Provisional text
JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
28 September 2017 (*)
(State aid — Financing measures granted by the
Netherlands authorities for the creation and introduction of the TenderNed
electronic procurement platform — Decision finding no State aid —
Non-economic services of general interest)
In Case T‑138/15,
Aanbestedingskalender BV, established in Ede
(Netherlands),
Negometrix BV, established in Amsterdam
(Netherlands),
CTM Solution BV, established in Breukelen
(Netherlands),
Stillpoint Applications BV, established in
Amsterdam,
Huisinga Beheer BV, established in Amsterdam,
represented by C. Dekker and L. Fiorilli,
lawyers,
applicants,
v
European Commission, represented by
P.-J. Loewenthal and K. Herrmann, acting as Agents,
defendant,
supported by
Kingdom of the Netherlands, represented by
M. Bulterman, B. Koopman and M. Noort, acting as Agents,
and by
Slovak Republic, represented by B. Ricziová,
acting as Agent,
interveners,
ACTION pursuant to Article 263 TFEU seeking the
annulment of Commission Decision C(2014) 9548 final of 18 December 2014 on
State aid SA.34646 (2014/NN) (ex 2012/CP) — The Netherlands E-procurement
platform TenderNed,
THE GENERAL COURT (Seventh Chamber),
composed of V. Tomljenović, President,
E. Bieliūnas (Rapporteur) and A. Marcoulli, Judges,
Registrar: C. Heeren, Administrator,
having regard to the written part of the procedure and
further to the hearing on 5 April 2017,
gives the following
Judgment
Background to the dispute
1 The applicants,
Aanbestedingskalender BV, Negometrix BV, CTM Solution BV, Stillpoint
Applications BV and Huisinga Beheer BV, are undertakings governed by Netherlands
law which offer various services relating to e-procurement in the
Netherlands.
Measure at issue
2 TenderNed is an
e-procurement platform which was set up and is operated by PIANOo
Expertisecentrum Aanbesteden, a sub-department of the Netherlands Ministry of
Economic Affairs, Agriculture and Innovation (‘the Ministry’).
3 TenderNed
offers a number of functionalities, made available to contracting authorities
and special sector entities (‘contracting authorities’) free of charge. It
provides the following functionalities:
– a
publication module, which can be used for the publication of tender notices as
well as associated tender documents (‘the publication module’);
– a
tendering (submission) module, offering functionalities such as the exchange of
questions and answers, and the uploading and downloading of tenders and bids.
That module also includes a ‘virtual company’ section in which economic
operators can introduce and manage their data (‘the submission module’);
– an
e-guide, which supports interested parties in using TenderNed (‘the
e-guide’).
4 The publication
module is divided into two parts, one part for the publication of, inter alia,
tender notices (‘the noticeboard’) and a second part for the uploading of
associated tender documents to the TenderNed platform.
5 TenderNed also
sends statistical information to the national parliament and to the European
Commission concerning public procurement in the Netherlands.
Administrative procedure
6 On 6 April
2012, Stichting Crow, Negometrix, CTM Solution and Stillpoint Applications (‘the
complainants’) lodged a complaint (‘the complaint’) with the Commission, seeking
a declaration that the financing provided by the Kingdom of the Netherlands for
the creation and introduction of the electronic procurement (‘e-procurement’)
platform TenderNed constituted unlawful State aid.
7 The complaint
was forwarded to the Netherlands authorities, which submitted their comments on
27 June 2012.
8 The
complainants submitted further information to the Commission on 30 August,
18 October and 17 December 2012, 12 March and 14 November
2013 and 6 June 2014.
9 The Netherlands
authorities provided additional information to the Commission on 31 August,
4 October and 21 November 2012, 8 October, 24 November and
4 December 2014.
10 On 14 January 2013,
the Commission sent a letter to the complainants containing a preliminary view
on their complaint. In that letter, the Commission stated that the measure at
issue did not involve State aid a priori. On 23 July 2013, the Commission
sent another letter to the complainants, informing them that it had also arrived
at the provisional conclusion that, a priori, the measure at issue did not
constitute State aid.
11 On 4 November 2014,
the complainants sent the Commission a formal request to act pursuant to
Article 265 TFEU, asking the Commission to adopt a formal position on the
measure at issue within two months.
Contested decision
12 On 18 December 2014,
the Commission adopted Decision C(2014) 9548 final on State aid SA.34646
(2014/NN) (ex 2012/CP) — The Netherlands E-procurement platform TenderNed
(‘the contested decision’).
13 In recital 18 of the
contested decision, the Commission stated, in essence, that TenderNed’s
activities consisted in assisting contracting authorities in organising and
executing public procurement processes. In that respect, the Commission noted,
in recital 54 of the contested decision, inter alia, that TenderNed had been set
up and carried out its activities in accordance with the Wet houdende nieuwe
regels omtrent aanbestedingen (Aanbestedingswet 2012) (Law establishing new
public procurement rules) of 1 November 2012 (Stb. 2012, No 542; ‘the
Procurement Law’).
14 The Commission observed,
in essence, in recital 13 of the contested decision, that the Procurement Law
had entered into force on 1 April 2013 and transposed the obligations under
Directive 2004/17/EC of the European Parliament and of the Council of
31 March 2004 coordinating the procurement procedures of entities operating
in the water, energy, transport and postal services sectors (OJ 2004 L 134,
p. 1) and Directive 2004/18/EC of the European Parliament and of the
Council of 31 March 2004 on the coordination of procedures for the award of
public works contracts, public supply contracts and public service contracts (OJ
2004 L 134, p. 114). In addition, the Commission stated that that law
had been adopted in parallel with European Union-level policy developments that
ultimately resulted in the adoption 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 (OJ 2014 L 94, p. 65) and Directive
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 2004/17 (OJ 2014 L 94,
p. 243).
15 In recital 21 of the
contested decision, the Commission stated in essence that, when the contested
decision was adopted, only the noticeboard was mandatory. It added, however,
that the Netherlands authorities had indicated their intention to make mandatory
the electronic placement of associated tender documents on the TenderNed
platform and the submission module when implementing Directives 2014/24 and
2014/25. In other words, the access to and submission of tender documents via
TenderNed was to become mandatory as well.
16 In addition, in recitals
57 and 58 of the contested decision, the Commission referred to the specific
obligations imposed on Member States by Directives 2004/17, 2004/18, 2014/24 and
2014/25 (‘the procurement directives’), such as the publication of tender
notices and of decisions awarding public contracts, offering guidance and
information on the interpretation and application of EU public procurement law
and supplying statistical information to the Commission, emphasising their
relevance as regards some of TenderNed’s activities.
17 Thus, in recitals 62 to
64 of the contested decision, the Commission examined the functionalities of
TenderNed and concluded, in essence, that they enabled contracting authorities
to fulfil their obligations under the Procurement Law, which flowed from the
procurement directives, and enabled the Kingdom of the Netherlands to fulfil its
obligations under those directives. The Commission inferred from this that
TenderNed’s activities derived entirely from the need to support the public
procurement activities of the contracting authorities and the obligations of the
Kingdom of the Netherlands under the procurement directives. The Commission
added that, since contracting authorities acted in their capacity as public
authorities when complying with the statutory obligations laid down by the
Procurement Law, TenderNed should be regarded, by extension, as acting in a
similar capacity, providing those authorities with the means to ensure that
those obligations are complied with. Moreover, the Commission considered, in
essence, that similar reasoning applied where TenderNed’s activities consisted
in ensuring that the Kingdom of the Netherlands complied with its obligations
under the procurement directives. The Commission stated that TenderNed’s
activities should therefore not be considered economic in nature and that the
funding of that platform did not constitute State aid within the meaning of
Article 107(1) TFEU.
18 In recitals 66 to 68 of
the contested decision, the Commission examined and rejected the complainants’
arguments. In essence, it considered, first, that the procurement directives did
not prohibit the creation of a platform such as TenderNed, secondly, that
limiting TenderNed’s activities solely to the noticeboard functionality would
not enable contracting authorities to comply fully with their obligations under
the Procurement Law and, thirdly, that, although ensuring that public
authorities were able to comply with their obligations under the Procurement Law
by channelling public procurement might be an economic activity for the
complainants, that did not mean that it was inherently an economic activity.
Rather, it was a service of general interest which could be commercially
exploited only so long as the State failed to offer that service itself.
19 In recital 70 of the
contested decision, the Commission concluded that the measure at issue did not
involve State aid within the meaning of Article 107(1) TFEU.
Procedure and forms of order sought
20 By application lodged at
the Court Registry on 25 March 2015, the applicants brought the present
action.
21 By documents lodged at
the Court Registry on 13 July 2015, the Kingdom of the Netherlands and the
Slovak Republic applied for leave to intervene in support of the form of order
sought by the Commission.
22 By orders of
28 October 2015, the President of the Third Chamber of the Court allowed
those interventions.
23 Following a change in the
composition of the Chambers of the Court, the Judge-Rapporteur was assigned to
the Seventh Chamber, to which the present case was accordingly allocated.
24 The applicants claim that
the Court should:
– annul the
contested decision;
– order the
Commission to pay the costs;
– take such
further action as the Court may deem appropriate.
25 The Commission, supported
by the Kingdom of the Netherlands and the Slovak Republic, contends that the
Court should:
– dismiss
the action;
– order the
applicants to pay the costs.
26 At the hearing the
applicants withdrew their third head of claim and the Court took formal notice
of that withdrawal.
Law
27 In support of their
action, the applicants essentially raise a single plea in law, alleging
infringement of Article 107(1) TFEU on the ground that the Commission made
a manifest error of assessment and an error of law by finding that the services
provided by TenderNed could be regarded as non-economic services of general
interest.
28 The applicants have put
forward nine main arguments in support of their plea:
– contrary
to the Commission’s assertion in recital 16 of the contested decision, the
Procurement Law clearly designates TenderNed as the central platform for
e-procurement (argument 1);
– the
Commission, in recital 20 of the contested decision, wrongly characterised
TenderNed’s functionalities as a ‘basic system’ (argument 2);
– contrary
to the Commission’s assertions in recital 62 of the contested decision, the
publication module of TenderNed is not necessary for the purpose of ensuring
compliance with the principle of transparency, which contracting authorities are
required to observe in public procurement procedures (argument 3);
– the
Commission erroneously considered, in recital 62 of the contested decision, that
the noticeboard function, the publication module and the submission module made
it possible to ensure that the public procurement rules of the European Union
and of the Kingdom of the Netherlands were complied with (argument 4);
– ensuring
compliance with the obligations of the procurement directives may be achieved by
means other than the implementation of a centralised platform such as TenderNed
(argument 5);
– TenderNed
offers services which do not find their origin in the obligations imposed by the
procurement directives (argument 6);
– TenderNed
does not act in the capacity of a public authority (argument 7);
– TenderNed’s
compatibility with Directives 2014/24 and 2014/25 is irrelevant for the purpose
of determining whether or not TenderNed’s activities are economic (argument
8);
– the
Procurement Law allows private initiatives on the e-procurement market, which is
an indication of the economic nature of TenderNed’s activities (argument 9).
29 The applicants submit, in
essence, that the Commission erred in concluding that TenderNed’s activities are
non-economic. In their submission, TenderNed’s activities do not intrinsically
form part of the exercise of public powers. In addition, the legal framework
governing e-procurement services expressly authorises market mechanisms. It
follows that TenderNed’s activities must be classified as economic
activities.
30 As a preliminary point,
it should be borne in mind that for a measure to be classified as aid within the
meaning of Article 107(1) TFEU, all the conditions set out in that
provision must be fulfilled. First, there must be an intervention by the State
or through State resources. Secondly, the intervention must be likely to affect
trade between Member States. Thirdly, it must confer an advantage on the
recipient by favouring certain undertakings or the production of certain goods.
Fourthly, it must distort or threaten to distort competition (see judgment of
17 December 2008, Ryanair v Commission, T‑196/04,
EU:T:2008:585, paragraph 36 and the case-law cited).
31 The application of
Article 107(1) TFEU to the present case therefore entails a verification as
to whether, as the applicants submit, TenderNed should have been regarded as an
undertaking, within the meaning of EU competition law.
32 In that regard, it
follows from the case-law that, for the purposes of the application of EU
competition law, an undertaking is any entity engaged in an economic activity,
irrespective of its legal status and the way in which it is financed. It must be
noted that, according to settled case-law, any activity consisting in offering
goods or services on a given market is an economic activity. Thus, the State
itself or a State entity may act as an undertaking (see judgments of
10 January 2006, Cassa di Risparmio di Firenze and Others, C‑222/04,
EU:C:2006:8, paragraphs 107 and 108 and the case-law cited, and of
12 July 2012, Compass-Datenbank, C‑138/11, EU:C:2012:449,
paragraph 35 and the case-law cited).
33 By contrast, activities
connected with the exercise of public powers are not of an economic nature
justifying the application of the competition rules laid down in the FEU Treaty
(see, to that effect, judgments of 10 January 2006, Cassa di Risparmio
di Firenze and Others, C‑222/04, EU:C:2006:8, paragraph 31, and of
12 July 2012, Compass-Datenbank, C‑138/11, EU:C:2012:449,
paragraph 36 and the case-law cited).
34 In addition, a legal
entity, and inter alia a public entity, may be regarded as an undertaking in
relation to only part of its activities, if the activities which form that part
must be classified as economic activities (see judgment of 12 July 2012,
Compass-Datenbank, C‑138/11, EU:C:2012:449, paragraph 37 and the
case-law cited).
35 In so far as a public
entity exercises an economic activity which can be separated from the exercise
of its public powers, that entity, in relation to that activity, acts as an
undertaking, while, if that economic activity cannot be separated from the
exercise of its public powers, the activities exercised by that entity as a
whole remain activities connected with the exercise of those public powers (see
judgment of 12 July 2012, Compass-Datenbank, C‑138/11,
EU:C:2012:449, paragraph 38 and the case-law cited).
36 In addition, the fact
that a product or a service supplied by a public entity and connected to the
exercise by it of public powers is provided in return for remuneration laid down
by law and not determined, directly or indirectly, by that entity, is not alone
sufficient for the activity carried out to be classified as an economic activity
and the entity which carries it out as an undertaking (see judgment of
12 July 2012, Compass-Datenbank, C‑138/11, EU:C:2012:449,
paragraph 39 and the case-law cited).
37 By contrast, services
which, without forming part of the exercise of public powers, are carried out in
the public interest and without a profit motive and are in competition with
those offered by operators pursuing a profit motive have been classified as
economic activities (see judgment of 6 September 2011, Scattolon,
C‑108/10, EU:C:2011:542, paragraph 44 and the case-law cited).
38 In order to determine
whether TenderNed’s activities, as defined in the contested decision, form part
of the exercise of public powers or whether they can be classified as economic
activities, it must be verified whether those activities, by their nature, their
aim and the rules to which they are subject, are connected with the exercise of
public powers or whether they have an economic character which justifies the
application of the EU competition rules (see, to that effect, judgments of
18 March 1997, Diego Calì & Figli, C‑343/95, EU:C:1997:160,
paragraphs 16, 18 and 23 and the case-law cited, and of 28 February
2013, Ordem dos Técnicos Oficiais de Contas, C‑1/12, EU:C:2013:127,
paragraph 40 and the case-law cited).
39 In that respect, the
applicants submit that none of the functionalities offered by TenderNed, which
they analyse separately, are connected, by their nature, their aim or the rules
to which they are subject, to the exercise of public powers.
40 It is apparent from
recitals 62 to 64 of the contested decision that the Commission considered, in
essence, that TenderNed’s activities were not economic in nature, since the
functionalities that it offered constituted the means by which the contracting
authorities and the Kingdom of the Netherlands fulfilled their obligations under
the procurement directives and the Procurement Law and were therefore connected
with the exercise of public powers.
41 It is appropriate, first
of all, to verify whether the functionalities offered by TenderNed are
independent of each other, so that it is necessary to demonstrate that each of
them, taken separately, is connected with the exercise of public powers, or
whether, on the contrary, those functionalities should be seen as forming part
of a whole from which they cannot be separated, so that the question whether
TenderNed’s activity is connected with the exercise of public powers must be
verified by taking account of the interaction between them.
42 In that respect, it must
be noted that TenderNed’s various functionalities were designed, as noted in
recitals 18, 42, 62 and 63 of the contested decision, for the purpose of
assisting contracting authorities in their electronic public procurement
activities and, in particular, of providing them with the means to comply with
their statutory obligations in relation to the organisation and execution of
public procurement processes, from the publication of the tender notice to the
award of the public contract itself.
43 The Procurement Law,
which imposes those obligations on the contracting authorities, thereby
transposes the procurement directives. Accordingly, it is necessary to examine
those directives and, in particular, Directives 2014/24 and 2014/25.
44 One of the objectives
pursued by Directives 2014/24 and 2014/25 is that procurement procedures should
be carried out via electronic means throughout the European Union. That is
reflected, in particular, in recitals 52 and 63, respectively, of those
directives, in which they define the scope of the obligation, placed on Member
States, to make mandatory the use of electronic means at all stages of the
procurement procedure. In addition, when implementing e-procurement, Member
States were obliged to provide guidance and support to contracting authorities
and economic operators, as well as to provide various statistical information
concerning public procurement to the Commission, as explained in recital 121 of
Directive 2014/24 and in recital 127 of Directive 2014/25.
45 TenderNed was created and
implemented by the Kingdom of the Netherlands precisely in order to comply with
those obligations. It is true that when it was created and introduced in 2012,
Directives 2014/24 and 2014/25 had not yet been adopted. However, the proposals
for those directives date from 20 December 2011 and the accompanying
explanatory memoranda already envisaged ‘the mandatory transmission of notices
in electronic form, the mandatory electronic availability of the procurement
documents and ... the switch to fully electronic communication, in particular
e-submission, in all procurement procedures within a transition period of two
years’. Likewise, the need to provide support in that respect to contracting
authorities and economic operators and the need to monitor the application of
public procurement rules were envisaged (see, as regards the first point,
recitals 51 and 52 of the proposal for Directive 2014/24 and recitals 59 and 60
of the proposal for Directive 2014/25 and, as regards the second point,
Article 84 of the proposal for Directive 2014/24 and Article 93 of the
proposal for Directive 2014/25).
46 Thus, as mentioned in
recital 18 of the contested decision, those functional requirements were taken
into account in the design and construction of the TenderNed system.
47 In that respect, the
publication module and the submission module offered by TenderNed are electronic
means enabling, respectively, the communication of notices and the provision of
access to procurement documents, in accordance with Article 53 of Directive
2014/24 and Article 73 of Directive 2014/25, on the one hand, and the
communication of requests for participation and, in particular, the
communication of tenders, in accordance with Article 22 of Directive
2014/24 and Article 40 of Directive 2014/25, on the other hand. The e-guide
is useful only in relation to the publication and submission modules, the
operation and use of which it explains, in accordance with Article 83(4) of
Directive 2014/24 and Article 99(4) of Directive 2014/25. Lastly, TenderNed
provides statistical information to the Commission, an obligation imposed by
Article 85 of Directive 2014/24 and Article 101 of Directive
2014/25.
48 Accordingly, it is as a
whole that TenderNed helps to achieve the objective of harmonisation and
technical integration in the field of public procurement pursued by Directives
2014/24 and 2014/25.
49 In addition, the
Commission, in essence, emphasised in recital 67 of the contested decision that
if TenderNed’s activities were reduced to those of a mere noticeboard, that
would not allow the contracting authorities to comply with all their statutory
obligations under the Procurement Law, in particular the obligation to carry out
a tendering procedure which ensures that purchases by contracting authorities
are made in the most rational, transparent and fair manner possible.
50 Moreover, at the hearing,
the Kingdom of the Netherlands stated that TenderNed’s various functionalities
had to be regarded as forming part of a whole, enabling contracting authorities
to comply with their obligations.
51 It must be noted that
considering TenderNed’s various functionalities in isolation, or reducing
TenderNed to one of those functionalities, by regarding them as independent of
each other, when they are all indispensable for e-procurement and constitute
different facets of one and the same activity, would interfere with that
activity and disregard the objective pursued by Directives 2014/24 and 2014/25,
as noted in paragraphs 44 and 45 above.
52 The functionalities
offered by TenderNed must therefore be understood as being linked to each other
and forming different facets of the same activity.
53 Thus, it is necessary to
examine whether TenderNed’s activities may indeed be connected with the exercise
of public powers.
54 The Commission indicated,
in recital 33 of the contested decision, that the Netherlands authorities had
emphasised that TenderNed provided services of general interest, by performing
activities which were connected with the exercise of public authority. In
essence, according to recital 34 of the contested decision, the Netherlands
authorities considered that safeguarding the principles of equal treatment and
transparency and ensuring the effective functioning of public procurement rules
and compliance with those rules by contracting authorities was a matter of
public policy. In other words, TenderNed pursued the general interest of
enabling compliance with the procurement directives. The Netherlands authorities
stated that the obligations imposed by the European Union with regard to public
procurement were inherently linked to the exercise of public authority and
public powers.
55 In that respect, it must
be pointed out that only contracting authorities are subject to public
procurement rules, since it is their status as public authorities that entails
the application of specific rules when they are contemplating purchasing goods
or services. By contrast, private operators are free to purchase goods or
services and are therefore not required to initiate a specific procedure such as
the public procurement procedure. Thus, as the Commission stated, in recital 63
of the contested decision, contracting authorities must comply with those rules
because they are considered part of local, regional or central government and
are therefore presumed not to take into account purely industrial or commercial
factors when purchasing goods or services.
56 The importance of public
procurement within the European Union must also be borne in mind. As stated in
recital 2 of Directive 2014/24 and recital 4 of Directive 2014/25, public
procurement is one of the market-based instruments to be used to achieve smart,
sustainable and inclusive growth while ensuring the most efficient use of public
funds, an objective of the Europe 2020 Strategy set out in Commission
Communication COM(2010) 2020 final of 3 March 2010, entitled ‘Europe 2020,
a strategy for delivering smart, sustainable and inclusive growth’. Accordingly,
contracting authorities, by virtue of their very status as public authorities,
are responsible for both the effectiveness of public spending and the
achievement of common societal goals, criteria which they must take into account
when deciding to award a public contract.
57 Thus, as the Commission
rightly indicated, in essence, in recital 64 of the contested decision, when
contracting authorities initiate a procurement procedure and comply with the
procurement rules, they are acting as public authorities.
58 In addition, it must be
noted that TenderNed provides its services free of charge and that it is
apparent from the case-law that the fact that a body is non-profit-making is a
relevant, albeit not sufficient, factor for the purpose of determining whether
or not an activity is of an economic nature (see, to that effect, judgment of
26 March 2009, SELEX Sistemi Integrati v Commission,
C‑113/07 P, EU:C:2009:191, point 116).
59 It follows from the
foregoing that by their nature and purpose — which is to provide
contracting authorities, free of charge, with functionalities, ranging from the
publication of tender notices and the submission of tenders to the award of
public contracts, in accordance with the applicable rules, namely the
procurement directives and the Procurement Law — the activities of
TenderNed, which was created and is directly used by the Ministry, are closely
linked to the activity of public procurement by contracting authorities and are
therefore connected with the exercise of public powers.
60 Consequently, in
accordance with the case-law cited in paragraph 33 above, the Commission
was entitled to conclude that TenderNed’s activities were not of an economic
nature.
61 That conclusion cannot be
invalidated by the applicants’ arguments.
62 In the first place, the
applicants question, in their fourth argument, whether TenderNed’s
functionalities may be connected with the exercise of public powers. In that
respect, they submit that, contrary to the Commission’s conclusion in recital 62
of the contested decision, the publication and submission modules are not
sufficient to ensure that calls for tenders are transparent and that public
procurement procedures are properly conducted in accordance with the public
procurement rules. According to the applicants, if public contracts that fall
within the scope of the procurement directives are, in breach of the rules, not
published on TenderNed, the Netherlands authorities will not be able to ensure
compliance with, for example, the principle of transparency. They therefore
conclude that the publication module and the submission module merely provide
tools which are used by contracting authorities to prepare their calls for
tenders and by economic operators to submit bids. Lastly, they observe that
TenderNed is prone to down-times and malfunctions, to an extent unheard of on
the e-procurement market.
63 The Court observes that
the applicants’ argument is based on a misinterpretation of the contested
decision and demonstrates a misunderstanding of the objective of TenderNed. As
the Kingdom of the Netherlands submitted in its statement in intervention,
although there are control mechanisms built into TenderNed that carry out a
partial control of the accuracy of notices, the purpose of its activities is not
to monitor or to penalise infringements of the public procurement rules —
tasks which are the responsibility of the national courts or the Autoriteit
Consument en Markt (the Netherlands Authority for Consumers and Markets) —
but rather to assist the contracting authorities in complying with their
statutory obligations under the procurement directives and the Procurement
Law.
64 Thus, the obligatory use
of the publication module ensures that tender notices are published whereas the
use of the submission module ensures that public contracts are properly
implemented, in accordance with, inter alia, the principles of transparency and
equal treatment as well as the public procurement rules which must be complied
with in public procurement procedures.
65 In addition, as the
Commission observed in the defence, the Netherlands authorities have taken all
possible steps to ensure that the public procurement rules are complied with,
but it cannot be required, in order for those measures to be connected with the
exercise of public powers, that they must guarantee full compliance with the
rules that they are intended to apply. The responsibility for correct
implementation remains with the contracting authorities and cannot be guaranteed
by TenderNed alone, as the Kingdom of the Netherlands noted in its statement in
intervention.
66 Lastly, the applicants’
argument alleging that TenderNed is prone to malfunctions is ineffective, since
any problems encountered in its use cannot change the fact that it was created
and implemented in order to assist contracting authorities in public procurement
procedures.
67 At the hearing, the
applicants also submitted that, contrary to the Commission’s assertions in the
defence, the judgment of 16 July 2014, Zweckverband
Tierkörperbeseitigung v Commission (T‑309/12, not published,
EU:T:2014:676), did not justify the conclusion that TenderNed was connected with
the exercise of public powers, but rather, on the contrary, supported their
argument, namely that TenderNed’s activities were economic in nature.
68 It must be noted that, in
that judgment, the Court, in essence, made a distinction between the disposal
and transformation of animal by-products, on the one hand, and ensuring that
those by-products were correctly transformed or disposed of at all times, on the
other. It concluded that the first activity — the economic significance of
which and the possibility that private companies could be tasked with it were
expressly acknowledged in the Tierische Nebenprodukte-Beseitigungsgesetz (Law on
the elimination of animal by-products) of 25 January 2004 (BGBl. 2004 I,
p. 82), transposing and applying, inter alia, Regulation (EC)
No 1069/2009 of the European Parliament and of the Council of
21 October 2009 laying down health rules as regards animal by-products and
derived products not intended for human consumption (Animal by-products
Regulation) (OJ 2009, L 300, p. 1) — was an economic activity, whereas
the task of ensuring that such products were properly transformed and disposed
of, which was incumbent upon the competent authorities of the German
Länder themselves, was a task forming part of the exercise of public
powers (see, to that effect, judgment of 16 July 2014, Zweckverband
Tierkörperbeseitigung v Commission, T‑309/12, not published,
EU:T:2014:676, paragraphs 59 and 63).
69 In the present case, it
must be pointed out that, according to the procurement directives, the Member
States are required to ensure that an adequate system is in place on their
territory so as to guarantee that public procurement is carried out
electronically, but they are free to choose the means of achieving that
objective, as, moreover, the Commission implicitly acknowledged in recital 66 of
the contested decision. In that respect, a distinction may be drawn, like the
distinction made in the judgment of 16 July 2014, Zweckverband
Tierkörperbeseitigung v Commission (T‑309/12, not published,
EU:T:2014:676), between, on the one hand, e-procurement and, on the other hand,
ensuring that such procurement is not only feasible, but will also be carried
out in compliance with the statutory obligations imposed on contracting
authorities.
70 It must be held that
ensuring that e-procurement will be actually be carried out and comply with the
public procurement rules forms part of the exercise of public powers. Not only
is it required by the procurement directives, but also the Netherlands
legislature decided that that task should be the responsibility of the Ministry,
which is, according to Article 4.13 of the Procurement Law, responsible for
the organisation, maintenance and security of an electronic system for public
procurement.
71 Accordingly, TenderNed,
by providing, free of charge, functionalities which ensure that e-procurement is
conducted throughout the Netherlands in accordance with the procurement
directives and the Procurement Law, and which was set up by the Ministry for
that purpose, forms part of the exercise of public powers.
72 In the second place, the
applicants dispute, in their seventh argument, that each of TenderNed’s
functionalities may be connected with the exercise of public powers. First, the
applicants submit, as regards the noticeboard, that the fact that the
procurement directives did not make the use of a central platform mandatory for
the publication of tender notices confirms that the noticeboard cannot be
regarded as being connected with the exercise of public powers. In addition, the
applicants dispute that the present case is analogous to that which gave rise to
the judgment of 12 July 2012, Compass-Datenbank (C‑138/11,
EU:C:2012:449). They submit, first of all, that, unlike the obligation imposed
on the Member States to open a central register containing data on companies by
Article 3(1) of First Council Directive 68/151/EEC of 9 March 1968 on
coordination of safeguards which, for the protection of the interests of members
and others, are required by Member States of companies within the meaning of the
second paragraph of Article 58 of the Treaty, with a view to making such
safeguards equivalent throughout the Community (OJ, English Special Edition,
1968(I), p. 41), as amended by Directive 2003/58/EC of the European
Parliament and of the Council of 15 July 2003 (OJ 2003, L 221, p. 13),
at issue in the case that gave rise to the judgment of 12 July 2012,
Compass-Datenbank (C‑138/11, EU:C:2012:449), the procurement directives
do not require the Member States to create a noticeboard centralising all tender
notices, such as that offered by TenderNed. Next, the applicants submit that
neither the procurement directives nor the Procurement Law provide for penalties
in the event that a contracting authority acts in breach of the requirements for
the publication of tender notices, which constitutes a fundamental difference
from the case that gave rise to the judgment of 12 July 2012,
Compass-Datenbank (C‑138/11, EU:C:2012:449). Lastly, Directive 68/151
established an obligation to provide a location where the required information
on companies can be consulted, whereas the procurement directives merely state
that contracting authorities must announce public procurement procedures in
accordance with certain conditions.
73 In that respect, it
suffices to note that the question whether or not the creation of a centralised
system such as TenderNed was provided for by the procurement directives and the
question whether provision is made for penalties in the event of breach of the
obligations imposed by those directives are not decisive for the purpose of
determining whether TenderNed’s activities are economic in nature or whether the
present case is analogous to that in the judgment of 12 July 2012,
Compass-Datenbank (C‑138/11, EU:C:2012:449).
74 As regards the
verification of whether TenderNed’s activity was economic, it must be noted that
the Commission, in recitals 62 and 63 of the contested decision, did not refer
to the need to have a centralised platform or to the need for a penalty in the
event of a breach of the obligations imposed by the procurement directives, in
order to justify its assertion that TenderNed’s activities were non-economic. It
is the fact that TenderNed provides, inter alia, the means enabling contracting
authorities to comply with the public procurement rules, as set out in the
procurement directives and the Procurement Law, which led the Commission to
conclude that TenderNed’s activities were non-economic.
75 As regards the issue
whether the present case is analogous to that in the judgment of 12 July
2012, Compass-Datenbank (C‑138/11, EU:C:2012:449), neither the fact that
the procurement directives do not require the use of a centralised platform for
the publication of notices, nor the fact that non-compliance with obligations is
penalised are sufficiently specific characteristics for it to be concluded that
the present case is different from or, on the contrary, analogous to that which
gave rise to the judgment of 12 July 2012, Compass-Datenbank
(C‑138/11, EU:C:2012:449).
76 On the other hand, as the
Commission stated in the defence, the fact that, in the present case,
TenderNed’s activities consist in providing the means to comply with, inter
alia, the statutory obligation to publish incumbent upon contracting authorities
is decisive for the purpose of applying the approach taken in the judgment of
12 July 2012, Compass-Datenbank (C‑138/11, EU:C:2012:449).
77 In that respect, it must
be borne in mind that, according to the Court of Justice, data collection in
relation to undertakings, on the basis of a statutory obligation incumbent on
those undertakings to disclose the data and powers of enforcement related
thereto, forms part of the exercise of public powers. Consequently, such an
activity is not an economic activity (judgment of 12 July 2012,
Compass-Datenbank, C‑138/11, EU:C:2012:449, paragraph 40). Equally,
an activity consisting in the maintenance and making available to the public of
the data thus collected, whether by a simple search or by means of the supply of
print-outs, in accordance with the applicable national legislation, is not an
economic activity either, since the maintenance of a database containing such
data and making that data available to the public are activities which cannot be
separated from the activity of collecting the data. The collection of the data
would be rendered largely useless in the absence of the maintenance of a
database which stores the data for the purpose of consultation by the public
(judgment of 12 July 2012, Compass-Datenbank, C‑138/11,
EU:C:2012:449, paragraph 41).
78 In the present case, it
follows from Article 4.13 of the Procurement Law that there is a statutory
obligation incumbent upon the Ministry to create an electronic system on which
contracting authorities are required to publish, inter alia, their tender
notices and decisions awarding public contracts in order to comply with their
publication obligation under the procurement directives and the Procurement
Law.
79 As mentioned in recital
61 of the contested decision, the statutory obligations to publish tender
notices incumbent upon contracting authorities follow from Articles 1.18,
2.62 and 3.56 of the Procurement Law, according to which, in essence,
contracting authorities are required to publish their tender notices on the
e-procurement system, namely TenderNed, if the public contracts in question fall
within the scope of the relevant directives, or if, despite the fact that they
do not fall within the scope of those directives, the contracting entities have
nevertheless voluntarily decided to award them under the public procurement
procedure. The statutory obligations to publish decisions awarding public
contracts are incumbent upon contracting authorities, in accordance with
Articles 2.134 and 3.78 of the Procurement Law, where they concern public
contracts falling within the scope of the procurement directives. In the latter
case, according to Articles 2.134 and 3.78 of the Procurement Law, such
decisions must also be published on the e-procurement system, namely
TenderNed.
80 Consequently, TenderNed’s
activities consisting in providing a noticeboard, in order to allow the
publication of the tender notices and decisions awarding public contracts that
the contracting authorities are required to communicate in accordance with their
statutory obligations, are not economic activities.
81 Accordingly, even if the
noticeboard were separated from the rest of TenderNed’s activities, it would
remain, in accordance with the case-law established in the judgment of
12 July 2012, Compass-Datenbank (C‑138/11, EU:C:2012:449), connected
with the exercise of public powers.
82 Moreover, it must be
noted that the Kingdom of the Netherlands, in its statement in intervention,
points out that TenderNed prevents the fragmentation of information over a
number of different platforms, by centralising the publication of, inter alia,
tender notices. In that respect, during the hearing, when questioned on that
point by the Court, the Kingdom of the Netherlands stated that contracting
authorities could indeed use commercial operators for e-procurement, but that
those operators were then required to publish the tender notices on TenderNed,
so that the contracting authorities complied with their publication obligations
under the Procurement Law.
83 On that basis, although
the existence of a central platform was not regarded by the Commission as
conclusive evidence that TenderNed’s activities are non-economic and that the
introduction of such a platform was not required by Directives 2014/24 or
2014/25, it must nonetheless be noted that, as the Commission essentially points
out in recital 66 of the contested decision, the existence of a single central
platform bringing together all tender notices ensures that companies can access
information relating to public contracts in an easier and more transparent
manner, and thus pursues the objective established in the procurement directives
of simplifying considerably the publication of public tenders and making the
procurement procedures more transparent.
84 Secondly, the applicants
submit that the Commission did not take due account of the fact that the
possibility of creating tender notices and that of actually publishing those
notices were two distinct features. In that respect, they submit that it is now
possible to import tender notices created by other systems and that contracting
authorities may therefore also comply with their obligation to publish notices
on the noticeboard without using the TenderNed publication module.
85 Questioned during the
hearing, the applicants clarified that their argument should be understood as
drawing a distinction between the activity of publication in itself and the
technical means enabling publication. Thus, while they consider that the
activity of publication as such is not an economic activity, the technical means
enabling publication do in fact constitute an economic activity.
86 In that respect, it must
be pointed out, as the Commission stated in the defence, that the applicants
make an artificial distinction between publishing and the technical means
enabling publication. Since there are statutory obligations to publish notices
and decisions on a central platform such as TenderNed, providing contracting
authorities with the tools enabling them to create a tender notice which
complies with certain formal and substantive criteria guarantees that such
notices will be published correctly. In addition, although contracting
authorities may use commercial operators for the purpose of publishing their
tender notices, those operators are nevertheless required to publish on
TenderNed and are, therefore, obliged to use the technical means provided by the
platform, in the same way as the contracting authorities which did not use their
services.
87 Since publication on a
noticeboard and the technical means enabling such publication are, in this case,
inextricably linked, the applicants’ argument that they are separate must be
rejected and it is sufficient to refer, as regards the issue whether the
activity of publishing on the noticeboard is connected with the exercise of
public powers, to paragraphs 76 to 81 above.
88 Thirdly, the applicants
submit that the Commission has not put forward any convincing line of argument
to support the claim that the submission module and the e-guide are connected,
within the meaning of the judgment of 12 July 2012, Compass-Datenbank
(C‑138/11, EU:C:2012:449), with the exercise of public powers.
89 In that respect, as
regards, first of all, the e-guide, as the Commission indicated in recital 62 of
the contested decision, read in conjunction with recital 58 of that decision,
and in the defence, it fulfils the obligations incumbent upon the Kingdom of the
Netherlands, under Article 83(4) of Directive 2014/24 and
Article 99(4) of Directive 2014/25, to provide, free of charge, information
and guidance concerning the interpretation and the application of EU procurement
law and to support contracting authorities in planning and conducting
procurement procedures.
90 It is indisputable that
assistance in the form of a guide to the use of TenderNed contributes to more
efficient public procurement, in accordance with the objective laid down in
Directives 2014/24 and 2014/25. As the Kingdom of the Netherlands stated at the
hearing, that e-guide allows the State to inform contracting authorities of
their obligations and the way in which they can best manage the entire public
procurement process. Accordingly, that functionality is connected with the
effective operation of the public procurement rules, which constitutes the
exercise of public powers.
91 Thus, in accordance with
the case-law established in the judgment of 12 July 2012,
Compass-Datenbank (C‑138/11, EU:C:2012:449), it must be held that that
functionality, which the Kingdom of the Netherlands is required to provide in
accordance with Directives 2014/24 and 2014/25 and which contributes to the
effective operation of the public procurement rules, is connected with the
exercise of public powers, and this would be the case even if it were separated
from the other functionalities provided by TenderNed.
92 There is little
information about the submission module in the contested decision. In recital 62
of the contested decision, the Commission merely indicated that it ensured that
public contracts were appropriately tendered in accordance with the public
procurement rules of the European Union and of the Netherlands.
93 That claim must
nevertheless be approved, since the submission of tenders is an essential part
of the public procurement procedure. The proper conduct of such a procedure is
possible only in so far as interested parties have access to effective means of
submitting tenders. In that context, the creation and making available of an
electronic means of submission such as that in the present case does not mean
that that activity should be regarded as economic.
94 It is true that, unlike
the activity of publication, in respect of which there are statutory obligations
laid down in the Procurement Law requiring contracting authorities to use the
e-procurement system set up by the Ministry, namely TenderNed, neither the
Commission nor the Kingdom of the Netherlands have claimed that such an
obligation exists as regards the activity of submitting tenders.
95 However, it must also be
borne in mind that recital 52 and Article 22 of Directive 2014/24, as well
as recital 63 and Article 40 of Directive 2014/25, establish that the
submission of tenders electronically should gradually be made mandatory, in
principle, as the Commission noted in recital 66 of the contested decision.
96 In that context, it is
necessary to take into account not only the general objective pursued by
TenderNed’s activities, to which the submission module contributes in the same
way as the publication module, namely that of offering contracting authorities
the means to comply with their statutory obligations in their public procurement
activities, but also the fact that separating the submission module from the
publication module and the e-guide, or even removing it entirely from the
overall TenderNed framework, would interfere with TenderNed’s activities and
undermine the objective pursued by Directives 2014/24 and 2014/25, as indicated
in paragraph 51 above.
97 The applicants’ arguments
cannot therefore call into question the conclusions set out in
paragraphs 52 and 60 above.
98 Fourthly, the applicants
dispute the analogy made in the contested decision between the measure at issue
in the present case and that referred to in the Commission Decision of
2 May 2013 concerning the German national website for insolvency auctions
(OJ 2013 C 167, p. 1), which led the Commission to consider that the
functionalities offered by TenderNed were connected to the exercise of public
powers.
99 In that respect, it must
be noted that, as the Commission submits in the defence, it did not rely, in the
contested decision, on that decision of 2 May 2013 reaching the conclusion
that TenderNed’s functionalities were connected with the exercise of public
powers. The Commission referred to that decision in order to emphasise that the
Member State did not forego the right to carry out a task that was inherently a
‘public authority’ activity, by acting at a particular time when private
operators — perhaps due to lack of prior action by the State — had
already taken the initiative offering services to the same end.
100 In
the third place, the applicants submit, in their ninth argument, that neither
the Procurement Law nor the explanatory memorandum to that law rules out market
mechanisms with regard to the activities of TenderNed, which provides a solid
indication that those activities do not actually fall within the scope of State
powers, but instead constitute economic activities.
101 It
must be noted that it is not envisaged that commercial platforms will cease to
exist, but rather that the introduction of TenderNed has led them, or should
lead them, to adapt.
102 Thus, the consequences of TenderNed
for private operators’ activities are envisaged in recitals 41, 46 and 69 of the
contested decision. In that respect, it should be observed that the Netherlands
authorities expect private operators to offer functionalities different from
those provided by TenderNed. Private operators are therefore encouraged to
develop additional added value services, going beyond the basic e-procurement
activities offered by TenderNed.
103 In
any event, the coexistence, alongside TenderNed, of commercial platforms on
which contracting authorities may publish their notices, as indicated in recital
69 of the contested decision, does not automatically mean that the activities
pursued by TenderNed are economic.
104 In
that respect, it must be noted that, even if the use of TenderNed were merely
optional, that could not preclude the connection of its activities with the
exercise of public powers or alter the nature of those activities (see, to that
effect, judgment of 26 March 2009, SELEX Sistemi Integrati v
Commission, C‑113/07 P, EU:C:2009:191, paragraph 79).
105 In
addition, as the Commission indicated in recital 68 of the contested decision,
the claim that, because commercial platforms offer services similar to those of
TenderNed, the Commission should have concluded that TenderNed’s activities are
economic in nature, does not take into consideration the developments that have
taken place in the e-procurement market.
106 In
that respect, it must be noted that that market had developed before Directives
2014/24 and 2014/25 were adopted and imposed an obligation on the Member States
to implement e-procurement in those States. The fact that that obligation was
decided upon at EU level implies that it was considered important to put in
place mechanisms which would ensure greater effectiveness and transparency in
public procurement. As the Slovak Republic indicated in its statement in
intervention, the trend in the development of public procurement systems in
Europe is towards e-procurement. The fact that Directives 2014/24 and 2014/25
were adopted is indicative of the intention to harmonise public procurement
within the European Union, through actions by the Member States, so that it is
carried out electronically throughout the European Union.
107 In
addition, the Netherlands authorities stated, as indicated in recital 35 of the
contested decision, that the existing commercial platforms did not offer the
conditions relating to price, objective quality characteristics, continuity and
access to the services provided that would be necessary to fulfil the general
interest objectives established by those authorities.
108 Thus, in the light of those
developments in public procurement rules, driven by public interest
considerations, the Commission was entitled to state, in recital 68 of the
contested decision, that e-procurement was a service of general interest, and
not an inherent economic activity, which could be commercially exploited so long
as the State did not offer that service itself.
109 Since the other arguments raised by
the applicants are not specifically intended to demonstrate that TenderNed’s
activities are economic in nature, they may be rejected as ineffective.
110 Thus, first of all, whether or not
the Procurement Law refers expressly to TenderNed and whether or not TenderNed
should be regarded as a ‘basic system’ for e-procurement, as the applicants
claim in their first and second arguments, has no bearing on whether the
activity performed by that central platform is economic in nature.
111 At
the hearing, the applicants recognised that those matters, on which the
Commission did not rely in reaching its decision, had no bearing on the legality
of the contested decision.
112 Next, the fact, mentioned by the
applicants in their third argument, that there was already a central platform
for the publication of public contract notices falling within the scope of the
procurement directives, namely the Tender Electronics Daily (TED) platform, with
the result that the mandatory use of TenderNed would be entirely redundant for
the purposes of achieving the objective of centralised publication, cannot call
into question the Commission’s conclusions concerning the non-economic nature of
TenderNed’s activities.
113 As
mentioned in paragraph 74 above, the Commission did not claim that it was
necessary to have a central platform in order to justify its conclusion as to
the non-economic nature of TenderNed’s activities.
114 Lastly, as regards the applicants’
fifth and sixth arguments suggesting that there are other means of ensuring
compliance with the statutory obligations imposed by the procurement directives
and criticising the Netherlands authorities, for going beyond what is envisaged
in those directives with TenderNed, it must be noted that the applicants
themselves state, in their eighth argument, that TenderNed’s compatibility with
Directives 2014/24 and 2014/25 is irrelevant to the question of whether or not
its activities are of an economic nature.
115 In
any event, those arguments raise the question whether the Kingdom of the
Netherlands correctly transposed the procurement directives, which does not fall
within the scope of the Court’s powers of review in relation to the legality of
the contested decision.
116 In
view of the foregoing, the Commission was entitled to find that the activities
performed by TenderNed were not economic in nature and that the measure at issue
in the present case did not involve State aid within the meaning of
Article 107(1) TFEU. Consequently, the single plea in law must be
rejected and the action therefore dismissed in its entirety.
Costs
117 Under Article 134(1) of the
Rules of Procedure of the General Court, the unsuccessful party is to be ordered
to pay the costs if they have been applied for in the successful party’s
pleadings. As the applicants have been unsuccessful, they must be ordered to pay
the costs, in accordance with the form of order sought by the Commission.
118 Furthermore, in accordance with
Article 138(1) of the Rules of Procedure, Member States and institutions
which intervene in proceedings are to bear their own costs. The Kingdom of the
Netherlands and the Republic of Slovakia must therefore be ordered to bear their
own costs.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1. Dismisses the
action;
2. Orders
Aanbestedingskalender BV, Negometrix BV, CTM Solution BV, Stillpoint
Applications BV and Huisinga Beheer BV to pay the costs;
3. Orders the
Kingdom of the Netherlands and the Republic of Slovakia to bear their own
costs.
|
Tomljenović |
Bieliūnas |
Marcoulli |
Delivered in open court in Luxembourg on
28 September 2017.