Provisional text
OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 11 April 2024 (1)
Case C‑28/23
NFŠ a.s.
v
Slovenská republika konajúca prostredníctvom Ministerstva školstva, vedy, výskumu a športu Slovenskej republiky,
Ministerstvo školstva, vedy, výskumu a športu Slovenskej republiky
(Request for a preliminary ruling from the Okresný súd Bratislava III (District Court, Bratislava III, Slovakia))
(Reference for a preliminary ruling – Directive 2014/24/EU – Public works contracts – Concept – Public works contract disguised as another agreement – Legally enforceable reciprocal obligations – Building constructed in accordance with the requirements of the contracting authority – Decisive influence – Relevance of a European Commission decision declaring the agreements to be compatible with the internal market – Directive 89/665/EEC – Applicability – Annulment of a contract – Effects of annulment)
1. In 2013, the Slovak Government signed with a private undertaking (2) a ‘grant agreement’ for the construction of the national football stadium (‘the stadium’) in Bratislava (Slovak Republic).
2. In 2016, the two parties signed a new agreement including a clause granting to the aforementioned undertaking the unilateral option to sell the stadium, under certain conditions, to the State.
3. In 2016, Slovakia notified to the European Commission under Article 108(3) TFEU the publicly funded aid measures, provided for in those agreements, to be used to build the stadium. On 24 May 2017, the Commission, by Decision State Aid SA.46530 – Slovakia National Football Stadium, (3) declared those measures to be compatible with the internal market.
4. In 2020, the Slovak authorities refused to comply with the agreements signed, on the ground that they had from the outset been in breach of the EU public procurement rules. The dispute has given rise to a degree of cross-litigation between the two parties. (4)
5. In one of the disputes forming part of that cross-litigation, which the referring court has not specifically identified, (5) that court has made a request for a preliminary ruling on the interpretation of Directives 2004/18/EC, (6) 2014/24/EU (7) and 89/665/EEC. (8) In particular, it is uncertain whether the agreements described above conceal a public works contract (in which event, their award should have been put out to public tender) and, if so, asks whether any declaration as to their invalidity would have effects ex tunc.
I. Legal framework
A. European Union law
1. Directive 2014/24
6. In accordance with Article 2 (‘Definitions’):
‘1. For the purposes of this Directive, the following definitions apply:
…
(5) “public contracts” means contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services;
(6) “public works contracts” means public contracts having as their object one of the following:
(a) the execution, or both the design and execution, of works related to one of the activities within the meaning of Annex II;
(b) the execution, or both the design and execution, of a work;
(c) the realisation, by whatever means, of a work corresponding to the requirements specified by the contracting authority exercising a decisive influence on the type or design of the work;
…’
2. Directive 89/665
7. Article 1 (‘Scope and availability of review procedures’) provides:
‘1. …
Member States shall take the measures necessary to ensure that … decisions taken by the contracting authorities may be reviewed effectively …
…
3. Member States shall ensure that the review procedures are available, under detailed rules which the Member States may establish, at least to any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement.
…’
8. In accordance with Article 2d (‘Ineffectiveness’):
‘1. Member States shall ensure that a contract is considered ineffective by a review body independent of the contracting authority or that its ineffectiveness is the result of a decision of such a review body in any of the following cases:
(a) if the contracting authority has awarded a contract without prior publication of a contract notice in the Official Journal of the European Union without this being permissible in accordance with [Directive 2014/24/EU or Directive 2014/23/EU];
…’
B. Slovak law
1. Zákon z 26. februára 1964 č. 40/1964 Zb. Občiansky zakonnik (Civil Code) (9)
9. Paragraph 39 of Zákon z 26. februára 1964 č. 40/1964 Zb. Občiansky zakonnik provides:
‘Any legal act which by its content or purpose contravenes or circumvents the law or is contrary to accepted principles of morality shall be invalid’.
10. Paragraph 40a provides that, in certain circumstances, the legal act shall be deemed to be valid unless the person affected by it claims that it is invalid. Invalidity cannot be claimed by the person who caused the invalidity.
2. Zákon z 18. novembra 2015 č. 343/2015 Z. z. o verejnom obstarávaní a o zmene a doplnení niektorých zákonov (Law on public contracts) (10)
11. Paragraph 3(3) of Zákon z 18. novembra 2015 č. 343/2015 Z. z. o verejnom obstarávaní a o zmene a doplnení niektorých zákonov reads:
‘A works contract within the meaning of this Law is a contract the object of which is:
(a) the execution, or both the design and the execution, of construction works related to one of the activities listed in Section 45 of the common public procurement terminology;
(b) the execution, or both the design and the execution, of works; or
(c) the execution of works, irrespective of the form established by the contracting authority or the contracting entity exerting a decisive influence on the type of construction or construction design.’
3. Zákon 300/2008 Z. z. z 2. júla 2008 o organizácii a podpore športu a o zmene a doplnení niektorých zákonov (Law on the organisation and promotion of sport) (11)
12. Paragraph 13 of Zákon 300/2008 Z. z. z 2. júla 2008 o organizácii a podpore športu a o zmene a doplnení niektorých zákonov defines sports infrastructure of special importance as the infrastructure required for international sports competitions and events which meets the requirements of international sports associations, in particular as regards its capacity, facilities, dimensions, technical specifications relating to its construction, including with respect to its use by persons with limited mobility and orientation, the safety of athletes and spectators and training of sports representatives.
II. Facts, dispute and the questions referred for a preliminary ruling
13. By resolution of 10 May 2006, the Slovak Government contemplated the construction of the stadium. In the following years, according to the referring court, the government adopted other resolutions relating to the stadium ‘which provided that the investor or contractor was to be selected by means of a public call for tenders’. (12)
14. ‘Without recording [the act] in any document or register relating to preliminary negotiations, without any selection process or public call for tenders’, (13) the Slovak Government, on 10 July 2013, adopted Resolution No 400/2013, on the basis of which the Ministerstvo školstva, vedy, výskumu a športu Slovenskej republiky (Ministry of Education, Science, Research and Sport of the Slovak Republic; ‘the Ministry of Education’) was to conclude with a particular undertaking (Národný futbalový štadión, a.s.) a memorandum that would set out the conditions for the grant of a subsidy and the construction of the stadium. (14)
15. On 11 July 2013, that memorandum was concluded. (15)
16. On 15 August 2013, the Ministry of Education and Národný futbalový štadión, a.s. signed an agreement setting out the conditions for granting a subsidy for the construction of the stadium. (16)
17. According to clause 6(1) and (2) of that agreement, the Ministry of Education undertook to publish an invitation to submit an application for a grant to construct the stadium and to sign with the selected candidate a grant agreement which would set out the rights, duties, conditions and obligations of both parties. (17)
18. On 21 November 2013, the Ministry of Education and Národný futbalový štadión, a.s. signed the grant agreement, (18) financed from the State budget.
19. In that agreement, the Ministry of Education undertook to provide EUR 27 200 000 by way of a grant for the construction project, and Národný futbalový štadión, a.s. undertook to co-finance at least 60% of the costs of constructing the stadium.
20. On 10 May 2016, the Ministry of Education, acting on behalf of the Slovak Republic as future buyer, concluded with NFŠ, as future seller, a new agreement (19) (‘the agreement to enter into a future sales agreement’) in which NFŠ was given the option to transfer ownership and operation of the stadium to the Republic of Slovakia by means of a subsequent purchase and sale. (20)
21. On the same day (10 May 2016), the Ministry of Education and NFŠ signed an addendum to the 2013 grant agreement which amended many of its articles. (21)
22. The entry into force of the agreement to enter into a future sales agreement was made subject to compliance with three cumulative conditions:
– Its publication in the State Central Register of Contracts.
– The adoption by the Commission of a decision assessing the transactions provided for in the agreement to enter into a future sales agreement and sale and in the grant agreement, in accordance with the criteria governing the compatibility of State aid with the internal market.
– The issue by the Úrad pre verejné obstarávanie Slovenskej republiky (Public Procurement Regulatory Authority, Slovakia) of a report on the conformity of the transactions provided for in the agreement to enter into a future sales agreement with public procurement legislation.
23. With regard to the second and third of the conditions set out above, (22) the order for reference states that:
– By Decision SA.46530, the Commission declared the State aid to be compatible with the internal market within the meaning of Article 107(3)(c) TFEU.
– The Public Procurement Regulatory Authority ‘did not adopt a binding position or carry out any checks in relation to the transaction provided for in the agreement to enter into a future sales agreement’. (23) Its chair simply sent a non-binding response by letter of 8 July 2016.
24. The foregoing actions triggered a number of pending legal disputes, including that referred to in paragraph 20(2) of the order for reference, which appears to have given rise to the present request for a preliminary ruling.
25. The referring court considers it necessary to clarify whether the grant agreement and the agreement to enter into a future sales agreement concluded between the Ministry of Education and a non-competitively selected private-law entity constitute a ‘public works contract’ within the meaning of Article 1(2)(b) of Directive 2004/18 or Article 2(1)(6)(c) of Directive 2014/24, given that:
– The grant agreement constitutes State aid approved by the Commission pursuant to Article 107(3)(c) TFEU.
– The obligations contained in the grant agreement include the obligation, on the part of the State, to provide a grant, and the obligations, on the part of the private-law entity, to construct a building in accordance with the conditions specified by the Ministry of Education, and to allow a sports organisation to use part of that building.
– The obligations contained in the agreement to enter into a future sales agreement include a unilateral option granted to the private-law entity in the form of an obligation on the State to purchase the constructed building.
– Those agreements entail a framework of reciprocal obligations between the Ministry of Education and the private-law entity which are linked in terms of subject matter and time.
26. In the event that EU public procurement legislation is applicable, the referring court wishes to ascertain whether, in accordance with Article 2d(1)(d) and (2) of Directive 89/665, circumvention of the award rules laid down in respect of public works contracts is capable of rendering those agreements absolutely invalid ex tunc.
27. In those circumstances, the Okresný súd Bratislava III (District Court, Bratislava III, Slovakia) has referred the following questions to the Court of Justice for a preliminary ruling:
‘(1) Do a grant agreement and an agreement to enter into a future sales agreement, concluded between a ministry (the State) and a person governed by private law selected outside competition procedures, constitute “public works contracts” within the meaning of Article 1(2)(b) of Directive 2004/18 or Article 2[(1)](6)(c) of Directive 2014/24 where the grant agreement constitutes State aid approved by the [Commission] for the purposes of Article 107(3)(c) TFEU, the grant agreement contains an obligation on the State to grant a subsidy as well as an obligation on the person governed by private law to construct the building in accordance with conditions specified by the ministry and to allow a sports organisation to use a part of that building, and the agreement to enter into a future agreement contains a unilateral option conferred on the person governed by private law in the form of an obligation on the State to purchase the constructed building, while those agreements constitute a framework of mutual obligations between the ministry and the person governed by private law which are linked in terms of time and subject matter?
(2) Does Article 1(2)(b) of Directive 2004/18 or Article 2[(1)](6)(c) of Directive 2014/24 preclude national legislation of a Member State under which any legal act which by its content or purpose contravenes or circumvents the law or is contrary to accepted principles of morality is absolutely invalid (that is to say, from the outset/ex tunc) where that infringement of the law consists of a serious infringement of the rules on public procurement?
(3) Do Article 2d(1)(a) and Article 2d(2) of Directive 89/665 preclude national legislation of a Member State under which any legal act which by its content or purpose contravenes or circumvents the law or is contrary to accepted principles of morality is absolutely invalid (that is to say, from the outset/ex tunc) where that infringement of the law consists of a serious infringement (circumvention) of the rules on public procurement, as in the main proceedings?
(4) Must Article 1(2)(b) of Directive 2004/18 or Article 2[(1)](6)(c) of Directive 2014/24 be interpreted as precluding ex tunc the assumption that an agreement to enter into a future sales agreement, such as that at issue in the main proceedings, has produced legal effects?’
III. Procedure before the Court of Justice
28. The request for a preliminary ruling was registered at the Court of Justice on 24 January 2023.
29. Written observations have been lodged by NFŠ, the Ministry of Education, the Czech and Slovak Governments and the Commission. All of the parties except the Czech Government attended the hearing held on 1 February 2024.
IV. Assessment
A. Admissibility
30. The content of the order for reference might support the inference that the Slovak Government and the company NFŠ (or its predecessor) entered into a number of agreements which, when examined as a whole, exhibit the characteristics of a public contract. If this was concluded without having been previously and publicly offered to other tenderers, it would be flawed and its validity would therefore be compromised. (24)
31. NFŠ disagrees with that view (which, by contrast, is shared by the other parties and interveners in the preliminary ruling proceedings). In its opinion, the agreements at issue: (a) do not fall within the scope of Directives 2004/18 and 2014/24; and (b) form part of a scheme of aid granted by the Slovak State for the construction of the stadium and awarded lawfully, as the Commission confirmed when examining them in accordance with Articles 107 and 108 TFEU.
32. In principle, requests for a preliminary ruling from national courts enjoy a presumption of relevance. (25) In order for them to be admissible, however, the referring court must set out in sufficient detail the reasons why, in its view (and not only in the view of the parties to the dispute), the reference is necessary and relevant.
33. In the present case, the [national] court’s reasoning was particularly important given the complexity of the matter. However, the order for reference confined itself, in essence to, reproducing the arguments of the litigants, after having provided a summary of the facts and a transcription of the potentially applicable legislation or case-law.
34. In Chapter V of the order for reference (‘Reasons for the request for a preliminary ruling and the relationship between the provisions of EU law and the legislation applicable to the national proceedings’), the referring court again sets out the positions of the parties and devotes only one paragraph (64) to disclosing what appear to be its doubts, which it later details in the form of the first and second questions referred for a preliminary ruling.
35. In those circumstances, it is not surprising that NFŠ has challenged the admissibility of the reference for a preliminary ruling on the ground that it does not comply with Article 94 of the Rules of Procedure of the Court of Justice. It notes that ‘there is no assessment by the [national] court itself’ and that the national court simply ‘accepts entirely uncritically and largely copies the wording proposed by one of the parties to the dispute’. (26)
36. NFŠ also argues that the order for reference contains ‘incorrect and misleading’ findings of fact. Contrary to what the referring court asserts, that company submits that the grant agreement does not at any point oblige it to build the stadium, and that there was no requirement for the stadium to be built in accordance with the conditions specified by the Ministry of Education. Nor could the grant agreement and the agreement to enter into a future sales agreement, which are separate in terms of time and subject matter, be said to constitute a ‘single agreement’. Finally, the Public Procurement Regulatory Authority found on two occasions that there was no infringement of the public procurement rules in this case. (27)
37. Although the plea of inadmissibility is robustly reasoned, it cannot succeed since the Court of Justice has the minimum material it requires in order to reply to the referring court. It will, however, be necessary to clarify the points on which the order for reference is unclear, and those clarifications will determine whether EU public procurement legislation is applicable.
38. As regards the description of the facts, which has been criticised by NFŠ, I need only recall the settled case-law of the Court to the effect that, ‘since the national court alone has jurisdiction to find and assess the facts in the case before it, the Court must in principle confine its examination to the matters which the court or tribunal making the reference has decided to submit to it and thus proceed on the basis of the situation which that court or tribunal considers to be established’. (28)
B. Applicable directive
39. The order for reference refers both to Directive 2004/18 and to Directive 2014/24, which repeals the former directive. It therefore falls to be determined which of those directives is applicable to the dispute, on the basis, in principle, that that directive will be in force when the contracting authority chooses the type of procedure to be followed. (29) That criterion may be extrapolated, mutatis mutandis, to cases in which, strictly speaking, there has not been a formalised procurement procedure.
40. The two agreements (one for the grant of a subsidy and the other to enter into a future sales agreement) were signed on 10 July 2013 and 10 May 2016 respectively. They therefore fall on either side of the date of expiry of the time limit for transposition of Directive 2014/24, which Article 90(1) thereof sets at 18 April 2016.
41. I am inclined to focus on Directive 2014/24 for two reasons: the first being in order to respect the overall view taken by the referring court; the other being that the final terms of the grant agreement were established on 10 May 2016, after that directive had entered into force.
42. In actual fact, the issue is of little practical significance, since the definitions of ‘public contract’ and ‘public work contracts’ are equivalent in the two directives.
C. First question referred for a preliminary ruling
43. In principle, it is for the national courts, and not the Court of Justice, to interpret the terms of the agreements at issue in disputes pending before them. As I have already stated, the Court must abide by the description of the factual situation with which it has been provided by the national court.
44. In this case, however, that situation is far from clear. The referring court:
– States that the grant agreement entails an obligation for NFŠ to build the stadium, but fails to clarify what legally enforceable effect would follow from any failure to comply with that obligation. In the absence of any further indication, this might simply be, for example, the requirement to pay back the subsidy.
– States that the stadium must be constructed in accordance with the conditions laid down by the Ministry of Education, but does not say to what extent those conditions are specified. (30)
– Indicates that the grant agreement entails the free transfer of the right to use the stadium to a sports organisation. That transfer, however, is said to have been removed under the 2016 addendum. (31)
– Highlights that the agreement to enter into a future sales agreement gives NFŠ a unilateral option to oblige the State to buy the stadium from it. It does not explain, however, whether the State in turn has the possibility of obliging NFŠ to hand the stadium over to it in the event that that company does not take up the aforementioned option.
– States, finally, that the collection of agreements constitutes a framework of reciprocal obligations which it fails to specify (with the exception of those attaching to the acquisition of a subsidy).
45. All of those ambiguities may have a bearing on the outcome of the dispute, even if it is assumed that there was a collection of agreements between NFŠ and the Slovak Government.
46. In order to determine whether that collection of agreements actually constituted a public works contract subject to Directive 2014/24, it will be necessary to establish, inter alia, whether there existed between NFŠ and the Slovak Government binding, reciprocal and legally enforceable obligations (32) indicating that the agreement was for pecuniary interest; (33) whether the Slovak Government exerted a decisive influence on the configuration of the stadium project; and whether or not it acquired ownership of the stadium or the right to make the works constructed available [to the public].
47. That assessment must take account of the considerations set out by the Commission in Decision SA.46530 in connection with the content of the grant agreement and the agreement to enter into a future sales agreement, where it found that, through those agreements, the Slovak State had granted public aid compatible with the internal market.
48. I would recall in any event that the mere grant of a State subsidy involving the movement of public funds (in the present case, for the purpose of constructing a stadium) does not in itself amount to the conclusion of a public works contract. As recital 4 of Directive 2014/24 states, ‘the Union rules on public procurement are not intended to cover all forms of disbursement of public funds, but only those aimed at the acquisition of works, supplies or services for consideration by means of a public contract’. (34)
49. On the aforementioned bases, I shall analyse the essential elements of a public works contract and the extent to which they are present in this dispute.
1. Essential elements of a public works contract
50. Article 2(1)(6) of Directive 2014/24 states that, ‘for the purposes of this directive’, ‘… “public works contracts” means public contracts having as their object one of the following: (a) the execution, or both the design and execution, of works related to one of the activities within the meaning of Annex II; (b) the execution, or both the design and execution, of a work; (c) the realisation, by whatever means, of a work corresponding to the requirements specified by the contracting authority exercising a decisive influence on the type or design of the work’.
51. In order to be recognised as a public works contract, the contract must be a contract for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities, the object of which is among those listed in the previous point.
52. The Court has outlined the features of such a contract as follows:
– ‘In a public works contract, the contracting authority receives a service consisting of the realisation of works which it seeks to obtain and which has a direct economic benefit for it’. (35)
– ‘That economic benefit is clearly established where it is provided that the public authority is to become owner of the works or work which is the subject of the contract’. ‘[It] may also be held to exist where it is provided that the contracting authority is to hold a legal right over the use of the works which are the subject of the contract, in order that they can be made available to the public’. (36)
– ‘The economic benefit may also lie in the economic advantages which the contracting authority may derive from the future use or transfer of the work, in the fact that it contributed financially to the realisation of the work, or in the assumption of the risks were the work to be an economic failure’. (37)
– A public works contract ‘requires that the contractor assume a direct or indirect obligation to carry out the works which are the subject of the contract and that that obligation be legally enforceable in accordance with the procedural rules laid down by national law’. (38)
53. From another point of view, the Court has considered it ‘essential … that the work should be executed in accordance with the requirements specified by the contracting authority; the means of that execution are immaterial’. (39) This would be the case where the contracting authority ‘has taken measures to define the characteristics of the work or, at the very least, has had a decisive influence on its design’. (40)
54. In short, the Court has established a number of criteria for identifying when the contracting authority exercises such a decisive influence: it will be present ‘if it can be shown that that influence is exercised over the architectural structure of that building, such as its size, external walls and load-bearing walls’. (41) On the other hand, [the requirement that] ‘the specifications in the technical standards applicable under statutory provisions [be] complied with [or the requirement that] the specifications of the building comply with the normal “state of the art” on the market concerned … cannot be regarded as measures taken … in order to influence the design of the … building …’. (42)
2. Assessment of those elements in the dispute in the main proceedings
55. NFŠ submits that the characteristics of a public contract are not present, inasmuch as: (a) there is no legally enforceable obligation (on it) to build the stadium; (b) the grant agreement and the agreement to enter into a future sales agreement are not for pecuniary interest and the Slovak State does not derive any direct economic interest from them; (c) the Ministry of Education has not laid down any specific technical requirements in respect of the project.
56. NFŠ further argues that, from a material point of view of view, it complied with the public procurement rules when building the stadium, in that it put out to public tender the works relating to it. (43) The obligation to ensure that construction of the stadium, being financed from State funds, complied with public procurement legislation was contained in the grant agreement and in paragraph 8 of Decision SA.46530.
57. For my part, I recognise that a reading of the order for reference and the subsequent course of the preliminary ruling proceedings do not allow me to form a categorical opinion on the nature of the ‘collection of agreements’ at issue.
58. In the first place, it is not clear what performance the Slovak State may claim from NFŠ under the grant agreement and the agreement to enter into a future sales agreement, this being a premiss which it is for the referring court to determine.
59. Neither the written observations nor the oral argument presented at the hearing support the inference that the Slovak State would have any right to take legal action against NFŠ to compel it to build the stadium should that undertaking ultimately decide not to do so. The difference is that, in that event, NFŠ would not have received the grant, or would have lost it, or would be obliged to pay it back. This in itself, however, has nothing to do with the performance of a works contract.
60. As I have already stated, in order for there to be a genuine works contract, it is essential that the successful tenderer should specifically take on the obligation to carry out the works forming the subject of the acquisition and that that obligation should be legally enforceable. The contracting authority (in this case, the Ministry of Education) must acquire the immovable property on which the works are carried out and, if necessary, take legal action to compel the tenderer awarded the contract to hand the property over to it, if it holds over the use of the works a legal right enabling it to ensure that they are made available to the public.
61. In the second place, there is also no clarity as to the acquisition of the stadium. Of course, such an obligation would not derive from the grant agreement but, were it to exist, from the agreement to enter into a future sales agreement. The referring court will have to consider whether NFŠ, once the sports infrastructure had been built, had a legally enforceable obligation to transfer it to the Slovak State, which the latter could assert.
62. As was highlighted at the hearing, (44) all the indications are that the agreement to enter into a future sales agreement gave NFŠ the option either to remain the owner of the stadium and continue to operate it (or assign its operation to third parties), or to transfer it the Slovak State, if it suited it to do so.
63. In Decision SA.46530, the Commission points up the option given to NFŠ, which enables it (but does not oblige it) to sell the infrastructure to the Slovak State if that undertaking wishes to do so. Only in that event would the State become the owner of the stadium. (45)
64. In the third place, it is not certain either that the Slovak State obtained a direct economic benefit from the two agreements at issue once the obligation to make the stadium facilities available free of charge to the Slovak Football Federation had been removed from the grant agreement. (46) The State’s interest (and subsequent indirect benefit) seems to be confined to the generic promotion of the national sport. (47)
65. In the fourth place, it is, at the very least, doubtful whether the agreements at issue gave the Ministry of Education a decisive influence over the construction project. Subject to verification, which is once again a matter for the referring court, all the evidence seems to indicate that the only criteria laid down in this regard were those found in the UEFA Regulations on the construction of category 4 stadiums and those contained in the general Slovak rules on sports infrastructure projects.
66. Now, an analysis of the UEFA criteria (48) shows that they consist of a number of mandatory parameters in relation to the minimum structural requirements which a stadium must meet in order to be classified in a certain category. (49) However, those criteria are amenable to a variety of architectural solutions that can be developed within very broad margins of professional creativity.
67. The design of football stadiums that comply with the UEFA criteria allows for an extensive range of creative alternatives, both in the external configuration of the stadium and in the structuring of its internal amenities. Those criteria do not, in my opinion, contain the detailed technical solutions which a true proprietor of the work could impose on the tenderer awarded the contract.
68. The Ministry of Education also cited before the referring court (50) a provision of Slovak law relating to sports infrastructure projects. (51) However, for the very reason that it lays down general conditions, that provision does not prescribe specific requirements in respect of a particular stadium.
69. The mere presence of the Ministry of Education on a monitoring committee (52) does not necessarily mean that it exerted a decisive influence on the design and implementation of the project. In its written observations, the Ministry of Education no longer mentions that fact and references the UEFA Regulations as the factor denoting the government’s influence on the project. (53)
70. In short, it is my view that there are many reservations to raise as against the classification of the ‘collection of agreements’ at issue as a genuine public works contract within the meaning of Article 2(1)(6) of Directive 2014/24. Its classification as such or otherwise will be contingent upon the referring court’s final assessment of a number of factors informing the adjudication of the case which it has itself failed to mention with sufficient clarity.
3. Relevance of Decision SA.46530
71. The Commission has a central role in the system of State aid control established in Articles 107 and 108 TFEU, which form part of Chapter I (‘Rules on competition’) of Title VII of the TFEU.
72. In this case, as I have explained, the Commission examined the grant agreement and the agreement to enter into a future sales agreement. In Decision SA.46530, it evaluated the public aid associated with those agreements (54) and declared it to be compatible with the internal market.
73. The Commission argues before the Court that, in Decision SA.46530, it did not analyse compliance with the rules governing public procurement procedures. (55) That assertion must be qualified, however, in the light of the mandatory terms of Article 8 of that decision, (56) which the Commission itself described at the hearing as an essential condition for the compatibility of the aid with the internal market.
74. A reading of paragraph 8 shows that what mattered to the Commission was that the construction of the stadium (which represents the very essence of a works contract, whether public or private) should be the subject of a competitive process respecting the rules applicable to public contracts.
75. It is true that, as a private entity, NFŠ does not fall within the scope of the concept of contracting authority referred to in Article 2(1)(1) of Directive 2014/24. However, in the case where the State compels that entity to comply with public procurement legislation (and provides it with public funds to do so), and Decision SA.46530 imposes the same condition, it is my view that, from a material point of view and for the purposes of the stadium’s construction, the public procurement rules contained in that directive become applicable and NFŠ was put in a situation analogous to that of a contracting authority.
76. EU public procurement legislation aims to ensure that ‘public procurement is opened up to competition’. (57) This is reflected in Article 18 of Directive 2014/24, which prohibits ‘artificially narrowing competition’. Competition would be unduly narrowed where the design of the procurement is made ‘with the intention of unduly favouring or disadvantaging certain economic operators’.
77. The Commission can actively intervene in defence of competition where public procurement does not comply with the rules laid down in, inter alia, Directive 2014/24 in order to safeguard this objective. (58) I do not see any reason why it should not do so when faced with an examination of the viability of State aid measures resulting from agreements concluded by public authorities with private entities.
78. In particular, it is my view that the Commission could not have failed to examine whether the form in which the public aid granted to NFŠ was structured masked the existence of a public contract which should have been put out to tender. To my mind, it did so implicitly, which explains paragraph 8 of its Decision SA.46530.
79. In short, Decision SA.46530 is based on the premiss that there was no obligation to transfer ownership of the stadium to the Slovak Republic. (59) That assumption, to which I have already referred, cannot be called into question by the referring court, which must respect the Commission’s assessment of the factors determining the existence of State aid.
80. Commission Decision SA.46530 must therefore be taken into account when assessing the circumstances surrounding the dispute.
4. Interim conclusion
81. A grant agreement and an agreement to enter into a future sales agreement which are concluded between a State body and a private undertaking and in which the private undertaking is granted public funds for the purpose of the construction of a sports infrastructure and is given the unilateral option of selling it to the State, respectively, cannot be classified as a public works contract if they do not give rise to a legally enforceable obligation on the part of the State to purchase the infrastructure and if the State does not derive a direct economic benefit or has not had a decisive influence on the design of the work. It is for the referring court to determine whether those conditions are met in the dispute pending before it.
D. Second, third and fourth questions referred for a preliminary ruling
82. These questions presuppose that, taken as a whole, the agreements at issue constitute a public works contract which should have been subject to the requirements of Directive 2014/24. For the sake of argument, my reflections will be based on that working hypothesis.
83. On that premiss, the referring court states that, under the national provisions, the agreements at issue will be invalid ex tunc if they seriously infringe the public procurement rules by seeking to circumvent them. It asks, in essence, whether those national provisions are compatible with Directive 2014/24 (Article 2(1)(6)(c)) and Directive 89/665 (Article 2d(1)(a) and (2)).
84. These do not strike me as being hypothetical questions, since the outcome of the dispute in the main proceedings may depend to some extent on the answers to them.
1. Applicability of Directive 89/665
85. In my view, Directive 89/665 is not applicable to this case, since it provides for mechanisms for reviewing ‘decisions taken by the contracting authorities’. Those mechanisms are available to ‘… any person having or having had an interest in obtaining a particular public supply or public works contract and who has been or risks being harmed by an alleged infringement’.
86. Article 2d of Directive 89/665 governs the ineffectiveness (of contracts) which may be declared by a review body independent of the contracting authority where the latter has awarded a contract without prior publication of a contract notice (paragraph 1(a)) and leaves it to national law to determine the consequences of such ineffectiveness (paragraph 2).
87. If the proposition put forward by the Slovak authorities were endorsed, they themselves (more specifically, the Ministry of Education) would have infringed the public procurement rules by not putting the contracts at issue out to tender.
88. Directive 89/665 is not designed to protect the public authorities from infringements which they themselves have committed, but to allow those who have been harmed by the actions of those contracting authorities to challenge them.
89. Article 2d of Directive 89/665 presupposes that a person entitled to challenge the conduct of the contracting authority has made use of the relevant review procedure. If, at the end of that review, the body adjudicating on it declares the contract in question to be ineffective, the provisions contained in the various paragraphs of that article will be triggered. As I have already said, however, Directive 89/665 does not make provision for the contracting authority to challenge its own decisions.
90. The position is different if national law provides ways for a public authority (or an administrative review body) to review the legality of its previous decisions. (60) Such an eventuality is governed not by Directive 89/665 but by the relevant provisions of national law, in accordance with which it will fall to be determined to what extent an exception may be made to the classic rule venire contra factum propium nulli conceditur. (61)
91. Directive 89/665 does not bring about complete harmonisation or, therefore, provide for ‘all possible remedies in matters of public procurement’. (62) Member States have a margin of discretion in establishing review procedures that ensure the purity of processes for the award of public contracts.
2. Ineffectiveness of public contracts awarded without prior publication of a contract notice
92. The solutions inferred from the provisions of Directive 89/665, in so far as they relate to the ineffectiveness of public contracts, may be extendable to procedures in which a declaration as to the invalidity of a contract awarded without prior publication of a contract notice is obtained by means other than those provided for in that directive.
93. In my Opinion in CROSS Zlín, (63) I analysed this issue through arguments which could be applied to the questions raised by the referring court in this case, notwithstanding that Directive 89/665 is not directly applicable in this case. In that Opinion, I maintained that:
– In principle, ‘the judgment annulling the award of a public contract should … prevent the contract from producing its effects. The annulment of the award would be retroactive (ex tunc) to the point in time when the award was made …’. (64)
– ‘That general rule is nevertheless subject to exceptions and provision to that effect is made by Directive 89/665 (in particular for public contracts which have already been concluded) due to the problems associated with a declaration that a contract is ineffective. … Member States may, for example, where formal requirements have been infringed, “consider the principle of ineffectiveness to be inappropriate. In those cases, Member States should have the flexibility to provide for alternative penalties”’. (65)
– A judgment upholding an action for annulment may concern a contract which has already been concluded without applying the consequences associated with its nullity in full, making rulings tailored to the circumstances at issue. (66)
94. From an examination of Article 2(7), Article 2d(1) to (3) and Article 2e(1) of Directive 89/665, I inferred that: (67)
– In certain circumstances, national rules may provide that a judgment annulling the award of a public contract either: (a) has retroactive effect, affecting ex tunc all of the contractual obligations; or (b) does not inevitably have the result of depriving that contract of its effects.
– The ineffectiveness of a contract will, however, be maintained if a national court of a Member State (which has made provision to that effect in its legislation) delivers a judgment declaring a contract award null and void, attaching consequences ex tunc to its ruling.
95. Consequently, there is nothing to prevent national law from providing that a judgment declaring a works contract awarded without a prior call for tenders to be ineffective will produce effects ex tunc, in the case where a call for tenders was compulsory because the contract in question should have been subject to the public procurement rules.
V. Conclusion
96. In the light of the foregoing, I propose that the answer to be given to the Okresný súd Bratislava III (District Court, Bratislava III, Slovakia) should be that:
Article 2(1)(6) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC
must be interpreted as meaning that a grant agreement and an agreement to enter into a future sales agreement which are concluded between a State body and a private undertaking and in which the private undertaking is granted public funds for the purpose of the construction of a sports infrastructure and is given the unilateral option of selling it to the State, respectively, cannot be classified as a public works contract if they do not give rise to a legally enforceable obligation on the part of the State to purchase the infrastructure and if the State does not derive a direct economic benefit or has not had a decisive influence on the design of the work. It is for the referring court to determine whether those circumstances are present in this case.
There is nothing to prevent national law from providing that a judgment declaring a works contract awarded without a prior call for tenders to be ineffective will produce effects ex tunc, in the case where a call for tenders was compulsory because the contract in question should have been subject to the public procurement rules.