Case C‑574/12

Centro Hospitalar de Setúbal EPE

and

Serviço de Utilização Comum dos Hospitais (SUCH)

v

Eurest (Portugal) — Sociedade Europeia de Restaurantes Lda

(Request for a preliminary ruling from the Supremo Tribunal Administrativo)

‛Reference for a preliminary ruling — Public service contracts — Directive 2004/18/EC — Award of the contract without a procurement procedure (in-house award) — Contractor legally separate from the awarding authority — Centre for hospital assistance and support services — Non-profit association operating in the public interest — Majority of the partners made up of awarding authorities — Minority of the partners made up of entities under private law, non-profit charitable associations — Activity carried out of at least 80% of the annual turnover for the partners’ benefit’

Summary — Judgment of the Court (Fifth Chamber), 19 June 2014

Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Scope — Contract awarded to a non-profit association having partners which are private social solidarity institutions carrying out non-profit activities — Included

(European Parliament and Council Directive 2004/18)

Where the contractor under a public contract is a non-profit association which, at the time of the award of the contract, has as partners not only public sector entities but also private social solidarity institutions carrying out non-profit activities, the requirement for similar control in order for an award of a public contract to be regarded as an in-house operation, is not met, with the result that Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts applies. The fact that the participation of private partners in the contractor is merely as a minority is not sufficient to call those conclusions into question.

Furthermore, the fact that the contractor is an association governed by private law and that it is non-profit is irrelevant as regards the application of the rules of EU law on public contracts and, in consequence, as regards the exception for in-house operations. Such a fact does not preclude the contractor in question from carrying out an economic activity.

(see paras 33, 42, 44, operative part)

Case C‑574/12

Centro Hospitalar de Setúbal EPE

and

Serviço de Utilização Comum dos Hospitais (SUCH)

v

Eurest (Portugal) — Sociedade Europeia de Restaurantes Lda

(Request for a preliminary ruling from the Supremo Tribunal Administrativo)

‛Reference for a preliminary ruling — Public service contracts — Directive 2004/18/EC — Award of the contract without a procurement procedure (in-house award) — Contractor legally separate from the awarding authority — Centre for hospital assistance and support services — Non-profit association operating in the public interest — Majority of the partners made up of awarding authorities — Minority of the partners made up of entities under private law, non-profit charitable associations — Activity carried out of at least 80% of the annual turnover for the partners’ benefit’

Summary — Judgment of the Court (Fifth Chamber), 19 June 2014

Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Scope — Contract awarded to a non-profit association having partners which are private social solidarity institutions carrying out non-profit activities — Included

(European Parliament and Council Directive 2004/18)

Where the contractor under a public contract is a non-profit association which, at the time of the award of the contract, has as partners not only public sector entities but also private social solidarity institutions carrying out non-profit activities, the requirement for similar control in order for an award of a public contract to be regarded as an in-house operation, is not met, with the result that Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts applies. The fact that the participation of private partners in the contractor is merely as a minority is not sufficient to call those conclusions into question.

Furthermore, the fact that the contractor is an association governed by private law and that it is non-profit is irrelevant as regards the application of the rules of EU law on public contracts and, in consequence, as regards the exception for in-house operations. Such a fact does not preclude the contractor in question from carrying out an economic activity.

(see paras 33, 42, 44, operative part)