its written answer to the questions put by the Court, it seems to indicate that the services at issue fall under the CPV codes ranging from 85000000‑9 to 85321000‑5. That submission must be examined by the referring court, which has sole jurisdiction to interpret the national legislation at issue.
91See, by analogy, judgment of 21March 2019, Falck Rettungsdienste and Falck (C‑465/17, EU:C:2019:234, paragraph37).
92The provision specifies that it is the value net of value added tax.
93I must point out, however, that some contracts may have a cross-border dimension even though their value is below the abovementioned threshold, for instance, if the procurement procedure is taking place in areas near the borders of other EU Member States (see, to that effect, judgments of 15May 2008, SECAP and Santorso (C‑147/06 and C‑148/06, EU:C:2008:277, paragraph31), and of 17November 2015, RegioPost (C‑115/14, EU:C:2015:760, paragraph51)). That extension does not seem to apply in the present case.
94See, by analogy, order of 7July 2016, Sá Machado & Filhos (C‑214/15, not published, EU:C:2016:548, paragraph29).
95See, to that effect, recital1 of Directive 2014/24.
96It is settled case-law that the only permitted exceptions to the application of Directive 2014/24 are those which are expressly mentioned therein (see judgment of 18January 2007, Auroux and Others (C‑220/05, EU:C:2007:31, paragraph59 and the case-law cited).
97On the legislative history of reserved contracts under Article20, see Opinion of Advocate General Tanchev in Conacee (C‑598/19, EU:C:2021:349, point60).
98Judgment of 6October 2021, Conacee (C‑598/19, EU:C:2021:810).
99Opinion of Advocate General Tanchev in Conacee (C‑598/19, EU:C:2021:349, point40).
100Judgment of 6October 2021, Conacee (C‑598/19, EU:C:2021:810, paragraphs24 to 28).
101Judgment of 6October 2021, Conacee (C‑598/19, EU:C:2021:810, paragraph28).
102Judgment of 6October 2021, Conacee (C‑598/19, EU:C:2021:810, paragraph33 and the case-law cited).
103As regards Directive 2004/18, the Court held that where public contracts for medical transport could be included among the service contracts covered by AnnexII B to that directive and, therefore, were not subject to all of its provisions, those contracts could be reserved for voluntary associations without thereby infringing the principle of equal treatment (judgment of 11December 2014, Azienda sanitaria locale n. 5 ‘Spezzino’ and Others (C‑113/13, EU:C:2014:2440, paragraph59).
104Legislative drafting history regarding Article77 does not provide much guidance as to its interpretation, since that provision was not initially in the Commission’s proposed legislation (see Proposal for a Directive of the European Parliament and of the Council on public procurement (COM(2011) 0896 final)– 2011/0438 (COD)), and it was added at the later stage of the legislative procedure (see Position of the European Parliament adopted at first reading on 15January 2014 with a view to the adoption Directive2014/…/EU of the European Parliament and of the Council on public procurement and repealing Directive 2004/18/EC(EP-PE_TC1-COD(2011)0438)).
105According to some authors, that provision was introduced in order to take into account the specific needs of the United Kingdom. It is only applicable to a certain subset of the services of the simplified regime (see Turudić, page867, cited in footnote67 above and the literature cited by that author). That approach is confirmed by the last two sentences of recital118 of Directive 2014/24, which implies that certain services covered by the simplified regime can be subject to the regime laid down by Article77 of that directive.
106As explained by the Norwegian Government, Article77 of Directive 2014/24 deals with the possibility of reserving contracts to certain newly established companies by persons previously employed in the public sector. It is not restricted to non-profit organisations, but covers commercial entities as well.
107See Articles48 to 51 of Directive 2014/24.
108Recital1 of Directive2014/24. See also judgment of 3October 2019, Irgita (C‑285/18, EU:C:2019:829, paragraph48 and the case-law cited).
109See point83 above.
110See, inter alia, judgment of 14December 2004, Swedish Match (C‑210/03, EU:C:2004:802, paragraph70 and the case-law cited).
111See, inter alia, judgment of 1March 2011, Association belge des Consommateurs Test-Achats and Others (C‑236/09, EU:C:2011:100, paragraph29).
112See, by way of analogy, judgment of 6October 2021, Conacee (C‑598/19, EU:C:2021:810, paragraph38).
113The defendant itself places considerable weight on that aspect when it points out that Directive 2014/24 aims to take into account the specific characteristics of services to persons (see point17 of the defendant’s observations).
114See, to that effect, judgment of 6October 2021, Conacee (C‑598/19, EU:C:2021:810, paragraphs42 to 44 and the case-law cited). See, by way of analogy, judgments of 23November 2017, Di Maura (C‑246/16, EU:C:2017:887, paragraph25), and of 26April 2012, Commission v Netherlands (C‑508/10, EU:C:2012:243, paragraph75).
115See, to that effect, judgment of 6October 2021, Conacee (C‑598/19, EU:C:2021:810, paragraph42 and the case-law cited).
116See point122 above.
117For example, if the value of the public procurement does not attain the threshold set out in Article4(d) of Directive 2014/24, it is not subject to the provisions of that directive.
118See, to that effect, judgments of 15May 2008, SECAP and Santorso (C‑147/06 and C‑148/06, EU:C:2008:277, paragraphs20 and 21); of 11December 2014, Azienda sanitaria locale n. 5 ‘Spezzino’ and Others (C‑113/13, EU:C:2014:2440, paragraphs45 and 46); of 18December 2014, Generali-Providencia Biztosító (C‑470/13, EU:C:2014:2469, paragraph32); and of 16April 2015, Enterprise Focused Solutions (C‑278/14, EU:C:2015:228, paragraph16).
119See judgment of 16February 2012, Costa and Cifone (C‑72/10 and C‑77/10, EU:C:2012:80, paragraphs 70 to73 and the case-law cited).
120See point94 above.
121As opposed to the cases where the Court has declared the case inadmissible, as the referring court has submitted no evidence providing the Court with information on the existence of a cross-border dimension (see, inter alia, judgment of 6October 2016, Tecnoedi Costruzioni (C‑318/15, EU:C:2016:747), in the present case, the main proceedings involve an action for annulment, which means that paragraph51 of the judgment of 15November 2016, Ullens de Schooten (C‑268/15, EU:C:2016:874) applies (see point38 above). Therefore, such dimension is presumed.
122See, to that effect, judgment of 21July 2005, Coname (C‑231/03, EU:C:2005:487, paragraph20).
123In the judgment of 11December 2014, Azienda sanitaria locale n. 5 ‘Spezzino’ and Others (C‑113/13, EU:C:2014:2440, paragraph50), the Court held that the general principles of transparency and equal treatment ‘flow’ from Articles49 and 56 TFEU.
124See, to that effect, judgments of 12July 1984, Klopp (107/83, EU:C:1984:270, paragraph19); of 7July 1988, Stanton and L’Étoile 1905 (143/87, EU:C:1988:378, paragraph11); of 29April 2004, Commission v Portugal (C‑171/02, EU:C:2004:270, paragraph42); and of 9September 2010, Engelmann (C‑64/08, EU:C:2010:506, paragraph28).
125See, inter alia, judgment of 13November 2008, Coditel Brabant (C‑324/07, EU:C:2008:621, paragraph25 and the case-law cited).
126Judgment of 22October 2015 (C‑552/13, EU:C:2015:713).
127The case dealt with public contracts in the health sector falling within the scope of AnnexIIB to Directive 2004/18.
128Judgment of 22October 2015, Grupo Hospitalario Quirón (C‑552/13, EU:C:2015:713, paragraph28).
129Ibid., paragraphs29 to 33.
130A similar criteria is provided for in Article64(3)(a) of Law 5/1997.
131Judgment of 22October 2015 (C‑552/13, EU:C:2015:713, paragraph29).
132Judgment of 11July 2013 (C‑57/12, EU:C:2013:517, paragraph42).
133Ibid., paragraph43, which refers to the Handbook on the implementation of the Services Directive, Office for Official Publications of the European Communities, 2007.
134See point 56 above.
135Judgment of 11July 2013 (C‑57/12, EU:C:2013:517).
136Ibid., paragraph44. In that regard, the Court ruled that the national court had to determine whether there was an act of public authority conferring, in a clear and transparent manner, on the operators of day-care centres and night-care centres at issue a genuine obligation to provide such services under specific conditions, and whether such an approval may therefore be considered as a mandating act for the purposes of Article2(2)(j) of the Services Directive (judgment of 11July 2013, Femarbel, C‑57/12, EU:C:2013:517, paragraph52).
137See points42 and 43 above.
138See point128 above.
139See, for example, judgments of 5February 2015, Commission v Belgium (C‑317/14, EU:C:2015:63, paragraph22), and of 20December 2017, Simma Federspiel (C‑419/16, EU:C:2017:997, paragraph35 and the case-law cited).
140See, to that effect, judgment of 1June 2010, Blanco Pérez and Chao Gómez (C‑570/07 and C‑571/07, EU:C:2010:300, paragraph53 and the case-law cited).
141See, by way of analogy, judgment of 27February 2020, Commission v Belgium (Accountants) (C‑384/18, EU:C:2020:124, paragraph76).
142Judgments of 27October 2005, Commission v Spain (C‑158/03, not published, EU:C:2005:642, paragraph70), and of 27October 2005, Contse and Others (C‑234/03, EU:C:2005:644, paragraph41). More specifically, the Court held that fundamental freedoms preclude a selection criterion which rewards, by awarding extra points, the proximity of the installation to the place where the services are provided, in so far as that criterion is applied in a discriminatory manner, is not justified by imperative requirements in the general interest, is not suitable for securing the attainment of the objective which it pursues or goes beyond what is necessary to attain it, which is a matter for the national court to determine (judgment of 27October 2005, Contse and Others (C‑234/03, EU:C:2005:644, paragraph79).