Request for a preliminary ruling from the Tribunal Superior de Justicia de Aragón (Spain) lodged on 11 December 2020 – Asociación Estatal de Entidades de Servicios de Atención a Domicilio (ASADE) v Consejería de Sanidad de la Diputación General de Aragón

(Case C-676/20)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Aragón

Parties to the main proceedings

Applicant: Asociación Estatal de Entidades de Servicios de Atención a Domicilio (ASADE)

Defendant: Consejería de Sanidad de la Diputación General de Aragón

Questions referred

Is national legislation which permits contracting authorities to make use of agreements with private non-profit organisations ― not solely voluntary associations ― to provide all manner of social services to persons in return for reimbursement of costs, without following the procedures in the Procurement Directive [2014/24/EU] and irrespective of the estimated value, simply by classifying the arrangements in question as non-contractual, compatible with EU law ― Article 49 TFEU 1 and Articles 76 and 77 of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 2 (as read with Article 74 and Annex XIV thereof)?

Is national legislation compatible with EU law ― Article 49 TFEU and Articles 76 and 77 of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 (as read with Article 74 and Annex XIV thereof) ― when, with regard to the provision of health and social services of general interest, it enables public procurement legislation to be avoided through the use of public-private agreements that supplement or replace direct provision, not because such agreements are a more appropriate way to provide these services but because they are a means to achieve specific social policy objectives which affect the way in which the service is provided or which the service provider must satisfy in order to be selected, even if the principles of advertising, competition and transparency continue to apply?

If so, is it compatible with EU law ― the provisions cited above, and also Article 15(2)(b) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market 3 ― to restrict these arrangements solely and exclusively to non-profit organisations (not solely voluntary associations), even if the principles of transparency and advertising are observed?

Having regard to Article 15(2)(b) of the Services Directive [2006/123/EC], can giving contracting authorities discretion to make use of public-private agreements in order to appoint non-profit organisations to manage social and health services be interpreted as making access to such services conditional on taking a specific legal form? And if the answer to this question is in the affirmative, is national legislation such as that at issue here (which the State has not notified to the Commission with regard to the requirement concerning legal form) lawful under Article 15(7) of the Services Directive?

If the answers to the previous questions are in the affirmative, must Articles 49 and 56 TFEU, Articles 76 and 77 of the Public Procurement Directive [2014/24/EU] 2014 (as read with Article 74 and Annex XIV thereof) and Article 15(2) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market be interpreted as permitting contracting authorities, when selecting non-profit organisations (not solely voluntary associations) with which to enter into agreements to provide all manner of social services to persons, to include not only the selection criteria set out in Article 2(2)(j) of the said directive but also the criterion that the organisation be established in the place or geographical area where the service is to be provided?

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1 OJ 2012 C 326, p. 47.

2 OJ 2014 L 94, p. 65 (public procurement and repealing Directive 2004/18/EC).

3 OJ 2006 L 376, p. 36.