7 July 2022 (*1)

(Reference for a preliminary ruling – Public procurement – Directive 2014/24/EU – Scope – Article 10(h) – Specific exclusions for service contracts – Civil defence, civil protection and danger prevention services – Non-profit organisations or associations – Ambulance service classified as an emergency service – Voluntary organisations – Social cooperatives)

In Joined Cases C‑213/21 and C‑214/21,

REQUESTS for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Council of State, Italy), made by decisions of 18 January and 3 March 2021, received at the Court on 6 April 2021, in the proceedings

Italy Emergenza Cooperativa Sociale (C‑213/21 and C‑214/21)

Azienda Sanitaria Locale Barletta-Andria-Trani (C‑213/21),

Azienda Sanitaria Provinciale di Cosenza (C‑214/21),

interveners:

Regione Puglia (C‑213/21),

Confederazione Nazionale delle Misericordie d’Italia (C‑213/21),

Associazione Nazionale Pubbliche Assistenze (Organizzazione nazionale di volontariato) – ANPAS ODV (C‑213/21 and C‑214/21),

Croce Rossa Italiana – Comitato Provinciale di Cosenza (C‑214/21),

THE COURT (Eighth Chamber),

composed of N. Jääskinen, President of the Chamber, M. Safjan and M. Gavalec (Rapporteur), Judges,

Advocate General: A.M. Collins,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–Italy Emergenza Cooperativa Sociale, by S. Betti, M. Dionigi, C. Santuori and P. Stallone, avvocati,

–Confederazione Nazionale delle Misericordie d’Italia, by F. Sanchini and P. Sanchini, avvocati,

–Associazione Nazionale Pubbliche Assistenze (Organizzazione nazionale di volontariato) – ANPAS ODV, by V. Migliorini, avvocato,

–the Italian Government, by G. Palmieri, acting as Agent, and by F. Sclafani, avvocato dello Stato,

–the Spanish Government, by M.J. Ruiz Sánchez, acting as Agent,

–the Netherlands Government, by M.K. Bulterman and J. Langer, acting as Agents,

–the Kingdom of Norway, by J.T. Kaasin and H. Røstum, acting as Agents,

–the European Commission, by G. Gattinara, P. Ondrůšek and G. Wils, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Legal context

European Union law

‘(28) This Directive should not apply to certain emergency services where they are performed by non-profit organisations or associations, since the particular nature of those organisations would be difficult to preserve if the service providers had to be chosen in accordance with the procedures set out in this Directive. However, the exclusion should not be extended beyond that strictly necessary. It should therefore be set out explicitly that patient transport ambulance services should not be excluded. In that context it is furthermore necessary to clarify that CPV Group 601 ‘Land Transport Services’ does not cover ambulance services, to be found in CPV class 8514. It should therefore be clarified that services, which are covered by CPV code 85143000‑3, consisting exclusively of patient transport ambulance services should be subject to the special regime set out for social and other specific services (the ‘light regime’). Consequently, mixed contracts for the provision of ambulance services in general would also be subject to the light regime if the value of the patient transport ambulance services were greater than the value of other ambulance services. ‘

…

(118) In order to ensure the continuity of public services, this Directive should allow that participation in procurement procedures for certain services in the fields of health, social and cultural services could be reserved for organisations which are based on employee ownership or active employee participation in their governance, and for existing organisations such as cooperatives to participate in delivering these services to end users. This provision is limited in scope exclusively to certain health, social and related services, certain education and training services, library, archive, museum and other cultural services, sporting services, and services for private households, and is not intended to cover any of the exclusions otherwise provided for by this Directive. Those services should only be covered by the light regime.’

‘This Directive shall not apply to public service contracts for:

…

(h) civil defence, civil protection, and danger prevention services that are provided by non-profit organisations or associations, and which are covered by CPV codes 75250000‑3, 75251000‑0, 75251100‑1, 75251110‑4, 75251120‑7, 75252000‑7, 75222000‑8, 98113100‑9 and 85143000‑3 except patient transport ambulance services;

…’

‘1. Member States may provide that contracting authorities may reserve the right for organisations to participate in procedures for the award of public contracts exclusively for those health, social and cultural services referred to in Article 74, which are covered by CPV codes 75121000‑0, 75122000‑7, 75123000‑4, 79622000‑0, 79624000‑4, 79625000‑1, 80110000‑8, 80300000‑7, 80420000‑4, 80430000‑7, 80511000‑9, 80520000‑5, 80590000‑6, from 85000000‑9 to 85323000‑9, 92500000‑6, 92600000‑7, 98133000‑4, 98133110‑8.

(a) its objective is the pursuit of a public service mission linked to the delivery of the services referred to in paragraph 1;

(b) profits are reinvested with a view to achieving the organisation’s objective. Where profits are distributed or redistributed, this should be based on participatory considerations;

(c) the structures of management or ownership of the organisation performing the contract are based on employee ownership or participatory principles, or require the active participation of employees, users or stakeholders;

…’

‘The provisions of this code do not apply to public contracts or service concessions in respect of:

…

(h) civil defence, civil protection, and danger prevention services that are provided by non-profit organisations or associations, and which come under CPV codes 75250000‑3, 75251000‑0, 75251100‑1, 75251110‑4, 75251120‑7, 75252000‑7, 75222000‑8, 98113100‑9 and 85143000‑3 except patient transport ambulance services;

…’

‘Third sector organisations include voluntary organisations, associations for social advancement, philanthropic entities, social enterprises, including social cooperatives, association networks, mutual benefit societies, recognised or unrecognised associations, foundations and private-law entities, other than corporations, created for the non-profit-making pursuit of civic objectives or objective of solidarity or social utility, which carry on, exclusively or principally, one or more activities of general interest in the form of voluntary work or the free provision of money, goods or services, or mutual assistance or production, or the exchange of goods or services, and which are registered in the national third sector register.’

‘1. Emergency ambulance transport services may be awarded, on a preferential basis, by contract, to voluntary organisations which have been registered for at least six months in the national third sector register, belong to a network of associations referred to in Article 41(2) and are accredited under the relevant regional legislation, if any, where, by reason of the particular nature of the service, direct contracting ensures that a service which is in the public interest can be provided within a framework of effective contributions to social goals, which pursues objectives of solidarity, in an economically efficient and appropriate manner and in accordance with the principles of transparency and non-discrimination.

‘Cooperatives that are predominantly mutual shall include in their articles of association:

(a) a prohibition on the distribution of dividends on capital invested that would exceed the maximum interest payable on post office savings certificates plus 2.5 percent;

(b) a prohibition on the remuneration of financial instruments offered for subscription by cooperative members that would exceed the maximum limit fixed for dividends by two percent;

(c) a prohibition on the distribution of reserves among cooperative members;

(d) the obligation, in the event of the winding up of the cooperative society, to attribute all the assets, deducting only the share capital and any dividends acquired, to mutual funds for the promotion and development of cooperation;

Cooperatives shall take a decision on the insertion and deletion of the clauses referred to in the preceding paragraph based on the majorities set for the extraordinary general meeting.’

‘The instrument of incorporation shall define the criteria for the distribution of rebates to members in proportion to the quantity and quality of mutual exchanges.

…

The general meeting may decide to distribute rebates to each member, including a proportionate increase in the respective shares or the issue of new shares, in derogation from Article 2525, or by issuing financial instruments.’

‘1. Without prejudice to paragraph 3 and to Article 16, a social enterprise shall allocate any profits and operating surpluses to the pursuit of its activities under its articles of association or to the increase of its assets.

(a) the payment to the administrators, auditors and any person exercising a social mandate, of individual remuneration which is not proportionate to the activity carried out, to the responsibilities assumed and to the specific skills or, in any event, which is greater than the remuneration paid in entities operating in identical or similar sectors and circumstances.

…

2a. For the purposes referred to in paragraphs 1 and 2, the distribution, between members, of rebates associated with an activity in the general interest referred to in Article 2, carried out in accordance with Article 2545e of the Civil Code and in compliance with the conditions and limits laid down by law and their articles of association, by social enterprises incorporated in the form of cooperative societies, shall not be considered to be a distribution, even indirectly, of profits and operating surpluses, provided that their articles of association or instrument of incorporation indicate the criteria for the distribution of rebates to members in proportion to the quantity and quality of mutual exchanges and provided that a mutual operating surplus is recorded.

…’

The disputes in the main proceedings and the questions referred for a preliminary ruling

Case C‑213/21

That court dismissed the action. First, it held that the service which was the subject of that call for tenders was an ambulance transport service in a ‘qualified’ ambulance, falling within the exception provided for in Article 10(h). Second, that court held that the exclusion of social cooperatives from the scope of that exception complied with EU law because those cooperatives pursued a business purpose justifying treatment that differed from the treatment of voluntary organisations or associations which do not pursue a profit-making objective. In the present case, as regards Italy Emergenza, its exclusion is justified in the light of Article 5 of that social cooperative’s articles of association, which provides for the possibility of distributing dividends of a limited amount.

Italy Emergenza brought an appeal against the judgment of the Tribunale amministrativo regionale per la Puglia (Regional Administrative Court, Puglia) before the Consiglio di Stato (Council of State, Italy), the referring court, again stating that Article 57 of Legislative Decree No 117/2017 infringes Article 10(h) of Directive 2014/24.

The Consiglio di Stato (Council of State) has doubts as to whether Article 57 of Legislative Decree No 117/2017 complies with Article 10(h) of Directive 2014/24. While Article 57 mentions only voluntary organisations and, therefore, appears to exclude the award, by contract, of emergency ambulance transport services to social cooperatives, Article 10(h) refers to ‘non-profit’ organisations or associations and is not limited solely to voluntary organisations or associations.

In that context, the referring court states, first of all, that, in the judgment of 21 March 2019, Falck Rettungsdienste and Falck (C‑465/17, EU:C:2019:234), the Court held that organisations and associations whose purpose is to undertake social tasks, which have no commercial purpose and which reinvest any profits in order to achieve their objective constitute ‘non-profit organisations or associations’ within the meaning of Article 10(h) of Directive 2014/24. The Court has thus emphasised that the decisive criterion for falling within that provision is the pursuit of a non-profit-making objective. According to the referring court, a social cooperative such as Italy Emergenza is characterised by the absence of a profit-making objective. Article 6 of its articles of association states that ‘the social cooperative operates on a non-profit-making basis and pursues the general interest of the community in human advancement and social integration’. It is true that Article 5 of those articles of association provides for ‘a prohibition on the distribution of dividends on capital invested that would exceed the maximum interest payable on post office savings certificates plus 2.5 percent’. However, Article 5 cannot be regarded as having probative value, since it is a provision that reproduces Article 2514 of the Civil Code.

Next, the referring court states that social cooperatives differ from voluntary organisations or associations. While the latter do not confer any economic advantage, even indirectly, on their members and merely reimburse the costs incurred by their members, social cooperatives produce an economic advantage for their members, even if they pursue objectives of integration and social advancement on a non-profit basis. Thus, those cooperatives are characterised by their business purpose of a mutual nature. However, that court puts that difference into context, because it is apparent from the case-law of the Court that a contract whereby the sole consideration is the reimbursement of costs incurred falls within the concept of a ‘public contract’ as a contract for pecuniary interest.

In addition, the referring court notes another factor capable of lessening the difference between voluntary organisations or associations and social cooperatives. This is, first, the fact that a voluntary organisation or association can employ workers and, second, the fact that a social cooperative can have voluntary members to whom only their expenses are reimbursed.

Finally, that court states that, even if, unlike voluntary organisations or associations, a social cooperative cannot be awarded, on a preferential basis, by contract, an emergency ambulance transport service, pursuant to Article 57 of Legislative Decree No 117/2017, the award of such a service to a social cooperative can take place only following a public procurement procedure, which, however, is contrary to Article 10(h) of Directive 2014/24.

In those circumstances, the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling: ‘Does Article 10(h) of Directive [2014/24] – together with recital 28 of that directive – preclude national legislation which provides that contracts for the provision of emergency ambulance transport services may be directly awarded, on a preferential basis, solely to voluntary organisations – provided that they have been registered for at least six months in the national third sector register, belong to a network of associations and are accredited under the relevant sectoral regional legislation (if any) and on the condition that such an award ensures that the service can be provided within a framework of effective contributions to social goals, which pursues objectives of solidarity, in an economically efficient and appropriate manner and in accordance with the principles of transparency and non-discrimination – to the exclusion of other non-profit organisations, and more specifically social cooperatives, such as non-profit-making social enterprises?’

Case C‑214/21

By a notice published on 26 February 2020, the Azienda Sanitaria Provinciale di Cosenza launched a selection procedure for the award, by contract, of the emergency ambulance transport service, for the territory within its competence, to voluntary organisations and the Croce Rossa Italiana (Italian Red Cross).

Taking the view that that call for tenders contained unlawful clauses which prevented it from taking part in that procedure, Italy Emergenza challenged that call for tenders by bringing an action before the Tribunale amministrativo regionale per la Calabria (Regional Administrative Court, Calabria, Italy), relying on the same pleas as those set out in paragraph 13 of the present judgment.

That court dismissed that action on the same grounds as those set out in paragraph 14 of the present judgment.

Italy Emergenza brought an appeal before the Consiglio di Stato (Council of State), the referring court, which, on the same grounds as those set out in paragraphs 16 to 20 of the present judgment, has doubts as to whether Article 57 of Legislative Decree 117/2017 is compatible with Article 10(h) of Directive 2014/24. That court is also unsure of the effect of Article 3(2)a of Legislative Decree No 112/2017, which authorises a social cooperative not to reinvest all of its profits and to distribute them to its members in the form of rebates.

In those circumstances, the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling: ‘Does Article 10(h) of Directive [2014/24] – together with recital 28 of that directive – preclude national legislation which provides that contracts for the provision of emergency ambulance transport services may be directly awarded, on a preferential basis, solely to voluntary organisations – provided that they have been registered for at least six months in the national third sector register, belong to a network of associations and are accredited under the relevant sectoral regional legislation (if any) and on the condition that such an award ensures that the service can be provided within a framework of effective contributions to social goals, which pursues objectives of solidarity, in an economically efficient and appropriate manner and in accordance with the principles of transparency and non-discrimination – to the exclusion of other non-profit organisations, and more specifically social cooperatives, such as non-profit-making social enterprises, including social cooperatives which offer rebates to their members in relation to activities of general interest, within the meaning of Article 3(2)a of Legislative Decree No 112/2017?’

Consideration of the questions referred for a preliminary ruling

By its question in Case C‑213/21 and its question in Case C‑214/21, which it is appropriate to examine together, the referring court asks, in essence, whether Article 10(h) of Directive 2014/24 precludes national legislation which provides that emergency ambulance transport services may be awarded, by contact, on a preferential basis, only to voluntary organisations, and not to social cooperatives which can offer rebates associated with their activities to their members.

It should be noted that Article 10(h) of Directive 2014/24 excludes from its scope public service contracts for services falling within the CPV codes referred to in that provision and which are provided by ‘non-profit organisations or associations’.

However, that directive does not define the concept of ‘non-profit’ organisations or associations.

In accordance with the requirements for the uniform application of EU law and the principle of equality, the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, having regard to the context of the provision and the objective pursued by the legislation in question (see, to that effect, judgment of 21 March 2019, Falck Rettungsdienste and Falck, C‑465/17, EU:C:2019:234, paragraph 28 and the case-law cited).

In the first place, the concept of ‘non-profit’ organisations or associations is, by definition, in contrast to a profit-making group which is established for the purpose of making a profit. In that sense, that concept appears sufficiently broad to cover organisations based on employee ownership or active employee participation in the governance of those organisations, such as social cooperatives, provided that they pursue a non-profit-making objective.

In the second place, the objective of the exception provided for in Article 10(h) of Directive 2014/24 is, as stated in recital 28 of that directive, to preserve the particular nature of non-profit organisations and associations by preventing them from being subject to the procedures set out in that directive. However, that recital states that that exclusion must not be extended beyond what is strictly necessary. In that respect, that exception must, as a derogation from the scope of that directive, be interpreted strictly (see, by analogy, judgment of 20 March 2018, Commission v Austria(State printing office), C‑187/16, EU:C:2018:194, paragraph 77).

It follows that the concept of ‘non-profit’ organisations or associations, within the meaning of Article 10(h) of Directive 2014/24, must be strictly confined to organisations and associations of a particular nature, that is to say, those which do not pursue a profit-making objective and which cannot provide any benefit, even indirectly, to their members.

In the third place, it should be noted that the Court has held that organisations and associations whose purpose is to undertake social tasks, which have no commercial purpose and which reinvest any profits in order to achieve the objective of that organisation or association, fall within that concept (judgment of 21 March 2019, Falck Rettungsdienste and Falck, C‑465/17, EU:C:2019:234, paragraph 59).

By requiring that any profits be reinvested in order to achieve the objective of the organisation or association concerned, the Court, first, considered that those profits had to be allocated for the performance of the social tasks pursued by that organisation or association and, second, clearly ruled out the possibility that those profits could be distributed to the shareholders or members of that organisation or association. It follows that organisations or associations which are able to distribute profits to their members do not fall within the scope of Article 10(h) of Directive 2014/24.

That interpretation is, moreover, supported by Article 77 of that directive, read in the light of recital 118 of the directive, which authorises Member States to provide that contracting authorities may reserve, for organisations that satisfy the conditions listed in Article 77(2), the right to participate in special procedures for the award of public contracts, exclusively in respect of certain services. Those conditions include, first, in point (b) of Article 77(2), the condition that, where profits are distributed or redistributed, this should be based on participatory considerations and, second, in point (c) of Article 77(2), the condition that the structures of management or ownership of the organisation performing the contract are based on employee ownership or participatory principles, or require the active participation of employees, users or stakeholders.

Thus, the EU legislature has provided for different treatment between, on the one hand, ‘non-profit’ organisations or associations referred to in Article 10(h) of Directive 2014/24 and, on the other hand, the organisations referred to in the preceding paragraph of the present judgment. It follows that the organisations and associations referred to in Article 10(h) of that directive cannot be treated in the same way as organisations based on employee ownership or active employee participation in the governance of the organisation, such as cooperatives, referred to in recital 118 and Article 77 of that directive (see, to that effect, judgment of 21 March 2019, Falck Rettungsdienste and Falck, C‑465/17, EU:C:2019:234, paragraph 60).

It follows from the foregoing considerations that, where the members of an association or organisation can obtain a benefit, even indirectly, linked to the activities of that association or organisation, that association or organisation cannot fall within the exception laid down in Article 10(h) of Directive 2014/24.

In the present case, and without prejudice to the analysis of the national legislation and the articles of association of the organisations in question in the main proceedings, which it is for the referring court to carry out, it follows from a reading of Article 3(2)a of Legislative Decree No 112/2017 in conjunction with Article 34 of the articles of association of Italy Emergenza that the general meeting may decide to offer rebates to each of the members. As is apparent from both the orders for reference and the observations of several interested parties, since rebates are an instrument allowing an advantage to be conferred on the members of a cooperative, the existence of such a possibility of distributing ‘profits’ would have to preclude the classification of a social cooperative, such as Italy Emergenza, as a ‘non-profit’ organisation or association, within the meaning of Article 10(h) of Directive 2014/24.

The answer to the questions referred is, therefore, that Article 10(h) of Directive 2014/24 must be interpreted as not precluding national legislation which provides that emergency ambulance transport services may be awarded, by contract, on a preferential basis, only to voluntary organisations, and not to social cooperatives which can offer rebates associated with their activities to their members.

Costs

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Eighth Chamber) hereby rules:

Article 10(h) 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 must be interpreted as not precluding national legislation which provides that emergency ambulance transport services may be awarded, by contract, on a preferential basis, only to voluntary organisations, and not to social cooperatives which can offer rebates associated with their activities to their members.

[Signatures]

*1 Language of the case: Italian.