E-4/22 Stendi AS & Norlandia Care Norge AS v Oslo Kommune
EFTA-case
Klik hier voor het dossier van het EVA-hof (voor zover beschikbaar). Deadlines: Motivation ministry: 16 May 2022 Written observations: 29 June 2022
Keywords: procurement, non-profit organisations, nursing home services
Subject: 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
Facts of the case:
The main proceedings before Oslo District Court concern the procurement by Oslo municipality of long-term leasing and service agreements for up to 800 new, long-term places in nursing homes, published in November 2020. That part of the procurement relating to operation of the nursing home places is reserved for non-profit organisations. The plaintiffs, Stendi AS and Norlandia Care Norge AS, are not permitted to participate in the tender because they are not considered to be non-profit organisations. The defendant, Oslo municipality, has put forward three legal bases for why the procurement may be reserved for non-profit organisations, which may be briefly described as follows: principally, the procurement of the nursing home services must be considered procurement of “non-economic services of general interest” falling outside the scope of the EEA Agreement and the Public Procurement Directive. In the alternative: the procurement is exempt from the EEA Agreement under Article 32 read in conjunction with Article 39, because it involves services entailing an exercise of official authority. In the further alternative: the Public Procurement Directive does not preclude reserving the procurement of the nursing home services for non-profit organisations in the manner permitted under national law. The plaintiffs disagree with all of Oslo municipality’s abovementioned submissions. The plaintiffs submit that the services being procured come within the concept of “services” as set out in Article 37 EEA, and hence also within the concept of “services” as set out in point (9) of Article 2(1) of the Public Procurement Directive. Oslo District Court considers that it is necessary to refer questions of interpretation to the EFTA Court relating to the three legal arguments put forward by Oslo municipality in support of its position that the procurement of the nursing home services may be reserved for non-profit organisations.
Request for an advisory opinion:
On whether the procurement comes within or falls outside the concept of service:
1. Is a contract for pecuniary interest providing for the provision of long-term places in nursing homes, the procurement of which is effected under the conditions described [in the request], to be regarded as a contract relating to the provision of “services” under point (9) of Article 2(1) of Directive 2014/24/EU?
On the exception in Article 32 EEA for exercise of official authority:
1. Is a public contracting authority’s ability to rely on the exception in Article 32 of the EEA Agreement, read in conjunction with Article 39, affected by whether:
a) the services in question have previously been the subject-matter of public service contracts between the contracting authority and both non-profit organisations and other (not non-profit) providers?
b) other public contracting authorities in the same State still opt to conclude contracts for equivalent services with both non-profit organisations and other (not non-profit) providers?
c) the power to take decisions to administer coercive health care in relation to persons without legal capacity to give consent who are opposed to that health care, is not placed directly with the contracting public authority’s contractor, but rather with the health personnel working for the contractor?
2. How is the wording “even occasionally” in Article 32 of the EEA Agreement, read in conjunction with Article 39, to be construed?
On the reservation for non-profit organisations:
1. Do Articles 31 and 36 of the EEA Agreement and Articles 74 – 77 of Directive 2014/24/EU preclude national legislation allowing public contracting authorities to reserve the right to participate in tendering procedures relating to health and social services for “non-profit organisations” on the terms laid down in the national legislative provision in question?
Cited (recent) case-law: (C-47/02), (C-113/13), (C-50/14), (C-263/86), (E-13/19), (E-5/07), (C-281/06), (C-438/08), (C-169/07), (C-74/16), (C-70/95)
Policy Area: EZK, BZK
