delivered on 13 December 2017 (1)

delivered on 13 December 2017 (1)

Case C‑9/17

Case C‑9/17

Maria Tirkkonen

Maria Tirkkonen

intervening party:

intervening party:

Maaseutuvirasto

Maaseutuvirasto

(Request for a preliminary ruling from the Korkein hallinto-oikeus (Supreme Administrative Court, Finland))

(Request for a preliminary ruling from the Korkein hallinto-oikeus (Supreme Administrative Court, Finland))

(Reference for a preliminary ruling — Directive 2004/18/EC — Tendering procedure for public contracts for farm advisory services — Whether or not there is a public contract — Scheme for obtaining services under contracts governed by a framework agreement and open to any economic operator who satisfies previously established conditions — Scheme not subsequently open to other economic operators)

(Reference for a preliminary ruling — Directive 2004/18/EC — Tendering procedure for public contracts for farm advisory services — Whether or not there is a public contract — Scheme for obtaining services under contracts governed by a framework agreement and open to any economic operator who satisfies previously established conditions — Scheme not subsequently open to other economic operators)

The support for rural development financed by the European Agriculture Fund for Rural Development (EAFRD) includes aid schemes which are intended to provide advisory services to farmers. The national authorities select the advisors who are to give their professional advice to those farmers by means of procedures which are open, in principle, to all those who satisfy the appropriate requirements for carrying out that task.

The support for rural development financed by the European Agriculture Fund for Rural Development (EAFRD) includes aid schemes which are intended to provide advisory services to farmers. The national authorities select the advisors who are to give their professional advice to those farmers by means of procedures which are open, in principle, to all those who satisfy the appropriate requirements for carrying out that task.

In one of those selection procedures, Ms Tirkkonen submitted her application to be included in the list of rural advisors, by completing the requisite form. However, she omitted to fill in the point in which she had to indicate whether she accepted the ‘conditions of the draft framework agreement’, which led the contracting authority to reject her application.

In one of those selection procedures, Ms Tirkkonen submitted her application to be included in the list of rural advisors, by completing the requisite form. However, she omitted to fill in the point in which she had to indicate whether she accepted the ‘conditions of the draft framework agreement’, which led the contracting authority to reject her application.

According to the order of the reference, that omission could be rectified if the national law governing relations between the public administration and the public were applied. However, if it were governed by the national law on public procurement, it seems that the defect would be irreparable. That, at least, was stated by both the Finnish Administration and the court of first instance which confirmed the decision.

According to the order of the reference, that omission could be rectified if the national law governing relations between the public administration and the public were applied. However, if it were governed by the national law on public procurement, it seems that the defect would be irreparable. That, at least, was stated by both the Finnish Administration and the court of first instance which confirmed the decision.

In those circumstances, the Korkein hallinto-oikeus (Supreme Administrative Court, Finland) wishes to know, in essence, whether the mechanism for selecting rural advisors which is the subject of the dispute constitutes a ‘public contract’ within the meaning of Article 1(2)(a) of Directive 2004/18/EC. (2)

In those circumstances, the Korkein hallinto-oikeus (Supreme Administrative Court, Finland) wishes to know, in essence, whether the mechanism for selecting rural advisors which is the subject of the dispute constitutes a ‘public contract’ within the meaning of Article 1(2)(a) of Directive 2004/18/EC. (2)

In replying to its doubts, it will be necessary to take account of the case-law, in relation to that concept, of the Court of Justice in the Falk Pharma case, (3) which, in my view, provides sufficient guidance for settling the dispute.

In replying to its doubts, it will be necessary to take account of the case-law, in relation to that concept, of the Court of Justice in the Falk Pharma case, (3) which, in my view, provides sufficient guidance for settling the dispute.

Article 1 (‘Definitions’) provides:

Article 1 (‘Definitions’) provides:

‘…

‘…

“Public contracts” are contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services within the meaning of this Directive.

“Public contracts” are contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services within the meaning of this Directive.

A “framework agreement” is an agreement between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the terms governing contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantity envisaged.

A “framework agreement” is an agreement between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the terms governing contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantity envisaged.

…’

…’

Article 32 (‘Framework agreements’) states:

Article 32 (‘Framework agreements’) states:

‘…

‘…

Contracts based on a framework agreement shall be awarded in accordance with the procedures laid down in paragraphs 3 and 4. Those procedures may be applied only between the contracting authorities and the economic operators originally party to the framework agreement.

Contracts based on a framework agreement shall be awarded in accordance with the procedures laid down in paragraphs 3 and 4. Those procedures may be applied only between the contracting authorities and the economic operators originally party to the framework agreement.

When awarding contracts based on a framework agreement, the parties may under no circumstances make substantial amendments to the terms laid down in that framework agreement, in particular in the case referred to in paragraph 3.

When awarding contracts based on a framework agreement, the parties may under no circumstances make substantial amendments to the terms laid down in that framework agreement, in particular in the case referred to in paragraph 3.

…

…

4. Where a framework agreement is concluded with several economic operators, the latter must be at least three in number, insofar as there is a sufficient number of economic operators that satisfy the selection criteria and/or of admissible tenders that meet the award criteria.

4. Where a framework agreement is concluded with several economic operators, the latter must be at least three in number, insofar as there is a sufficient number of economic operators that satisfy the selection criteria and/or of admissible tenders that meet the award criteria.

Contracts based on framework agreements concluded with several economic operators may be awarded either:

Contracts based on framework agreements concluded with several economic operators may be awarded either:

– by application of the terms laid down in the framework agreement without reopening competition, or

– by application of the terms laid down in the framework agreement without reopening competition, or

– where not all the terms are laid down in the framework agreement, when the parties are again in competition on the basis of the same and, if necessary, more precisely formulated terms, and, where appropriate, other terms referred to in the specifications of the framework agreement, in accordance with the following procedure:

– where not all the terms are laid down in the framework agreement, when the parties are again in competition on the basis of the same and, if necessary, more precisely formulated terms, and, where appropriate, other terms referred to in the specifications of the framework agreement, in accordance with the following procedure:

(a) for every contract to be awarded, contracting authorities shall consult in writing the economic operators capable of performing the contract;

(a) for every contract to be awarded, contracting authorities shall consult in writing the economic operators capable of performing the contract;

(b) contracting authorities shall fix a time limit which is sufficiently long to allow tenders for each specific contract to be submitted, taking into account factors such as the complexity of the subject matter of the contract and the time needed to send in tenders;

(b) contracting authorities shall fix a time limit which is sufficiently long to allow tenders for each specific contract to be submitted, taking into account factors such as the complexity of the subject matter of the contract and the time needed to send in tenders;

(c) tenders shall be submitted in writing, and their content shall remain confidential until the stipulated time limit for reply has expired;

(c) tenders shall be submitted in writing, and their content shall remain confidential until the stipulated time limit for reply has expired;

(d) contracting authorities shall award each contract to the tenderer who has submitted the best tender on the basis of the award criteria set out in the specifications of the framework agreement.’

(d) contracting authorities shall award each contract to the tenderer who has submitted the best tender on the basis of the award criteria set out in the specifications of the framework agreement.’

Article 53 (‘Contract award criteria’) provides:

Article 53 (‘Contract award criteria’) provides:

‘1. Without prejudice to national laws, regulations or administrative provisions concerning the remuneration of certain services, the criteria on which the contracting authorities shall base the award of public contracts shall be either:

‘1. Without prejudice to national laws, regulations or administrative provisions concerning the remuneration of certain services, the criteria on which the contracting authorities shall base the award of public contracts shall be either:

(a) when the award is made to the most economically advantageous tender from the point of view of the contracting authority, various criteria linked to the subject matter of the contract in question: for example, quality, price, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, cost-effectiveness, after-sales service and technical assistance, delivery date and delivery period or period of completion, or

(a) when the award is made to the most economically advantageous tender from the point of view of the contracting authority, various criteria linked to the subject matter of the contract in question: for example, quality, price, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, cost-effectiveness, after-sales service and technical assistance, delivery date and delivery period or period of completion, or

(b) the lowest price only.

(b) the lowest price only.

The weightings can be expressed by providing for a range with an appropriate maximum spread.

The weightings can be expressed by providing for a range with an appropriate maximum spread.

Where, in the opinion of the contracting authority, weighting is not possible for demonstrable reasons, the contracting authority shall indicate in the contract notice or contract documents or, in the case of a competitive dialogue, in the descriptive document, the criteria in descending order of importance.’

Where, in the opinion of the contracting authority, weighting is not possible for demonstrable reasons, the contracting authority shall indicate in the contract notice or contract documents or, in the case of a competitive dialogue, in the descriptive document, the criteria in descending order of importance.’

Article 15(3) provides:

Article 15(3) provides:

‘The authorities or bodies selected to provide advice shall have the appropriate resources in the form of regularly trained and qualified staff and advisory experience and reliability with respect to the fields in which they advise. The beneficiaries under this measure shall be chosen through calls for tenders. The selection procedure shall be governed by public procurement law and shall be open to both public and private bodies. It shall be objective and shall exclude candidates with conflicts of interest.

‘The authorities or bodies selected to provide advice shall have the appropriate resources in the form of regularly trained and qualified staff and advisory experience and reliability with respect to the fields in which they advise. The beneficiaries under this measure shall be chosen through calls for tenders. The selection procedure shall be governed by public procurement law and shall be open to both public and private bodies. It shall be objective and shall exclude candidates with conflicts of interest.

…’

…’

Article 7 provides:

Article 7 provides:

‘The calls for tenders referred to in Article 15(3) of Regulation (EU) No 1305/2013 shall follow the applicable Union and national public procurement rules. They shall give due consideration to the degree of attainment by the applicants of the qualifications referred to in that Article.’

‘The calls for tenders referred to in Article 15(3) of Regulation (EU) No 1305/2013 shall follow the applicable Union and national public procurement rules. They shall give due consideration to the degree of attainment by the applicants of the qualifications referred to in that Article.’

Directive 2004/18 was transposed in Finland by the Law on public procurement (Law 348/2007).

Directive 2004/18 was transposed in Finland by the Law on public procurement (Law 348/2007).

Under Article 45(1) of the Law on the implementation of agricultural aid (Law 192/2003, as amended by Law 501/2014), advisors are selected in compliance with the provisions of the Law on public procurement and for a period ending on the expiry of the 2014-2020 Rural Development Programme for Mainland Finland.

Under Article 45(1) of the Law on the implementation of agricultural aid (Law 192/2003, as amended by Law 501/2014), advisors are selected in compliance with the provisions of the Law on public procurement and for a period ending on the expiry of the 2014-2020 Rural Development Programme for Mainland Finland.

Under Article 45(2), a condition of selection and admittance is that the advisor has adequate expertise in terms of the status and scope of the advisory task. He must also satisfy the conditions as to capability.

Under Article 45(2), a condition of selection and admittance is that the advisor has adequate expertise in terms of the status and scope of the advisory task. He must also satisfy the conditions as to capability.

II. The facts

II. The facts

On 16 September 2014, the Maaseutuvirasto (Finnish Agency for Rural Affairs, ‘the Agency’) issued an invitation to tender for farm advisory services for the period 2015-2020 to be carried out as a framework agreement in an open procedure.

On 16 September 2014, the Maaseutuvirasto (Finnish Agency for Rural Affairs, ‘the Agency’) issued an invitation to tender for farm advisory services for the period 2015-2020 to be carried out as a framework agreement in an open procedure.

It was stated in the contract notice that the procedure was open to public and private advisors and that its aim was to have service providers who satisfied the conditions of Article 15(3) of Regulation No 1305/2013 and Article 13(1) of Regulation (EU) No 1306/2013, (6) and who also had advisory experience.

It was stated in the contract notice that the procedure was open to public and private advisors and that its aim was to have service providers who satisfied the conditions of Article 15(3) of Regulation No 1305/2013 and Article 13(1) of Regulation (EU) No 1306/2013, (6) and who also had advisory experience.

The system of selection was based on a framework agreement, in accordance with the public procurement law, in such a way that the service providers would be included in the agreement under an open procedure pursuant to Article 65 of that law.

The system of selection was based on a framework agreement, in accordance with the public procurement law, in such a way that the service providers would be included in the agreement under an open procedure pursuant to Article 65 of that law.

The framework agreement set out the principal conditions for provision of the service. The subsequent contracts were awarded without a specific award procedure, in such a way as to permit the farmer/land user entitled to advisory services to obtain them from the person whom he considered would best fulfil his needs. In principle, advisors in nearby areas were called upon to provide services, but on proper grounds other advisors could also be used.

The framework agreement set out the principal conditions for provision of the service. The subsequent contracts were awarded without a specific award procedure, in such a way as to permit the farmer/land user entitled to advisory services to obtain them from the person whom he considered would best fulfil his needs. In principle, advisors in nearby areas were called upon to provide services, but on proper grounds other advisors could also be used.

The advisors were to be paid an hourly rate by the Agency (not including VAT, which would be paid by the farmer who received the services).

The advisors were to be paid an hourly rate by the Agency (not including VAT, which would be paid by the farmer who received the services).

Having regard to the need for the advisory service, all the advisors who met the conditions as to capability and the minimum requirements laid down in the annexes to the framework agreement would be selected. In addition, the candidates had to pass a separate examination, as part of the selection procedure.

Having regard to the need for the advisory service, all the advisors who met the conditions as to capability and the minimum requirements laid down in the annexes to the framework agreement would be selected. In addition, the candidates had to pass a separate examination, as part of the selection procedure.

By the decision of 18 December 2014, the Agency excluded the application submitted by Ms Tirkkonen, on the ground that she had not filled in Point 7 of the tender form entitled ‘Observance of the formal requirements of the bid and compliance with tender conditions’ (Annex 2 to the tender). In that paragraph, she should have indicated, by marking ‘yes’ or ‘no’, whether she ‘accepted the tender conditions of the draft framework agreement appended to the tender’.

By the decision of 18 December 2014, the Agency excluded the application submitted by Ms Tirkkonen, on the ground that she had not filled in Point 7 of the tender form entitled ‘Observance of the formal requirements of the bid and compliance with tender conditions’ (Annex 2 to the tender). In that paragraph, she should have indicated, by marking ‘yes’ or ‘no’, whether she ‘accepted the tender conditions of the draft framework agreement appended to the tender’.

Ms Tirkkonen challenged the Agency’s decision before the Markkinaoikeus (Market Court, Finland), maintaining that the procedure did not concern the award of a public contract. Accordingly, public procurement law was not applicable, but rather administrative law, which required the Agency to request her to complete her documentation.

Ms Tirkkonen challenged the Agency’s decision before the Markkinaoikeus (Market Court, Finland), maintaining that the procedure did not concern the award of a public contract. Accordingly, public procurement law was not applicable, but rather administrative law, which required the Agency to request her to complete her documentation.

Following the dismissal of her action, on 7 September 2015, by the Markkinaoikeus (Market Court), Ms Tirkkonen brought an appeal before the Korkein hallinto-oikeus (Supreme Administrative Court), which raises the question for a preliminary ruling.

Following the dismissal of her action, on 7 September 2015, by the Markkinaoikeus (Market Court), Ms Tirkkonen brought an appeal before the Korkein hallinto-oikeus (Supreme Administrative Court), which raises the question for a preliminary ruling.