Public procurement intended for the pursuit of certain activities in specific sectors, namely water, energy, transport and postal services, must comply with Directive 2014/25/EU (the “Utilities Directive”) and any national provisions transposing that Directive. In this regard, the Utilities Directive is deemed to constitute a derogatory, more flexible regime than that which is provided for in Directive 2014/24/EU, which is applicable to public procurement in almost any other sector (the “classical” sectors).
In July 2017, Poste Tutela, a company 100% owned by Poste Italiane, the Italian postal services company, launched a tendering procedure with a view to establishing framework agreements for caretaking, reception and access control services for the premises of Poste Italiane and of other companies in its group.
Three undertakings filed proceedings before an Italian administrative court, taking the view that the contract notice was contrary to Italian procurement legislation. In order to adjudicate on its jurisdiction, this court considered it necessary to refer questions to the Court of Justice of the European Union. In particular, it sought to know whether the Utilities Directive applied to the tendering procedure at issue.
In its judgment of 28 October 2020 (case C-521/18), the Court of Justice replied in the affirmative.
In particular, the Court of Justice underlined that, pursuant to Article 13(1) of the Utilities Directive, this directive shall apply to “activities relating to the provision of” postal services (namely services consisting of the clearance, sorting, routing and delivery of postal items), mail service management services and services concerning postal items such as direct mail bearing no address.
This wording is similar to that which is used in Article 6(1) of the former version of the Utilities Directive, namely Directive 2004/17 (repealed by Directive 2014/25). In this regard, the Court of Justice observed that it had already ruled that Directive 2004/17 applied not only to contracts awarded in the sphere of one of the activities expressly listed therein (such as postal services), but also to contracts which, even though they were different in nature and could as such normally fall within the scope of the general public procurement directive, were used “in the exercise of activities defined in” the Utilities Directive. The Court inferred from this that where a contract awarded by a contracting entity was “connected with an activity” which that entity carried out in the utilities sectors listed in the Utilities Directive, in the sense that that contract was “awarded in connection with and for the exercise of” activities in one of those sectors, the contract was subject to the procedures laid down in that directive.
The Court of Justice expressed that the wording of Article 13(1) of the Utilities Directive confirmed this interpretation. It went on to examine whether the subject matter of the tendering procedure at issue, namely “caretaking, reception and access control services for the premises of Poste Italiane and of other companies in its group”, may be regarded as being connected, within the meaning of this case law, with the activity carried out by Poste Italiane in the postal sector.
Such a connection cannot be of just any kind. More in particular, it is not sufficient for the services at issue to make a positive contribution to the activities of the contracting entity in the postal sector and increase profitability. On the contrary, the Court of Justice clarified that it is appropriate to consider as activities relating to the provision of postal services “all activities which actually serve to carry out the activity falling within the postal services sector, by enabling that activity to be carried out adequately, having regard to the normal conditions under which it is carried out, to the exclusion of activities carried out for purposes other than the pursuit of the sectoral activity concerned”.
As regards the tendering procedure at issue, the Court of Justice concluded that it is difficult to imagine that postal services may be “adequately provided” in the absence of the caretaking, reception and access control services for the premises of the provider concerned. As a result, the concerned tendering procedure was subject to the regime established in the Utilities Directive.
Therefore, the Court of Justice ruled that Article 13(1) of Directive 2014/25 must be interpreted as applying to activities consisting in the provision of caretaking, reception and access control services for the premises of postal services providers, where such activities are connected with the activity falling within the postal sector, in the sense that such activities actually serve to carry out that activity by enabling it to be carried out adequately, having regard to the normal conditions under which it is carried out.
Please contact Peter Teerlinck or Raluca Gherghinaru for further information regarding the above or for general information relating public procurement.