In its judgment of 6 June 2019 in the case C‑264/18, the Court of Justice ruled that the exclusion of certain legal services from the scope of application of the Public Procurement Directive (Directive 2014/24/EU) does not infringe the principle of equal treatment.
In a preliminary reference from the Belgian Constitutional Court, the Court of Justice was asked to verify whether certain exclusions from the scope of application of the Public Procurement Directive were compatible with the principles of equal treatment and subsidiarity as well as the freedom to provide services and the freedom of establishment. The exclusions under scrutiny were the exclusions for (i) arbitration and conciliation services, (ii) legal representation by a lawyer during certain proceedings, (iii) legal advice by a lawyer in preparation for (or in view of the probability of) certain proceedings and (iii) legal services which are connected with the exercise of official authority.
In its judgment, the Court of Justice first decides that the principle of subsidiarity has not been infringed as it is for national legislators to determine whether the services at issue should be excluded. Moreover, the Court acknowledges that the award of public contracts must indeed comply with the freedom of establishment and the freedom to provide services but refutes the argument that the exclusions could adversely affect these freedoms.
Subsequently, the Court concludes that the EU legislator did not infringe the principle of equal treatment by excluding these services from the scope of the Public Procurement Directive as these services are not comparable with the services that are subject to the Directive.
In that context, it is clarified that arbitration and conciliation services are different from other services because arbitrators and mediators must always be accepted by all parties. In the same vein, the Court considers that the excluded legal services provided by lawyers are different from other services as they are characterised, amongst others, by the free choice of representative and the confidentiality of a lawyer-client relationship. According to the Court, these objective characteristics render it difficult to organise a public tender for these services. As regards the legal services which are connected to the exercise of official authority, the Court points out that these services are different simply because they are excluded from the scope of application of the freedom of establishment and the freedom to provide services.
Please contact Peter Teerlinck or Raluca Gherghinaru for further information on this case and/or for general advice on public procurement.