JUDGMENT OF THE COURT

of 28 March 2023

in Case E-4/22

Stendi AS & Norlandia Care Norge AS v Oslo kommune

(Freedom to provide services – Article 36 EEA – Notion of ‘services’ – Article 37 EEA – Article 39 EEA – Article 32 EEA – Exercise of official authority – Public procurement – Directive 2014/24/EU – Public service contract – ‘ideelle organisasjoner’– Reservation of contracts – Exclusion of profit-making operators)

(2023/C 281/03)

In Case E-4/22, Stendi AS & Norlandia Care Norge AS v Oslo kommune v/ordføreren – REQUEST to the Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice by the Oslo District Court (Oslo tingrett), concerning the interpretation 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, in particular point (9) of Article 2(1) and Articles 74 to 77, and Articles 31, 32, 36 and 39 of the Agreement on the European Economic Area, the Court, composed of Páll Hreinsson, President (Judge-Rapporteur), Bernd Hammermann, and Ola Mestad (ad hoc), Judges, gave judgment on 28 March 2023, the operative part of which is as follows:

A contract for pecuniary interest providing for the provision of long-term places in nursing homes, in circumstances such as those of the main proceedings, must be regarded as a contract relating to the provision of services within the meaning of point (9) of Article 2(1) of Directive 2014/24/EU on public procurement.

The activity of operating nursing homes, in circumstances such as those of the main proceedings, even where coercive health care may need to be provided, within a legal framework such as that described in the request for an advisory opinion, cannot be regarded as being directly and specifically connected with the exercise of official authority. Accordingly, the exception in Article 39 EEA, read in conjunction with Article 32 EEA, does not apply to such activities.

Articles 74 to 77 of Directive 2014/24/EU must be interpreted as not precluding national legislation which reserves for organisations such as those at issue in the main proceedings (ideelle organisasjoner) the right to participate in a procedure, involving a competitive bidding process, for the award of public contracts for the provision of social or other specific services listed in Annex XIV to Directive 2014/24/EU, even where those organisations do not satisfy the requirements laid down in Article 77 of that directive, provided that the following two conditions are fulfilled. First, in order to comply with the principle of equal treatment of economic operators, as set out in Article 76 of that directive, the legal and contractual framework within which the activity of those organisations is carried out must actually be grounded in the principles of universality and solidarity, which are inherent to a social welfare system, as well as in reasons of economic efficiency and suitability, and contribute effectively to the social purpose and objectives of solidarity and budgetary efficiency on which that system is based. Second, that the principle of transparency, as specified in Articles 75 and 76 of that directive, is respected.