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

The European legislator has defined a scope of application for Directive No 2014/24 which is particularly extensive in order to allow as broad an application as possible of the principles of free movement of goods, freedom of establishment and freedom to provide services and the principles deriving from them, such as equal treatment, non-discrimination and transparency. 
However, the directive dra …

Excluded contracts

The European legislator has defined a scope of application for Directive No 2014/24 which is particularly extensive in order to allow as broad an application as possible of the principles of free movement of goods, freedom of establishment and freedom to provide services and the principles deriving from them, such as equal treatment, non-discrimination and transparency. 

However, the directive draws up a list of excluded contracts which is exhaustive and strictly interpreted, in Section 3.

Firstly, the directive does not apply to contracts covered by other specific provisions. This is the case pursuant to Article 7 of special sectors referred to by Directive No 2014/25 . The directive does not apply to contracts concluded in the field of telecommunications (Article 8). Contracts covered by specific international rules in conformity with European law are also outside the scope of application of the directive (Article 9). 

Article 10 excludes certain public service contracts by reason of the specific nature of the services: contracts relating to the acquisition or rental of immovable property, to the acquisition, development, production or co-production of program material intended for broadcasting by broadcasters and contracts for broadcasting time , to arbitration and conciliation services, to certain financial services, to employment contracts and research and development services. According to the Court of Justice, individual labor contracts concluded with persons selected on the basis of objective criteria, such as the duration of unemployment, previous experience and the number of minor dependent children they have are covered by the notion of employment contracts .

Contracts awarded on the basis of an exclusive right pursuant to a law, regulation or published administrative provision are not covered by the directive, pursuant to Article 11, provided that these provisions are compatible with the Treaty . The concession of an exclusive service  implies the transfer of public authority prerogatives, not the mere delegation of purely technical activities . Therefore, emergency ambulance services provided by an operator who exercises its own powers derived directly from statute, are exempted from the obligations set forth by the directive . On the other hand, a sector subject to liberalization process, such as postal services, cannot claim application of the derogation .

Pursuant to Article 12 of the directive contracts concluded between entities in the public sector are also excluded where certain conditions are fullfilled. Thus, a public contract awarded by a contracting authority to a legal person governed by private or public law falls outside the scope of Directive No 2014/24, where: the contracting authority exercises over the legal person concerned a control which is similar to that which it exercises over its own departments; more than 80% of the activities of the controlled legal person are carried out in the performance of tasks entrusted to it by the controlling contracting authority or by other legal persons controlled by that contracting authority; and there is no direct private capital participation in the controlled legal person with the exception of non-controlling and non-blocking forms of private capital participation which do not exert a decisive influence on the controlled legal person .

Secret contracts or contracts requiring special security measures do not fall within the directive pursuant to Article 15(3). This is the case of the awarding, without call for tenders, of a public contract to the holder of a military security certificate where possessing that certificate does not constitute a merely administrative formality but requires that strict operational conditions be met . A Member State which relies on that exception must concretely bring evidence that the objective of security could not be attained within a competitive tendering procedure . Likewise, although Article 346 TFEU relating to measures necessary for the protection of the essential interests of the security of a Member State, lays down a system which is derogatory to that resulting from the directive , it cannot be relied on in the context of a supply contract relating to helicopters having only a possible military use .

Lastly, research and development contracts are given special treatment under the directive. The directive only applies to public service contracts for research and development services which are covered by the CPV codes listed in Article 14, provided that the benefits accrue exclusively to the contracting authority for its use in the conduct of its own affairs, and the service provided is wholly remunerated by the contracting authority.

Directive No 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive No 2004/17/EC, OJ L 94 of 28 March 2014.

Case C-337/06 Bayerischer Rundfunk and others [2007] ECR I-11173, LawLex200900000383JBJ: however, the exclusion only relates to public contracts concerning the specific audiovisual activities and cannot be extended to a public contract relating to the cleaning of premises in a public broadcasting body.

Case C-337/05 Commission v Italy [2008] ECR I-2173, LawLex200900000381JBJ; Case C-615/10 Insinööritoimisto Instiimi Oy, Judgment of 7 June 2012, LawLex201200000960JBJ; Case C-187/16 Commission v Austria, Judgment of 20 March 2018, LawLex201800000456JBJ: a Member State cannot, without infringing Union law, directly award service contracts for the production of chip passports, emergency passports, residence permits, identity cards, credit card-sized driving licences and credit card-sized vehicle registration certificates to one operator without an EU-wide call for tenders, on the grounds that the performance of those services falls within the scope of the protection of its essential security interests and requires special security measures,  insofar as the the objective of preventing the disclosure of sensitive information relating to the production of the official documents in question could have been achieved within a competitive tendering procedure. 

Directive No 2014/24 applies to public contracts awarded in the field of defense and security, subject to Article 346 TFEU and Directive No 2009/81 of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defense and security, OJ L 216 du 20 August 2009, 76, which refers to some of those contracts.

Case C-337/05 Commission v Italy [2008] ECR I-2173, LawLex200900000381JBJ.

Case C-260/17 Anodiki Services EPE, Judgment of 25 October 2018, LawLex201800001596JBJ.

Case C-323/07 Termoraggi [2008] ECR I-57*, Summ. pub.: the national court must check whether provisions have been published which gives such a right to the entity.

Case C-225/15 Politano, Judgment of 8 September 2016, LawLex201600001387JBJ: the grant of concessions in the field of betting and gambling does not fall within the scope of the directive.

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

Case C-532/03 Commission v Ireland [2007] ECR I-11353, LawLex200900001034JBJ. 

Case C-220/06 Asociación Profesional de Empresas de Reparto y Manipulado de Correspondencia [2007] ECR I-12175, LawLex200900001245JBJ.

Case C-285/18 Kauno miesto savivaldybe, Kauno miesto savivaldybes administracija, UAB "Irgita", Judgment of 3 October 2019, LawLex202000001656JBJ.

Case C-252/01 Commission v Belgium [2003] ECR I-11859, LawLex200900000974JBJ.

European Business Law

292. Excluded contracts

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

292. Excluded contracts

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise