European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

Even if all public works, services and supply contracts are now governed by Directive No 2014/24 , the exact nature of the contract is still of great interest since it determines the threshold applicable to the contract in question. Article 10 lays down a number of exclusions for service contracts such as those pertaining to  immovable property, the media, certain types of legal services, civil de …

Subject-matter of the contract

Even if all public works, services and supply contracts are now governed by Directive No 2014/24 , the exact nature of the contract is still of great interest since it determines the threshold applicable to the contract in question. Article 10 lays down a number of exclusions for service contracts such as those pertaining to  immovable property, the media, certain types of legal services, civil defense, civil protection and danger prevention services, public passenger transport services by rail or metro,  political campaign services, or contracts for services relating to civil defense, civil protection and danger prevention. The latter exclusion, pursuant to Article10(h) of the directive is subject to two conditions, namely that those services correspond to the CPV (Common Procurement Vocabulary) codes referred to in that provision and that they are provided by non-profit organizations or associations . The directive does not apply to public service contracts awarded on the basis of an exclusive right  (Art. 11). Lastly service concessions  which were expressly excluded from the scope of Directive No 2004/18 are now governed by a specific text i.e. Directive No 2014/23 of 26 February 2014 on the award of concession contracts. 

Where a contract relates to different aspects - works and services, for example -, the main purpose of the contract is used to define the thresholds applicable to the contract in question . In effect, according to recital 8 of Directive No 2014/24, “a contract shall be deemed to be a public works contract only if its subject-matter specifically covers the execution of activities listed in Annex I, even if the contract covers the provision of other services necessary for the execution of such activities. Public service contracts, in particular in the sphere of property management services, may, in certain circumstances, include works. However, insofar as such works are incidental to the principal subject-matter of the contract, and are a possible consequence thereof or a complement thereto, the fact that such works are included in the contract does not justify the qualification of the contract as a public works contract”. Likewise, Article 2(1)(8), provides that public supply contracts are public contracts having as their object the purchase, lease, rental or hire-purchase, with or without an option to buy, of products. The term also covers, as an incidental matter, siting and installation operations. Thus, the description as supply contract applies where the contract in question relates to a property which will become the property of the contracting authority only at the end of the contract and for which the consideration is fixed in abstract terms  or to goods which are manufactured individually according to the needs of certain users and the use of which requires ancillary advice  or where the contract contains an undertaking to let the work in question . Within the framework of an urban development program, activities consisting in the preparation of the development plan, the proposal and management of the corresponding land consolidation project, obtaining for the administration free of charge plots for public ownership and for the community's public land bank, management of the legal conversion of the plots concerned or even the equitable division of the costs and profits between the parties concerned as well as the transactions for financing and guaranteeing the cost of the investments, works, installations and compensation necessary for the execution of the plan, cannot be classified as “works”, within the meaning of the Article 1 of the directive . 

By contrast, according to Article 3(2) of Directive No 2014/24, contracts which have as their subject two or more types of procurement (works, services or supplies) are awarded in accordance with the provisions applicable to the type of procurement that characterizes the main subject of the contract in question. In the case of mixed contracts consisting partly of services and partly of supplies, the main subject shall be determined “in accordance with which of the estimated values of the respective services or supplies is the highest” . The same rule applies for determining the system applicable to a service contract which consists in services which come within both Title II, Chapter 1  and other services . According to the case law prior to Directive No 2014/24, there was no obligation on the part of the contracting authority to separate from the contract in question the services referred to in Annex II B of Directive No 2004/18 and to award separate contracts in respect of them, where the value of the services falling within Annex II B of the same directive exceeds the value of the services falling with Annex II A . Lastly, all services contracts awarded by a contracting authority fall under the directive without making any distinction between contracts for the purpose of meeting needs in the general interest or other needs .

Case C-220/05 Auroux, Judgment of 18 January 2007, LawLex200900001244JBJ.

Case C-465/17 Falck Rettungsdienste GmbH, Falck A/S, Judgment of 21 March 2019, LawLex201900000754JBJ: The exclusion from the application of the public procurement rules laid down in Article 10(h) of Directive No 2014/24 covers the care of patients in an emergency situation in a rescue vehicle by an emergency worker/paramedic, covered by CPV (Common Procurement Vocabulary) code 75252000 7 (rescue services) and transport by qualified ambulance, which comprises, in addition to the provision of transport, the care of patients in an ambulance by a paramedic assisted by a medical assistant, covered by CPV code 85143000 3 (ambulance services), provided that it is in fact undertaken by personnel properly trained in first aid and it is provided to a patient whose state of health is at risk of deterioration during that transport.

Case C-76/97 Tögel v Niederösterreichische Gebietskrankenkasse [1998] ECR I-5357, LawLex200900001171JBJ.

Case C-411/00 Felix Swoboda [2002] ECR I-10567, LawLex200900000727JBJ.

Case C-126/03 Commission v Germany [2004] ECR I-11197, LawLex200900000444JBJ.

Excluding works concessions, see Case C-187/04 Commission v Italy, Judgment of 27 October 2005, not yet published.

Case C-331/92 Gestión Hotelera Internacional v Comunidad Autónoma de Canarias and others [1994] ECR I-1329, LawLex200900000337JBJ; C-220/05 Auroux and others [2007] ECR I-385, LawLex200900001244JBJ; C-412/04 Commission v Italy [2008] ECR I-619, LawLex200900000744JBJ; C-536/07 Commission v Germany [2009] ECR I-10355, LawLex201100000271JBJ.

Case C-272/91 Commission v Italy [1994] ECR I-1409, LawLex200900002115JBJ.

Case C-300/07 Hans & Christophorus Oymanns [2009] ECR I-4779, LawLex201100000476JBJ.

Case C-213/13 Impresa Pizzarotti & C. SpA, Judgment of 10 July 2014, LawLex201400002218JBJ.

Case C-306/08 Commission v Spain [2011] ECR I-4541, LawLex201200000099JBJ.

Case C-340/04, Carbotermo c. Comune di Busto Arsizio, ECR I-4137, LawLex200900000397JBJ; Case C-323/07, ECR I-57* Summ. pub.

European Business Law

291. Subject-matter of the contract

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291. Subject-matter of the contract

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise